April 7, 2010
Detuning the DebatersYesterday, I participated in a debate with several students at another law school, co-sponsored by the Federalist Society and the NAACP. The students were stunningly talented, and I learned something from each one. It was a wonderfully wise, fair, civil, and compelling discussion. Still, I noticed something there that I have also seen among some of my top students at Baylor: The training some students have received in college debate competitions inculcated a style which favors bursts of facts over more deliberative forms of rhetoric and creation of a narrative.
Debate is seen as a good precursor to law school, but many of us who teach advocacy often find ourselves having to spend significant time un-training our most talented students in order to cure problems they were affirmatively taught through high school and college debate. I can see how there might be merit to the style of debate competition that has evolved (the rapid-fire recitation of facts is easy to score), but I hope this isn’t being promoted to college students as a legal skill.
Certainly, this style would be troubling in trial before a jury, as it cuts against the development of a meaningful and whole story, which is at the core of the trial project. It also is useless (or counter-productive, even) in client meetings and any sort of witness preparation. Even in appellate argument, modern debate style bears little resemblance to what the best advocates do—instead of machine-gunning facts, top appellate lawyers listen closely to the judges and respond in a focused way to their concerns. The best oral advocates actually appear laconic compared to frenetic high-school debaters, and their slower pace is both intentional and effective.
Should debate change, or should we simply stop seeing success at college debate as bearing a relationship to legal skills?
-- Mark Osler