Trial School and Mixed Method Advocacy

Rich Newsome | Newsome Melton

In 1993, a martial arts fighter from Brazil named Royce Gracie shocked the world by beating all other competitors in the first annual mixed martial arts championship. Gracie, who weighed only 165 pounds, beat much larger and stronger fighters using a version of jiu-jitsu grappling taught at his family’s gym in Brazil. This competition “the Ultimate Fighting Championship” was one of the first contests between combatants using the various martial arts fighting methods. After winning both the first and second championships, the Gracie family claimed that their method was superior to all other schools of martial arts methods. Soon other fighters began to embrace Gracie’s grappling method and combine it with other fighting styles such as karate, muay-thai, and kickboxing. Now there is broad consensus that a fighter must be proficient in all methods to become a mixed martial arts champion.

Today there are numerous approaches to trying a civil jury trial on behalf of a plaintiff: the Trial Lawyers College approach taught by Gerry Spence; case framing methods taught by Rodney Jew; presentation and case mapping used by Mark Lanier; the “Bruises” approach taught by Keith Mitnik; “Cause is King” voir dire created by Jay Burke; theater communication arts as taught by Josh Karton — and so many, many others.

Some proponents of the various trial advocacy methods claim their method is the best, to the exclusion of the other methods. To me, this is reminiscent of the claims made by the Gracie family before and after Royce Gracie won the first UFC championship.

Two years ago I had an epiphany. I sat in the barn on Gerry Spence’s Wyoming ranch on a cold October day and listened to Spence talk about voir dire. Spence taught an approach to jury selection based on the philosophy of creating a tribe by being real and brutally honest with the jury. “Your job,” Spence said, “is to have no agenda. You must be brutally honest and open with the jury. You must trust them to see the truth of your case. If you do this well, you will never have to exercise a challenge for cause,” he said. Well, maybe Gerry didn’t say those exact words, but that’s the gist.

Spence’s approach to voir dire is the exact opposite of the method taught by Jay Burke, a legendary jury consultant from Florida whose methods many of us have used for decades. Burke coined the phrase “Cause is King” and taught how to identify jurors who have bias and how to get them removed for cause. Burke’s method has a clear agenda: develop strikes for cause. Burke’s method is 180 degrees opposite from the method taught by Spence. Experience proves both methods are effective. Spence has an indisputable track record of success in winning difficult cases. Hundreds of Trial Lawyers College graduates, including some great trial lawyers like Mel Orchard and John Gomez, have won huge verdicts which prove the Spence method works. The Burke method has also proven effective. Lawyers like Chris Searcy, Willie Gary, and Keith Mitnik, who have both worked with Jay Burke and are strong proponents of his approach to voir dire, have equally impressive strings of large verdicts in difficult cases. After hearing Spence talk and participating in workshops at the College to understand his method, I had a discussion with Joey Lowe, one of the faculty members at the College. After I explained the basics of Burke’s Cause is King method, Joey shook his head. “That’s crazy and the wrong approach”, he said. “If you try to develop challenges for cause, the jury will know you have an agenda, you will not be able to build a tribe and you will never have a chance.”

After coming back to Florida from the Spence Ranch I took my friend Keith Mitnick out to lunch. Keith is one of the best trial lawyers in the country and the author of the book Don’t Eat the Bruises. Keith is a strong advocate of the Burke voir dire method. During lunch I told Keith about the tribe-building method I learned from Spence and how different it was from the Cause is King method we used in Florida. “I know that Spence is one of the best lawyers on the planet, and I recognize his method works for him. But for me, that method won’t work and I think it’s the wrong approach” he said. “If you don’t identify the jurors who are biased against your case, and the judge doesn’t strike them for cause, you will never have a chance.” After lunch I started to think about Royce Gracie and mixed martial arts. This raised some questions: would it be possible to combine both the Burke and Spence voir dire methods together; like mixing the methods of martial arts that happened in the fighting world after the early Gracie championships? Could a mixed-method approach be used for the rest of a jury trial beyond voir dire that might be superior to using only one method?

I asked Lowe and Mitnik if they would be willing to test both voir dire approaches during a workshop in Orlando. They agreed. We were joined by several other great Trial Lawyers College faculty members from around the country and several trial lawyers from Florida who were advocates of the Jay Burke method. This group spent several days conducting focus groups and testing both the Spence and Burke methods against each other. Although there was no consensus at the end of the workshop, this initial work was promising and proved to everyone who attended that both methods had strengths and weaknesses. During the last few years since holding that first workshop, a group of us continued to collaborate and develop a “hybrid” or mixed-method approach to voir dire and trial. We also invited other lawyers and started to share what we learned. As a shorthand, we started calling these meetings Trial School and the hybrid approach to voir dire and trial “Mixed Method Advocacy”. We now have Trial School workshops on a regular basis and continue to use the workshops as a laboratory to collaborate on the Mixed Method Advocacy approach.

As of January 2019, there are local Trial School chapters in 6 cities around the country. Local chapters meet on a regular basis. Trial School is open to all lawyers who sign our non-disclosure agreement, who only represent people, and who do NOT represent any corporations. Trial School is and will always be free for all of our lawyer members. Trial School’s collaboration works. We have learned from each other how to better try cases. Mixed-Method Advocacy, or “MMA”, is a real thing. As Joey Lowe recently told me, shortly after he used the hybrid voir dire approach to win a multi-million-dollar verdict in a difficult trial in California, “I’m a believer. We have built a better weapon.”