Trial Advocacy Training Online? Successful Pilot Creates New Possibilities

If you’re reading this blog and are a litigator in Toronto, there’s a fair chance that you’ve been involved either as a participant or an instructor in Osgoode’s Intensive Trial Advocacy Workshop (ITAW). ITAW is a multi-day program that has run every summer for the last 40 years and has had thousands of participants from Toronto, from across Canada, and from other parts of the world. It’s a rigorous program, characterized by advocacy performance in a supportive environment, personalized feedback from experienced instructors from the Bench and Bar trained in ITAW’s teaching methods, and a culminating mock jury trial presided over by volunteer judges, who also provide individual feedback.

However, for those readers who couldn’t arrange to take that much time away from work or home, who live outside of Toronto, or who could not otherwise justify the expense, you likely have not participated in ITAW (even if you had wanted to). After a successful fully online pilot of the program this past July, however, it may be that access to this kind of intensive, personalized training provided by experienced litigators and judges can be increased in future.

Why was it a big deal to put ITAW online? Plenty of law school courses and CPD offerings are being delivered online because of COVID-19. ITAW does not, however, consist of lectures or group discussions, which are relatively easy to deliver live or recorded on Zoom. ITAW is all about active learning through simulation, performance and individualized feedback, and reflection. Delivering ITAW online was a daunting prospect even for Osgoode Professional Development, an organization with a lot of experience in online delivery. Even though we had a solid plan and a great team, given the number of moving parts, there was a decent risk of failure. Many who had been involved in ITAW said there was no way it could be done successfully online: there are some things that just cannot be done virtually, and ITAW was thought to be one of them.

Well, it was done online (including the final trials) and it was more successful than anyone had hoped. There were participants from across and outside of Canada who had always wanted to attend ITAW but couldn’t. Skeptical instructors who nevertheless agreed to jump into the experiment were, by the end, converts who were imagining new possibilities not only for online advocacy training but for advocacy itself.

For those who may be contemplating taking a similar leap, here are some reasons we think our pilot worked so well in the short time (about 2 months) we had to make it happen:

• Successful online teaching is not just about technology. It’s about learning design that makes the learning experience – the participants – the priority. The in-person ITAW has always been primarily a student-centered program, so no dramatic shift in pedagogical orientation was needed from that perspective.
• We knew there were skeptics. We knew there were risks. We reduced the consequences of risk by significantly reducing the size of the program and by positioning it as a ‘pilot’ that would be a learning experience. The participants who signed up for the program were aware of the change and eagerly (or at least with cautious optimism) came along for the ride.
• ITAW was already a great combination of legal education, legal practice, project management, and administrative support, requiring collaboration and trust across a team of contributors who are equally valued and respected.
• For the pilot, we selected experienced instructors, who are great teachers, who were willing to be part of the experiment. These experienced trial lawyers and judges were willing to listen and learn about how to be effective online instructors. Their openness and humility were key ingredients for success.
• We started by looking at ITAW’s core values and goals, focussing on what was important to maintain and how we could accomplish those things in a virtual environment. It was essential to enable intimacy between instructor and learner: human connection is key.
• Committed IT support was necessary, although not sufficient for success. In our case, the IT team was not only committed, it was creative. It was also an integral part of the overall program team – being part of ITAW’s design at all stages of the program.
• We did a lot of planning and preparation, including trial runs of more tricky aspects of the online course, such as organizing video-taping of live advocacy performances, working through mock individual feedback sessions, annotating demonstration videos, and working through one-on-one review sessions by instructors in individual online break-out rooms.
• Finally, we were willing to take a risk – not recklessly, but consciously and with eyes wide open.

Although some of us had been thinking about digital possibilities for ITAW for some time, we likely wouldn’t have taken this step but for the pandemic. ITAW had always worked so well (sold out for 40 years!) that it seemed like a formula that we shouldn’t mess with. In light of the pandemic, we could have decided to cancel ITAW this year. But we were driven by the potential of making ITAW more accessible in the future using digital tools and the chance to bring people along with us who might not otherwise have agreed to an online program. We also saw the barriers created by the pandemic as opportunities to experiment with different forms of professional legal education. What we were not prepared for was that putting ITAW online made something that worked well in person work equally well and perhaps even better in some respects online.

To the extent that full plenary discussions and demonstrations formed part of the program, those were easily moved to online annotated videos and asynchronous (pre-recorded) lecture sessions. In-person performance and critique sessions, although done remotely (on Zoom), maintained much of their effectiveness through small group environments with highly engaged and committed instructors and participants. Many trial skills – cross examination, direct examination, openings, closings, etc. – can be worked on in a virtual environment (as we learned).

There is no doubt that the virtual ITAW lacked the personal element of ‘being in the room’ together. That was not replaced (although Zoom worked remarkably well). Further, some of the skills around how to present in a large courtroom before a live jury were also missing. However, what was gained was the ability to perform, critique and reflect on the skills of remote advocacy, which includes a somewhat different skill set. Certainly, in the time of COVID-19, being able to argue a case online has become important for all litigators. Given the changes that are rapidly occurring across the justice system, including an increasing number of online hearings at all levels of courts and tribunals, it is likely these new skills will stay relevant for a long time to come.

Our successful experiment with a training program that many assumed couldn’t possibly be done except ‘in person’ raises possibilities in other domains in legal education, law practice and in the justice system. By the time we held the pilot, many of the ITAW instructors and participants had started to engage in online mediations and hearings. Through the ITAW experience, they were further energized by the potential for conducting ‘high touch’ legal transactions online. In some ways, the ITAW trials provided early examples of how full trials can be successfully done online. It’s hard to imagine what the next 40 years will bring for ITAW, and trial advocacy for that matter, but there’s no doubt that online delivery – at least in part – will figure prominently. The pilot this summer gave us some insight into that future and made us excited for what’s to come.

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Trevor C.W. Farrow, Professor, Osgoode Hall Law School, and Victoria Watkins, Executive Director, Osgoode Professional Development