The Art of Advocacy

Persuasion technique is often taught in such a way as to focus your attention on yourself—your rhetoric, your skill, your arguments, your persona. Don’t be mistaken: rhetoric is at least a two-way street. Any argument you offer has several components—you (the messenger), the content of what you have to say, the medium, and the audience. The most important of these, and the least predictable, is the last.

In the context of litigation, members of the audience (jurors and judges) determine your client’s fate. To succeed, you have to understand them as well as possible and then tailor your argument accordingly. That’s what’s called a “receiver-centered” approach, and in my view it’s fundamental to success.

In an earlier book (The Winning Argument), my co-authors and I quoted an old story about an Irish barrister representing a shepherd before the high court of Great Britain. During the argument, a member of the court commented: “I’m sure your client is familiar with the doctrine of res ipsa loquitur.” The lawyer responded, “Yes, my Lord, in Killarney, where my client tends his flock of sheep, they speak of little else.”

Lawyers err in this fashion every day. They assume their audiences understand too much or too little. They speak over or under the heads of jurors. They bore judges with tedious, irrelevant details, or irritate them with inappropriately bombastic rhetoric.

Why does this happen? Attorneys prepare their arguments in the privacy of their offices surrounded by colleagues who speak their language and often share common backgrounds. Inside this bubble, they spend hours upon hours perfecting the intricacies of written and oral arguments, gradually slipping into the illusion that this rhetoric is theirs. This is a mistake of ownership. A legal argument does not belong to the attorney who makes it. It belongs to the court. Once uttered, it exists as a public expression that will be received, decoded and judged by those who hear it.

In other words, the “receivers” are not passive receptacles for rhetoric. In decoding your argument, the audience is as much involved in creating its meaning as you are. When you use the word “home,” for instance, you may associate it with a tranquil country cottage while your listener may envision a high-rise hovel fraught with tension and resentments.

According to Aristotle, “the whole affair of rhetoric is the impression to be made upon an audience.” If you believe this is true, and I do, then you will nimbly shape your rhetoric to suit the receiver, be it a judge (in a motion), a jury (at trial), or the opposing party (in negotiating a settlement).

In my next post, I’ll focus on the first of these, the judge.