The Art of Advocacy

Kudos to Steven Harper on an excellent post on his Belly of the Beast blog in which he calls attention to the growing mentoring gap in many large law firms today. Harper cites Peggy Noonan’s recent Wall Street Journal column in which she laments the lack of adult supervision of America’s young professionals and politicians who rise through the ranks seemingly bereft of the wisdom of elder statesmen in their professions.

In his July 26 post, Harper adds to Noonan’s always-keen observations with his own prescient spin on the legal profession. Harper writes that “the phenomenon flows directly from the dominant MBA- mentality that forces firm leaders and everyone else to focus on short-term metrics” like billable hours and profits per partner. He goes on to say the focus on such metrics leaves little room for the personalized mentoring that “turns good young lawyers into better older ones.”

As Harper suggests, this does seem to be the new norm, but despite the bleak-sounding picture, all is not lost. Young lawyers can still get the mentoring they need – they just have to be more enterprising than did previous generations of lawyers. Basically, they have to be self-starters: focusing on areas of law that most interest them, borrowing legal books and reading them, asking for help whenever they need it, and finding their own mentor rather than waiting for one to step forward.

Young lawyers should also pursue with gusto the many educational opportunities available through the American Bar Association, state bar associations, CLE International and a host of other organizations. For example, the Litigation Institute for Trial Training, which I started in conjunction with the ABA’s Section on Litigation, holds an annual intensive two-day trial training experience in Chicago every July with a group of outstanding trial lawyers and jurists from around the country. This is just one of a myriad of educational opportunities waiting to be explored.

There will always be partners in law firms who say – either in words or in body language – that they are too busy to mentor a young lawyer, but there are just as many happy to guide associates who show enthusiasm for their profession and who strive to hone their legal skills. My advice to those just starting out: be your own advocate.

Credit the news media in the trial of former Illinois Governor Rod Blagojevich for shining a spotlight on a growing trend: that of judges keeping the identities of jurors out of public hands for fear that a voracious press and minions of Internet bloggers will tamper with jurors and compromise their objectivity. See this recent story in The Wall Street Journal.

The court in the Blagojevich trial has refused to make the jurors’ names public, and the press, accustomed, to full access to criminal proceedings, is crying foul. The Chicago Tribune asked Tribune Co. Assistant General Counsel Karen Flax to articulate the argument for disclosure. You can read the full statement here, but here is an excerpt:

The news media are the public’s eyes and ears, and that role is particularly important when it comes to reporting on what happens in criminal trials -- especially when that criminal trial involves the prosecution of our former Governor, Rod Blagojevich.

The United States Supreme Court has long held that, under the First Amendment to the United States Constitution, the media -- like Chicago Tribune, have a right of access to criminal judicial proceedings...

The reason that prompt disclosure is important is because, as one court recently put it, “knowledge of juror identities allows the public to verify the impartiality of key participants in the administration of justice, and thereby ensures fairness, the appearance of fairness and public confidence in that system.”

The conflict is, in part, a by-product of the Google and Facebook age and it is becoming prevalent in courthouses around the country. Historically, a judge virtually only called for an anonymous jury when the case involved a defendant who posed a serious threat to jurors’ physical safety or who would try to bribe them. Today, it is often used to quash jury tampering by the media and other sources.

The media is quick to cite cases when its tenacity set the system straight. In the case of another high-profile Illinois governor, George Ryan, it was the news media that uncovered evidence that two jurors had withheld information during voir dire that might have disqualified them. Thanks to the media, these two jurors were ousted and replaced.

Things got complicated with the prevalence of social media. Today, anyone with an iPhone or a blog site can call him or herself a reporter. The judge in Governor Blagojevich’s trial calls them, ‘bloggers and other gadflies’ and says that if jurors names are released, these individuals will swarm them and interfere with their duties. He has good reasons to be concerned.

While traditional news media generally comply with judges’ orders not to contact jurors about a case during trial, one cannot count on this new breed of pursuers to follow the same standards. As anyone who has surfed YouTube knows, people will record and upload virtually anything.

What’s more, though judges routinely order jurors not to do outside research while they are sitting on trials, the Internet age has made research too tantalizingly simple to avoid. Not that long ago, a lone question from a reporter might have peaked a juror’s curiosity, but not enough to make him violate a judge’s order and head to the library to research. Now it’s only a Google search away.

The debate over anonymous juries in high profile trials is not as simple as a Google search; it merits careful consideration by all parties involved – the judiciary, the press, and counsel. New media forums are not going away anytime soon, and neither are high profile jury trials.

Below follows an article co-authored by Hon. Lynne A. Battaglia of the Maryland Court of Appeals and yours truly. It appears in the current Maryland Litigator.

Butcher: “The first thing we do let’s kill all the lawyers” (King Henry VI, Part II) (Act IV, Scene 2).

Why were those like Dick the Butcher, a follower of the anarchist Jack Cage, “head of an army of rebel and demagogue pandering to the ignorant,” when seeking to overthrow the government, planning to strike first at the lawyers? Lawyers throughout history and today are the centrifugal force of a free society under the rule of law.

The legal profession has always been, for the most part, self-governing, particularly in this Country and in the State of Maryland. Self-governing or self-regulation has succeeded because the profession has imposed on itself the very highest standards. As leaders, lawyers impose these highest standards upon themselves, not for the purpose of maintaining self-regulation, which, no doubt, is coveted, but because we have professional responsibilities to ourselves, our clients, the courts and the community. Surely Shakespeare, through Jack the Butcher, knew that for rebellion to succeed, striking first at lawyers might bring down the rule of law and the free society so dependent on that rule.

A free society depends on its lawyers for protection. Lawyers are the palladium of liberty.

It is equally unhealthy for the profession, as it is for society, if the public loses confidence in the high quality of members of the legal profession. Lack of confidence erodes our ethos and our role as leaders. Thus the highest standards must be maintained and self-imposed. This has been so and should continue to be so.

To be professionals requires excellence in expertise and knowledge in order to foster trustworthiness and to enhance the role of the lawyer as a fiduciary - one who seeks to serve another, rather than him or herself. The foundation of excellent lawyering and serving the community rests upon continued education and intellectual growth for self-improvement, to better represent clients, and serve those who depend upon us. More so than ever before is the law growing at a dramatic pace.

Continue reading "Why Maryland Needs Mandatory CLE" »

The new issue of Litigation Magazine includes an article on classical rhetoric and its value to trial lawyers by JoAnne A. Epps (a professor and dean of the Temple University Beasley School of Law), Ronald J. Waicukauski (of Price Waicukauski & Riley, LLC, in Indianapolis) and yours truly. Click below to read the full article, and you'll find all the classical rhetoric you need at Amazon.com.

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In what is being called a “bombshell decision”, Judge Shira A. Scheindlin of the U.S. Southern District of New York has issued a harshly worded order reminding litigants and attorneys of their duty to preserve electronic documents as soon as they reasonably expect litigation to commence. Lawyer Michael Hoenig has a helpful piece in this week's New York Law Journal about the case, Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC.

Scheindlin, an expert in electronic evidence, ushered in a new era several years ago with a set of rulings known as the Zubulake line of decisions, which set forth guidelines concerning the protection and availability of electronic evidence during discovery. In her new ruling, the judge has penalized litigants, criticizing their failure to follow proper procedures, and offering a blueprint for how lawyers should deal with issues pertaining to the protection of electronic evidence.

In particular, Scheindlin’s ruling addresses the issue of spoliation, as several documents were either lost or destroyed. The case involved 13 plaintiffs, all of whom were found to be negligent in meeting their electronic discovery obligations and were punished with monetary sanctions. Additionally the judge ruled that six of these plaintiffs had engaged in grossly negligent actions, with the result that these six plaintiffs were subjected to an "adverse inference instruction," under which the jury will be instructed to presume that the destroyed documents would have harmed the plaintiffs' case had they been made available. Scheindlin acknowledged that giving an adverse inference instruction was a serious blow, but concluded it was warranted because the failure to comply with the obligations established under Zubulake were so pervasive as to rise to the level of gross negligence.

Hoenig predicts that "Pension Committee, initially, will likely be viewed by many as a burden-imposing treatise, intrusive in the breadth and scope of the obligations spelled out by the court. Yet, because of its declarative clarity, the decision can be used by responsible lawyers to help fashion a reasonable template for proceeding to litigate in the electronic records era."

Save the date! The ABA Litigation Section has scheduled the next annual Litigation Institute for Trial Training (LITT) for July 9-10 at the Loyola University Chicago School of Law. You can register on the ABA website starting in February. I and my colleagues at the ABA created LITT to offer a small group of attorneys an intensive, two-day training experience with outstanding trial lawyers and jurists from around the country. Limited to just 40 participants, LITT 2010 will likely fill up quickly. The faculty this year will include, among many other fine people:

The Honorable Marvin E. Aspen
Kim J. Askew (K&L Gates, Dallas)
James J. Brosnahan, (Morrison & Foerster, San Francisco)
Jo-Ellan Dimitrius (Dimitrius and Associates, Pasadena, California)
The Honorable Mark A. Drummond
Steven Susman (Susman Godfrey, Houston)
Lorna G. Schofield (Debevoise & Plimpton, New York)
Robert L. Rothman (Arnall, Golden Gregory, Atlanta)
Terence MacCarthy (Federal Defender Program, Chicago)

Feel free to contact me if you have any questions about the program.

This article in the November issue of Your ABA provides an overview of The 12 Secrets of Persuasion, a book I co-authored with JoAnne Epps and Ronald Waicukauski.

The US Courts updated their Judicial Facts and Figures to include 2008 numbers.

Judicial Facts and Figures is a set of tables containing historical caseload data primarily for the fiscal years from 1990, 1995, 2000 and 2004 through 2008. The tables include data on the U.S. Courts of Appeals, the U.S. District Courts, and the U.S. Bankruptcy Courts.

In The 12 Secrets of Persuasive Argument, JoAnne A. Epps, Ronald J. Waicukauski and I identify twelve fundamental issues in formulating an argument; some of which one tend to think about less than others.

While most of us are aware of a few basic tips on successful arguments, like gathering appropriate, convincing evidence, focusing your goal, and maximizing delivery, it’s also important to pay attention to some of the more subtle elements of your particular situation. Strategy involves more than fact-gathering; there is the importance of emotion, style, and an engaging manner of speaking. If you want to set yourself apart from every other litigator in the field, you need to be keenly aware of the subtleties and complexities of the modern persuasive argument.

One of the things I think that’s ultimately most important in relaying an argument is the way you tell it. You can have all of the logical reasoning and unquestionable facts you want, but an audience won’t be persuaded without a little something more. Although a lot of us think of lawyer’s presentations as a performance, we need to really think about what that means. You need to appear as a personality, someone the audience can relate to and be interested in. You don’t have to tell jokes (although you could), but it helps to make your argument more personal. Relate the issue to yourself, or make allusions that your audience can follow, too. A jury is going to respond much more favorably to an advocate they perceive as being relatable, rather than some coldly logical litigator – and that favorable climate is going to make them a lot more receptive to any argument you’re going to make.

Ultimately, remember that you only get one first impression – so whatever tactic you choose to take in your presentation, be energetic, enthusiastic, and mindful of your objective.

I was pleased to see that Litigation Magazine reviewed Anatomy of a Trial and called it an "excellent book for trial lawyers, young and old alike." Many thanks to Mark A. Neubauer.

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The new edition of Discovery Problems and Their Solutions--published by the ABA and co-authored by Judge Paul Grimm, Charles Fax and myself--touches upon some important advances in the field of discovery--in particular, some key electronic discovery amendments to the Federal Rules of Civil Procedure, and the legislative and judicial reactions to those changes. There are, of course, many changes afoot in this area of the law; litigators face a constant learning curve as law contends with new technologies and situations. While electronic data is often easier to access than paper records that can be lost or easily destroyed, the sheer volume of data in many cases makes gleaning meaning from that data an immense challenge. The new edition of our book seeks to help attorneys work through that hurdles that often must be cleared in the discovery process as it is known today.

I often call discovery “the central battleground of the case.” Most civil lawsuits in federal court end before trial, either by pretrial settlement or on dispositive motion. In either case, the fruits of discovery can be critical to the outcome. The need for analytical and strategic guidance on problems in discovery is heightened by the fact that much of it is handled by relatively inexperienced lawyers. Anyone who aspires to be a competent civil litigator must master the rules of pretrial discovery taking into account the new amendments surrounding electronic discovery.

I am pleased to announce that the American Bar Association (ABA) has just released a new book I co-authored with JoAnne A. Epps and Ronald J. Waicukauski entitled The 12 Secrets of Persuasive Argument. It is now available at the ABA website.