The Art of Advocacy: Discoveries Made From Far Away

By Professor Susan McGraugh

As a clinical professor at the Saint Louis University School of Law Legal Clinics, it is my job to teach law students the art of advocacy. The students and I work together as defense counsel on a variety of felony, misdemeanor and ordinance violation cases. By assisting in trial preparation and acting as co-counsel at trial, the students can also explore the justice system in context. They can observe and evaluate the efficacy and reliability of the mechanisms of the criminal justice system while it is occurring around them. Using a variety of techniques that incorporate skill training, reflection and written assignments, we seek to find a style of persuasion that is effective for them.
This past summer I put those techniques to the test when I spent two weeks in China training Legal Aid attorneys in criminal defense advocacy. Preparing for the trip forced me to consider which elements of criminal defense advocacy were so basic that they would translate not only to another language, but to another culture. In the end, I decided that I would model the training for the Chinese lawyers after the lessons that I teach my own students at the Clinics. Although our laws are different, I believe advocacy is a skill that transcends legal artifices.

I became interested in teaching clinical skills in China when I read an interview with the founder of International Bridges to Justice (IBJ), Karen Tse. IBJ was founded in 2000 in an effort to ensure that criminal defendants in Asian nations new to the concepts of due process would have access to competent legal counsel. By providing administrative, legal and technical support to its partner agencies, IBJ seeks to enhance the quality of representation received by criminal defendants. The Chinese government recently warmed to the concept of due process for accused persons with the passage of the revised 1996 Criminal Code and the 1998 signing of the International Covenant on Civil and Political Rights. With the new rights afforded criminal defendants, the desire for trained criminal defense lawyers in China has greatly increased. Although China has opened over 2500 legal clinics for its citizens, the prolonged absence of due process rights for the accused from the Chinese justice system resulted in an absence of persons with the experience necessary to educate lawyers in criminal defense skills.

The training took place in the city of Lanzhou in the Gansu Province of Northwest China. The Legal Aid attorneys at the training came from all over the western region of China. The attorneys were not the fresh-faced young law school graduates that one may expect. Most of the attorneys had been practicing law for several years. They were career legal aid attorneys who, like their American counterparts, make only a fraction of the salary that private lawyers do.

A primary task at the training was instruction on cross-examination techniques. Chinese criminal defense attorneys get very few opportunities to test the government’s evidence through cross-examination. Although the cross-examination of witnesses is permitted, in reality often the only witness subject to cross-examination during the trial is the co-defendant. Victims and witnesses are often not required to testify at trial or be subjected to cross-examination, but instead have their statements read into the record by the government. Nor do Chinese criminal defendants enjoy the right to a jury trial — the guilt or innocence determination is made by a three-person panel of judges. There is no presumption of innocence. A criminal defendant cannot refuse to be interrogated and confessions are commonplace. It is a system that severely limits the use of advocacy in the court.

Despite these shortcomings, it was obvious during my experience that many Chinese lawyers and administrators are determined to improve the treatment of criminal defendants. The training began with lectures on procedural criminal law by a Chinese criminal defense attorney from Hong Kong and a law professor from Shanghai. These lectures focused on the client’s due process rights as outlined in the criminal code. However, in practice these rights are difficult, if not impossible, to exercise. In the absence of a powerful central law-interpreting authority, local jurisdictions often are left to determine which of the portions of the criminal code they will enforce. Criminal trials also lack the transparency necessary for accountability. The lectors urged the Legal Aid lawyers to continue to find ways to take advantage of the opportunities provided by the criminal code.

I had assumed before the training began that the Legal Aid lawyers would be resistant to trying new skills imported by an American law professor who had never faced the level of resistance in the courtroom that they received on a regular basis. During my portion of the training, I sought to engage the students in exercises designed to allow them to experiment with new trial techniques. We also spent a good deal of time on fact development and client counseling. To my delighted surprise, the lawyers were more than willing to experiment with new ways of preparing and defending cases. They literally leapt out of their seats for the opportunity to demonstrate their cross-examination skills. I was deeply impressed by their willingness to experiment with new skills that they may never be allowed to use in the courtroom. It takes a strong measure of hopefulness and conviction to seek better ways to represent clients when effective representation may lead to your own incarceration.

I left China with a deep appreciation for our jury system, for an election system that keeps the government in check and for a free media that informs the public about the condition of the justice system. I worry that we in the United States take for granted the notion that our government will always provide defendants with an opportunity to fully and fairly litigate their cases. Without counsel, effective counsel, those rights are meaningless. What is the essence of advocacy? It is having a passion for your cause and being able to convey that passion to the factfinder. It is the ability to believe not only in your client but in the rightness of a system that promotes adversarial proceedings as a way of getting to the truth. It is the ability to be brave in the face of adversity, to be willing to associate yourself with the unpopular and marginalized. This is the essence of advocacy.

Professor McGraugh is an expert in criminal law, and has written and argued criminal appeals in the Eastern, Western and Southern Districts of Missouri. She joined the School full time in 2003, and has directed the Criminal Clinic’s intern and externships, and has been networking with mental health care providers to offer representation to their clients. “How great is it to have a job that allows me to take any pro bono case I want?” says McGraugh. “I can find people or groups of people that need my help and take their cases. I can network with agencies on issues I feel strongly about. And, I can teach young attorneys how to care about these people, which satisfies the part of me that seeks social justice.”