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a journal of analysis and comment advancing public understanding of religion and education
(more on the Journal)

Fall 2002, Vol. 29 No. 2

Two Preachers, a Trial Lawyer, and Aristotle

Mark Osler

"This is a football."

Randall O’Brien held out a worn, leather football. Eighty-five law students stared at him, leaning forward in their seats. And, for a moment, that is all that happened. He held the football in his outstretched hand. For that bare moment, there was total, utter silence. Thus began our beautiful mess.

This article describes the first eventful offering of a class in Oral Advocacy taught by myself and two Baptist Ministers, based on the writings of Aristotle and the composition of the sermon— a class we developed in response to the practical need to teach law students how to compose a substantial and passionate courtroom argument.1 

How We Started

I’m new at this– I just began teaching two years ago, after a career as a federal prosecutor. I was hired to teach advanced criminal classes and to assist in teaching Practice Court, Baylor’s intensive third-year litigation training program. I was also invited to start a new class if I wanted.

And I wanted. Something about my own legal education had not sat well with me. In short, I hadn’t learned to do what, up to that point, I thought lawyers did– give moving and eloquent speeches in courtrooms. The week before my first trial I sat before a blank sheet of paper, wondering where a closing argument came from. I had learned the common law of torts, I had learned about the limits of legal searches under the Fourth Amendment, I had learned how to evaluate tragic choices in the field of torts, but I had never learned what to do with that blank sheet of paper on the eve of trial.

Once I became a professor, I tried to see if that issue was addressed in the curriculum at Baylor. In a limited way, it was– as part of the Practice Court class, and in an elective Trial Advocacy class which also covered many other aspects of trial. Most students, however, seemed to rely primarily or almost exclusively on the advice in the popular book by Thomas A.Mauet, Fundamentals of Trial Techniques, (which in more recent editions has been titled more simply Trial Techniques).

The profound effect of Mauet’s well-written classic became clear to me quickly in listening to student arguments in Practice Court. With striking uniformity, the students were adopting almost verbatim the samples provided in the Mauet text. For example, Mauet suggests beginning a closing argument with some variation on "This case is about...." or "This is a case about...."2 The students, almost to a person, parroted this phrase in beginning their own closing arguments.

There had to be more. More about how to sit down before that blank sheet of paper and convey what lies at the heart of advocacy. More about how to tell the story of a bank robbery, a lost limb, or the day a merger fell apart– More about injecting the stuff of life into the heart of legal practice.

I now had a goal. I would create a class which taught the practical skill of speaking effectively in court.3 To the best of my limited abilities, having already examined our own program, I examined the curricula of other law schools and could not find a class devoted to oral advocacy. In short, my problem was that there was no apparent model to borrow from.

The answer, of course, was all around me at Baylor, a Baptist law school.4 Preaching is the heart of the Baptist service, a rich vein which has provided this country with Baptist Clergy-Orators such as Martin Luther King, Jr. and Billy Graham. The goal of the preacher is, like that of the courtroom attorney, to convince an audience to make an affirmative moral choice. Preachers, like lawyers, find that the expectations of their audiences are now defined by television, and that they must strive to meet those expectations if they are to succeed.

Baylor is in Waco, a city rich in Baptist preachers of all conceivable types. It is also, naturally, a city of strong opinions regarding those same Baptist ministers, as I found in seeking the counsel of others about possible collaborators in my Oral Advocacy class.

[Fall 2002 Issue Contents]