The young man knows the rules, but the old man knows the exceptions.
Oliver Wendell Holmes, Sr.
Judge Chamberlain Haller: All I ask from you is a very simple answer to a very simple question. There are only two ways to answer it: guilty or not guilty.
Attorney Vinny Gambini: But your honor, my clients didn’t do anything.
Judge Haller: Once again, the communication process broken down. It appears to me that you want to skip the arraignment process, go directly to trial, skip that, and get a dismissal. Well, I’m not about to revamp the entire judicial process just because you find yourself in the unique position of defending clients who say they didn’t do it.
My Cousin Vinny (film, 1992)
It was a delightful evening at the Grotius Centre for International Legal Studies at Leiden University Law School. The students came armed with serious questions. To my relief, none asked the usual how could I defend those people? or what if you know (or believe) your client is guilty? With the exception of one or two occasionally checking their smart phones, they seemed focused and interested. While I like to think my presentation had something to do with this, I believe the real reason is because these bright, motivated and prepared students were keen to hear about the practical applications of the theoretical substance of international criminal procedure.
For nearly three hours, I fielded questions. I went into the class with no prepared notes or plan. My intention was not to lecture but to provide the defence perspective on whatever topics interested them. The students have had a semester on international criminal law. This semester, well under way, is about the procedure. Prof. Powderly has brought other practitioners to give their perspectives and share their experiences. This evening, it was about the defence. The questions were practical, grounded and focused on issues related to the procedural rights of the accused.
While the students benefit from hearing practical answers to their procedural questions that went beyond the text of a rule or fair trial right provision in an international instrument, truth be told, I get as much out of these occasions as the students. I generally take the questions up front. This allows me to work on my courtroom craft of public speaking, responding to questions from the bench, and making and meeting objections during trial. The aim is to seamlessly weave in and rearrange the questions so what is proffered, hopefully, is a coherent presentation that is spontaneous, informative, and engaging, with a mix of substance, passion, humor, and a few war stories. I leave it to the students to evaluate my performance, but as far as the questions posed, I put them in the B+ / A- range.
During the break, Prof. Powderly told me that for the next class he was planning to have the students watch an Irving Younger lecture. I told him that I had the opportunity to attend a lecture by the inimitable Younger while in law school. I recall the lecture as having been every bit as exhilarating and entertaining as his lectures appear on video. His sermon on the Ten Commandments of Cross-Examination was particularly absorbing. Yet, I found a couple of things he said perplexing, such as don’t ask the one question too many. Mustering courage and temerity to privately approach him I asked – as if accosting a magician for the big reveal – what is the one question too many? Grinning he responded you’ll know it when you ask it. But how? – I persisted. The answer will hurt so much you’ll know you shouldn’t have asked it. It would take me some time to figure out the answer for myself. And that came from practice: prefacing a question on cross-examination with the conjunction “so” turns the leading question into an open-ended one, allowing for a lengthy and often unwelcome retort.
As my conversation with Younger was ending (he was graciously patient in answering my questions), I asked: how does one become a very good trial lawyer? Without hesitation, he just said read literature; there is nothing about the human condition that has not been explored in literature. Sage advice. He might also have added that it would also help with writing skills, storytelling, analytical skills, and, perhaps most importantly, refraining from reflectively accepting what is most apparent and looking beneath the surface and see what is or is not there.
Also on the assignment list by Prof. Powderly was the film My Cousin Vinny. A classic pedagogical tool. It has just about everything you would need to know about adversarial trials, preparation, and requisite techniques on questioning and use of expert witnesses. I also recommended Anatomy of a Murder, Witness for the Prosecution, and either or both versions of Twelve Angry Men. Perhaps one day I will do a post on literature and film for trial advocacy training.
As I walked out of the wonderfully located Hague campus building of the Grotius Centre – the city where the International Criminal Court (ICC), Kosovo Specialist Chambers, and International Residual Mechanism for Criminal Tribunals are all located – I asked Prof. Powderly why his university had not clinical program. With the courts and practitioners in The Hague, why is Leiden University not offering to their graduate students the opportunity to develop practical skills in international criminal law? University of Amsterdam is leading the charge in offering clinical programs. It seems the fever has broken. The long-held taboo of reputable law schools offering anything other than theoretical courses and not sullying their reputations by offering “professional training” is over.
There was a time when the most prestigious law Schools in the US would not dare incorporate clinical programs into their elective curricula. These haughty institutions saw such practical learning as beneath the mission of a proper law school, where like in the film Paper Chase, professors in the ilk of the condescendingly domineering Prof. Kingsfield saw their mission to turn students, whose brains were full of mush, into thinking lawyers.
Times have changed. The benefits of clinical programs are undisputable. Just as it is undisputable that most law school graduates are not equipped for practice when they leave the comforts of the classroom. At most, the students would have had the opportunity to attend a short moot court training. That is not sufficient. What about learning how to draft submissions, how to formulate written and oral arguments, strategic and tactical thinking, appreciating the evidentiary principles in order to understand how to make and meet objections to the admission of evidence, how to discern the operative facts (separating the wheat from the chaff) in order to identify the essential issues that must be addressed, etc.
Let me give you one example: the Criminal Law Clinic at the Cardozo School of Law in New York City. Having taught for many years at Cardozo’s Intensive Trial Advocacy Program, I have met many Cardozo clinic students and alums, all of whom have turned out to be formidable trial lawyers (and not just in criminal law). Full disclosure: one of those former clinic students is Alan Yatvin, whom I consider to be a lawyer’s lawyer, is a very good friend. Yatvin went on to be a criminal defense attorney, a specialist in police misconduct litigation, a children’s disability rights lawyer with a national reputation in the rights of children with diabetes, and a successful appellate lawyer. Our friendship aside, he is my go-to person when I need to brainstorm strategic or tactical decisions, suss out evidentiary issues, or have a sounding board on matters of professional conduct and ethics.
The Cardozo Criminal Law Clinic was started by former New York Legal Aid lawyers Barry Scheck (of People v. O.J. Simpson trial and co-founder of the Innocence Project fame) and Larry Vogelman (now a lawyer in New Hampshire, where he focuses on civil rights, criminal defense and complex civil litigation). The cutting edge program had 18 students in the full year clinical program. In addition to classroom lessons on trial strategy and advanced evidence, and intensive mock trial experience, pairs of students were assigned their own misdemeanor case load under the auspices of the Bronx office of the Legal Aid Society. With supervision from the clinical professors and experienced Legal Aid lawyers, they handled cases at all stages, including arraignment, investigation, pre-trial motion practice, trial or non-trial disposition, and sentencing. Many of the students also provided support to clinical Professors Scheck and Vogelman in trying high-profile criminal cases in United States District Court. Yatvin reports that it was a heady time, with complete immersion in the world of criminal defense.
Like Yatvin, who joined the Defender Association of Philadelphia following graduation, several of his classmates went on to legal aid or public defender offices, while others joined firms of various types and sizes. What was clear, though, is whatever path their careers took these clinical students brought with them a wealth of practical experience that translated into and elevated their chosen practice of law.
Internships supposedly are meant to provide such training and experience. In reality they do not. Depending on the supervising lawyer, they may be given discrete legal issues to research and write memoranda (much like working on a term paper). They may be asked to summarize material, create timelines, or sit at the copy machine and collate material into binders. But rarely are they provided any real feedback on their work other than to narrow or expand the scope of the research. Nor are they generally offered any training, let alone opportunities to draft. They are usually kept out of meetings where strategy is discussed and are generally ignored when things get really busy and hectic, which, for the most part, is just how it is during trial proceedings. Don’t get me wrong. This is not always the case, but from what I have observed over my 23 years practicing in the international(ized) courts and tribunals it seems so. Yes, there are benefits to these internships, but they are also limited to those fortunate enough to be able afford to live and work for free in The Hague – or anywhere where they may be interning before an international(ized) criminal tribunal or court (ICTs).
About 15 years ago, I approached a professor at Leiden University with the idea of introducing clinical training as part of Leiden University’s LLM program in international criminal law. I was flatly told that this august institution was not interested in becoming a finishing school; graduates interested in the practice of law could take a training course.
Over the years, I have approached the subject a few more times to no avail. I’ve even suggested an advanced symposium where over the course of a semester, students could meet for a half a Saturday to analyze a complex indictment with manageable disclosure material (more than the usual moot court case scenario), identify the legal issues, draft submissions, argue them, and hold an entire trial at the end. Throughout the symposium, the students would be treated to lectures on drafting, trial evidence, rhetoric, with significant opportunity to apply their knowledge and skills. The aim would be to provide the students with the actual skills required of them when seeking to get a position on a defence team or with the prosecution, or even in a chamber. The response was the same.
Now that the University of Amsterdam is joining the vanguard in demonstrating that theoretical learning and practical training can co-exist, enriching as opposed to impoverishing a law school’s program, to the great benefit of students aspiring to practice before ICTs, is it not time for Leiden University to consider offering an international criminal law clinic? Proximity to the courts and to the practitioners, alone, is a major selling point. Let me put it plainly for the benefit of the entrenched naysayers and opponents to an international criminal law clinic: what’s the harm in giving it a go, even as a pilot project. If there is no demand or if it proves to be of marginal use, detracting from the real business of learning the law, then discard it. But at least give the LLM students who travel from near and far places to learn at the renowned Grotius Centre, seated in the capital of international courts (including the International Criminal Court), the experience of marrying theory and practice, with the added bonus of enhancing their employment capabilities.
But why stop there, should Leiden University not also consider designing a training program for practitioners who are unfamiliar with the practice and procedure at the ICTs? From my trainings of counsel on the ICC List of Counsel, it is more than obvious that the overwhelming majority of them may meet the technical criteria to be on the List but are woefully unskilled and unqualified to work on a case, let alone act as Lead Counsel. I’ve proposed to the Counsel Support Section that it institute a training program in addition to the annual seminar it puts on where ad hoc topics are given summary treatment and where no skills training is provided. The Institute for International Legal and Advocacy Training (IILAT) has attempted to bridge the gap with some targeted advocacy skills training, but considering that most ICC List Counsel (and others aspiring to get on the List) lack the requisite depth of knowledge and skills to undertake an assignment and ensure that the accused is afforded the best possible defence, such stop-gap training as that of the IILAT, helpful as it is, is inadequate. Hence why I continue to argue for a meaningful orientation training program for counsel who wish to be assigned to a case at the ICC – and why I think Leiden University should consider adding a short program for professionals, perhaps in collaboration and coordination the IILAT and even one of the Inns of Court, such as Inner Temple, which already is providing targeted trainings and seminars (here, here, here). The goal is worthy and the track-record well established, which is why I keep banging my head against the wall of resistance in order to elevate the practice of current and future international criminal lawyers. Plus, that practical training may one day yield the kind of experienced, quality ICT trial judge every lawyer, be they defence counsel, prosecutor or victims counsel, and every accused, deserves to appear before.
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Michael, Thank you for this. I am an advanced LLM student at Leiden wondering why we don’t have a clinical program or at the very least a feeder system for internships. The theory is essential. However, knowing how to file things, where to file pleadings and motions, what the specific requirements of pleading are and such basics as how to address the court are as important for those hoping to practice in international courts. The most valuable experience I got in law school was being involved in the mock trial programs and interning in a prosecutors office. I supervised interns when I was a public defender in Fulton County, Georgia. They were head and shoulders above their peers when it came to getting their first jobs because they had practical experience. Please don’t stop advocating for this invaluable part of a legal education.