The Art of Advocacy

Today's Washington Post's lead editorial calls for liberating the Legal Services Corporation from several federal restrictions that for years have hamstrung state legal aid organizations, such as Maryland's Legal Aid Bureau. As the editorial mentions, the restrictions include prohibitions against spending any public money on class action suits, abortion-related litigation, and the representation of undocumented workers. Loosening such limits is a good idea, but equally if not more important is the effort to boost the LSC's budget. The LSC, which was created by Congress to fund legal aid bureaus around the country, had a budget of $390 million for 2009, and the Post reports that the House approved on Thursday a measure that would increase that number to $440 million. That's a positive if modest improvement. Hopefully the Senate can find even more funds for the LSC, which plays a vital role in protecting the poor, especially in a recessionary economy.

I can't help recalling a speech given three years ago to the Equal Justice Council of Maryland by Jonathan Lindley, then Executive Director of Service Design for the Legal Services Commission, England’s counterpart to our LSC. He caught my attention by comparing the United States' commitment to legal aid to that of his country. While 50 million Americans are unable to afford legal counsel, he estimated then, four million are similarly situated in England and Wales. Yet the British government outspends our own by a multiple of three in funding for legal aid.

In 2005 the Legal Services Commission received the current equivalent of $1.6 billion in government grants for performing civil legal services on behalf of needy citizens in England and Wales, according to its annual report. For that same year, the Congress coughed up $335 million for our Legal Services Corporation, upon which legal aid bureaus around the U.S. heavily rely. Based on these numbers, I estimated at the time that the United Kingdom, with its population of about 60 million, spends more than $26 per person on legal aid. The U.S. spends just over $1 per person.

Saliently, the front page of today's Post includes a headline that reads: "Recovery's Missing Ingredient: New Jobs." "Despite signs that the recession gripping the nation's economy may be easing, the unemployment rate is projected to continue rising for another year before topping out in double digits, a prospect that threatens to slow growth, increase poverty," the story reads. That's as good a reason as any to do all we possibly can to enhance the ability of cash-strapped legal aid organizations to fulfill their critical mission.

(If you're interested in supporting the Maryland Legal Aid Bureau, of which I'm a board member, click here.)

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Indicting a public official is always a cause for attention. The prosecutor believes he or she is duty bound to proceed based on the facts uncovered. The defense exclaims that the case is tissue thin. The fourth estate rallies to the cry of cause célèbre. The public reads, listens and waits for the wheels of the judiciary to grind forward as they inexorable do.

In Maryland the State Prosecutor indicted the Mayor of Baltimore in a twelve-count indictment. The charges included perjury for failing to report gifts from a developer on ethics forms, theft for stealing gift cards worth more than five hundred dollars, and misconduct in office. Last week the judge assigned to the case dismissed five of the counts, leaving seven remaining, those relating to the theft. The basis of the dismissal boils down to a doctrine known as legislative immunity, or the “speech and debate” principle, which holds that an elected official’s votes, or bills she may have introduced in a legislative body, cannot be used as evidence against her. (This principle exists to prevent politically motivated prosecutions against elected officials.) In this matter, the prosecutor had presented the grand jury with such evidence in building the perjury case against Mayor Dixon, thus compelling the judge to question the integrity of the indictment and dismiss five of the counts.

The question of whether the State Prosecutor should appeal is an important one. An appeal would cause delay of the trial. Delay often works to the advantage of the accused. On the other hand, the prosecutor may be thinking of his role as public servant and seek to reverse the court's decision on theory of legislative immunity to clear the way for other cases in the future. What should the prosecutor do? Analyze the law and consider the likelihood of reversal. If he believes he has a shot, he should go for it. His responsibility may be to advocate for reversal so that he can proceed with all of the charges and, when justified, prosecute others who would hide behind the immunity. The defense, of course, must continue to battle. In doing so, they will be not only fighting of their client, but also for the need for such immunity to protect the independence of the legislative branch of government.

As an alternative to an appeal, the prosecutor could take a narrower view of the matter and attempt to re-indict Mayor Dixon for perjury and misconduct in office, this time excluding the evidence the judge deemed improper. Indeed, the judge’s opinion suggested the prosecution might take this step, and the Sun advocated for it in a recent editorial.

The trial is scheduled for September unless the special prosecutor appeals. I look forward to following the proceedings. I am familiar with the lawyers and the judge in the case and expect it to be well tried.

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In light of the economic downturn, I have been posting ongoing suggestions on building your legal practice. If it's the middle of the day, and you're reading this, you might be one of the many lawyers out there with too little to do. In that situation, the last thing you want is to get demoralized and question your abilities. You need to stay engaged however you can. The good news is, now you may have the time for all that non-billable work you've been putting off for months, if not years.

There are thousands of ways to attract business, but the best of way is to be a top-notch attorney in every matter that crosses your desk, no matter how trivial it may be. You never know what might lead to something else. I would say that being a good lawyer entails many things that not all lawyers do--staying up-to-date with developments in your practice and communicating about them with your client base. That communication can take the form of articles you publish, newsletters, white papers, bar association events, seminars, and even casual conversations with acquaintances. If you are clearly passionate about what you do, you will be involved in all sorts of ways, and that involvement will, over time, lead to clients. But be patient. It won't happen overnight. Don't expect it to. Enjoy the non-billable work; think of it as part of your vocation, not a chore, and the enthusiasm will bring results.

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I previously posted about attorneys doing jury research on social networking sites. The other side of the coin is that jurors can conduct internet research of their own, a problematic phenomenon discussed in this story from the Twin Cities Business Journal. Jurors have always been told to avoid reading about a case on their own, but now that it's so easy to satisfy one's curiosity with an iPhone, Blackberry or computer, a judge's warnings may not always be enough to ward off the temptation to know more. Anyone who has ever used Google, should understand the inherent danger of a potential jury member making decisions based on online information. Misinformation, public opinion, and publicity spin fill online forums like Wikipedia, blogs, and newspaper sites.

A common question at the voir dire: “Is there any member of the jury panel who has knowledge of any facts relating to this case?” Attorneys may also want to ask whether potential jurors believe they could obey the judge and stay away from Internet research during trial. The aforementioned article cites Dorsey & Whitney partner Peter Carter's experience in a Kansas City trial:

“ 'During voir dire, we asked whether jurors would abide by instructions to not do research on the Internet, and probably six to 10 potential jurors said they could never abide by that,' Carter said. [He] and other attorneys involved in the case then asked the 80 potential jurors whether they had already researched the case on the Internet. Carter said six to seven more people admitted they had.' "

Such experiences illustrate how critical voir dire can be. Many lawyers have campaigned for a broader voir dire that would afford them more opportunity to question jurors individually. There has been little enthusiasm from the judiciary for such proposals. Arguments against an expanded voir dire range from the efficiency of judicial administration to the need to protect jurors from penetrating questions that violate their privacy, to the concern that lawyers would unfairly use the process to begin persuading jurors before evidence has been presented. All of these points have merit, but now that jurors can so easily access information independently, perhaps it is time to revisit the standard voir dire questions.

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When a theme is powerfully presented, a lawyer can cast a spell over a jury. Whenever a spell is created by opposing counsel, it must be broken as soon as possible.

To do so in an opening, you may want to invoke a dramatic statement that shifts attention to your case, the theme of which is compellingly distinct from that of the opposing counsel’s. For example, in a case alleging sexual harassment the defense began as follows: “Ladies and gentlemen, this case will demonstrate that just as it is important to eliminate sexual harassment in the workplace, it is equally important to eliminate false claims of harassment, which is exactly what we have here today.”

Other techniques of introduction include clearly stating your purpose or asking a question central to the case. For example: “The government is going to ask you to take away the freedom of Sergeant Smith for defending our freedom. … Now, what crime did he commit? His military working dog barked at people.” (The Baltimore Sun, March 14, 2006, quoting Capt. Jason Duncan in the opening for the defense of Sgt. Michael J. Smith in the Abu Ghraib prison case.) You can also begin by paying a compliment to the jury or appealing to the jury’s sense of self-importance: “In deciding this case you will be establishing the industry standard for the next 20 years.” Avoid introducing your case by stating that the opening cannot be considered as evidence. This only suggests that the jury should not listen to you and that what you are about to say is unimportant.

Because your listeners’ impressions of you bear on your persuasiveness, within the first five minutes of the opening you should ingratiate yourself with the jury. This isn’t hard to do. A courteous smile and a word of gratitude can help you establish much-needed rapport. There are different opinions about whether you should thank the jury for its attention during the opening, but I believe doing so can help humanize you and your client. A little courtesy can go a long way.

Ideally, within the first few minutes of your opening statement, each juror will have a favorable impression of you and a clear understanding of your overarching theme. Such themes are vital. In addition to drawing attention to your case, they can give the jurors a figurative lens through which to view all the information that is to follow and help them organize it as you wish them to.

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Posted In: Persuasion

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Yesterday the New York Times ran a fascinating column from David Brooks on the concept of "moral emotions." Citing recent studies by neuroscientists and others, the column suggests that the moral reasoning we learn in philosophy classes is merely an "aesthetic" justification for instinctive convictions we have about right and wrong. In the same way a bad smell repels, moral error repels. We know beauty when we see it; so, too, with moral goodness. Moral decisions, Brooks suggests, are driven by emotion.

Trial lawyers should familiarize themselves with the research Brooks cites. It matters to our profession, though I question whether it will change how we argue cases. Skilled advocates know, and have known for centuries, that a key component or persuasion is pathos. In speaking to juries, we always appeal to emotions. As Abraham Lincoln said during his trial lawyer days, to persuade a person, one first has to capture the heart. If a case concerns a traffic accident, we describe the wreckage in vivid detail or speak movingly of the plaintiff's struggle to walk afterwards. This is common, effective if not overwrought, and often wins verdicts.

But some lawyers concentrate primarily on logos. If the research Brooks cites stands the test of time, logic in legal argumentation may come to be seen as merely the "window-dressing" for what we know by instinct to be right or wrong.

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In an earlier post, I discussed finding a mentor as one solid strategy for associates looking to land new clients. The key phrase on this subject, in my view, is “one day at a time.” Developing business tends to be a gradual process for young lawyers. Don’t discount the kindness or wrath of Lady Luck, but here is another tip for those looking to build a practice: Establish yourself as an expert.

The task is accomplished in small steps over a long period of time. If you are a litigation associate focusing on discovery, learn everything there is to know, and then some, about discovery problems. Once you master the nuances of interrogatories, requests for production of documents and privilege logs, seek experience in taking and defending depositions. Start second-chairing in trials and work your way forward to assuming more responsibility.

Don’t wait for colleagues or partners to lead you to the water. Improve yourself at every opportunity. Read all you can about the areas of law you wish to master. Talk to more experienced lawyers, attend educational programs, and study the work product of those you respect.

In other words, pickle yourself in the subject. Day by day, your expertise will grow--and so will your reputation.

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The ongoing Caylee Anthony circus has underscored a valuable question for litigators: Can journalists attend depositions? It appears that the lawyer for the woman accused by the toddler’s mother (who is currently residing in jail) wants the grandparents deposed before reporters. The Anthony’s lawyer calls the plan “ludicrous” and plans to ask the judge to delay the depositions, if not bar the reporters from the deposition.

“Ludicrous” may be too strong an adjective, but certainly the plan is problematic. Although the public traditionally has a right to attend judicial proceedings, pretrial depositions and interrogatories are not public components of a civil trial, and as a result, pretrial discovery proceedings are generally conducted in private as a matter of modern practice. This does not mean that the public does not have the right to inspect the fruits of deposition discovery - the transcript or videotape - at an appropriate time and in an appropriate manner, but simply that the public has no right to observe the deposition process “in real time” as it is unfolding.

Not only is there no general public right to observe a civil deposition while it is occurring, the presiding court has the authority to restrict the right of a party to observe or participate in a deposition in its own case. In exercising their discretion to determine whether reporters may attend a deposition, the courts would generally engage in a fact-specific inquiry to determine if their attendance is appropriate and justified.

Continue reading " Reporters Attending Depositions" »

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The economic news for many new lawyers has been bleak over the past few months. Law firms nationwide are laying off associates seemingly every day. How can associates protect themselves? One of the best ways is to develop a stable of clients. Doing so is, of course, a challenge for young lawyers even with economic winds at their backs, much less blowing a gale against them. For trial lawyers, though, downturns aren't all bad news. As the economy de-leverages, many businesses are having to steel themselves for legal battles. With good habits and clear goals, even junior associates can make headway and establish a practice. I will be posting ongoing tips over the coming months on strategies I have found to be successful for rainmaking.

Here's one familiar pointer: find a mentor. Seek out a relationship with a senior lawyer or two. Discussing legal issues and your professional life with a role model can be invaluable, especially as your career changes over time. A good mentor will take an interest in helping you succeed and spend time explaining aspects of his or her practice, specific skills and techniques, and case strategies. You might find mentors within your firm or outside it. Bar associations and Inns of Court are good places to meet people who can counsel you on developing your career and perhaps, down the line, refer clients your way.

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If you can believe the Wall Street Journal, lawyers are dressing up these days. Christina Brinkley reports here that many attorneys are scorning business casual in favor of more formal attire. The argument for this? “[H]igh powered attorneys should look like high powered attorneys” and anything else is “sending the wrong signal.” The law firm cited is unusual in its adherence to a strict dress code, but I agree that lawyers should acknowledge the expectations of their various audiences, especially those inside the courtroom, and dress accordingly.

At trial, this becomes extremely important. During the first moments of an opening statement, your audience of judge, jury members and arbitrators will be forming key impressions of you and your case. I generally recommend conservative attire that is compatible with your personal style and the audience’s expectations. A couple of opinions on attire and appearance:

* Avoid bow ties. Keep to traditional suiting if at all possible.
* Choose jewelry carefully. Sparkles are distracting — including those in cuff links. And, expensive jewelry can create a gulf that interferes with having the jury “identify” with the lawyer.
* Arrange your materials in an organized and controlled manner. If you are constantly groping for exhibits, you might lose credibility.
* Use the space in the courtroom. Consult the rules and judge’s staff before trial on where and how freely you can move.

There is room to disagree about what to wear and how to look at trial, but there is no disagreement on the importance of appearing natural and comfortable. Whether or not you leave the bow tie at home, your appearance engenders confidence through projecting a powerful and controlled image.

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Here's another post excerpted from my new book, Anatomy of a Trial: A Primer for Young Lawyers:

Never discount speaking style and delivery as superficial elements of your case. They are critical instruments of persuasion. Before you even enter the courtroom, you should consider the tone you want to set during specific examinations, what expressions and gestures to use, your demeanor, body language, and pacing.

Where you stand and how you move while conducting a direct examination is important. Sometimes a judge will require counsel to remain at the podium. This poses a challenge--not being able to approach the jury or move about the courtroom limits the nonverbal modes of communication that are usually available to lawyers. It is often helpful, for instance, to stand by the juror box while asking a witness to tell “us” about an event as if you were part of the jury.

It can be difficult to control your body language so that it adheres to the overall impression you want to make. Facial expressions, in particular, can betray you. You may find yourself frowning or grimacing upon hearing an answer you did not want. Obviously, such slips undercut your credibility. How can they be avoided? If you can truly internalize conviction in your argument, your confidence in the face of contrary evidence is more likely to be evident to jurors during examinations.

Your convictions about the case will also become evident as you vigorously engage a witness. A lack of conviction, on the other hand, and a lack of imagination, can lead to lazy questioning. A dull sequence might go like this: “Well, tell us what happened.” “And then?” “What happened after that?” Generally, the examination will unfurl much more vividly if you take charge of it, tailoring questions to draw out compelling details you know are there, waiting to shine before the jury.

One final note about style during direct. Remember that you are not speaking to lawyers. You are trying to communicate with the witness and with the jurors. Stilted, lawyerly language is not desirable. For instance a question like “Did there come a time when you returned home that evening?” comes off as formal and aloof. As do, “What, if anything, did you do next?” and “State your name for the record.”

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Technology can work wonders in the courtroom. The combination of high-tech imagery and low-tech witness examination often creates vivid, lasting memories in the minds of jurors. As time goes on, the technology becomes more sophisticated, but its purpose remains the same: explaining your case and persuading the audience in a memorable fashion that trumps your opponent's story.

By way of example, see this piece on Law.com by David Horrigan: “Technology Puts a Dream House on Trial.” It relates how, in a dispute between DreamWorks CEO Jeffrey Katzenberg and Goodyear over heating hoses installed in his vacation home, both teams used video presentations. The plaintiff’s included a computer-aided tour of Katzenberg’s home and animated CAD drawings while the defense used a straightforward presentation of blueprints and related drawings through TrialDirector 5.0 software.

As technology has evolved, there are now more ways than ever of showing exhibits in a courtroom. In my view, though, it is not the sophistication that counts, but how well the imagery persuades. Lengthy presentations, no matter how elaborate and well done, may bore the audience. Perhaps the most effective way to work with video at trial is to weave imagery into witness examinations, so that the oral testimony is reinforced by the visual, the abstract becomes concrete, and everyone in the room can see what the witness is reviewing as he responds to questions. Particularly during long direct or cross examinations, use of audiovisual aids helps keep the jury engaged in your story.

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Posted In: Trial Strategy

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