The Art of Advocacy

While trial and appellate lawyers today strive for that one technique that wins the case, it is often helpful to review historical approaches to client advocacy in mining for strategies. As far back as ancient times, advocates used many techniques of rhetoric that are still of value in today's courtrooms, as I have found in my practice as a Baltimore trial attorney.

In "Classical Rhetoric and the Modern Trial Lawyer," an article I wrote for the Winter 2010 issue of the American Bar Association's Litigation magazine, I covered this subject in great detail. I was joined by two colleagues, Ronald Waicukauski and and JoAnne Epps.

The article is embedded below. Click on the "+" button at the bottom of the embedded screen to enlarge the type. If the article interests you, consider reading The 12 Secrets of Persuasive Argument, published by the ABA in 2009.

Classical Rhetoric

It’s the United States versus Canada – but it doesn’t involve hockey or other winter sports. Rather, it’s a friendly competition in the courtroom featuring trial lawyers from the United States representing the plaintiff in a wrongful termination case against a team of Canadian lawyers representing the defense.

The program is called “Trial Practices in Canada and the United States: A Comparison.” It will be held on August 4, as part of the American Bar Association’s annual meeting next month in Toronto, Canada. This particular event is being hosted by the Litigation Institute of Trial Training ( “LITT”), the organization I founded several years ago to help young trial lawyers hone their skills.

In the program, two judges will preside -- one from the United States and one from Canada. A jury will also be rendering a decision. In addition to gaining valuable courtroom exposure, trial lawyers will have the opportunity to learn the courtroom protocols of our neighbor to the North.

Following the “trial,” we will feature a panel discussion about the differences in the trial practices in the two countries. Though in many ways our systems are similar, the differences are fascinating. In Canada, for example, all matters in the federal courts are heard and determined without a jury. Though in some provinces civil jury trials are available, the court can “strike the jury” if it determines that the factual issues are unduly complex. Pretrial discovery is also more limited in Canada. In Ontario, for example, a party is limited to a total of seven hours of deposition regardless of the number of depositions the party undertakes. Also, in Canada, counsel under some circumstances may answer for the witness and non-parties may not be deposed, with limited exceptions.

If you would like to attend the LITT program in Toronto next month, or if you’d like any additional information about the LITT program in general, please contact the ABA.

I’ve written many times about the importance of hiring good jury consultants and the value of conducting mock trials. The Casey Anthony trial provides a perfect example of why it’s worth going through that time and expense.

While the media and the public have responded with shock and outrage at the verdict, jury consultants – including those who worked on the case – say they weren’t surprised. As reported in the Palm Beach Post, two mock juries, one conducted for television and one for the defense, both resulted in not-guilty verdicts.

Hiring a jury consultant certainly doesn't guarantee a win for your side, but it definitely helps you build a stronger case when you present before a jury. Jury consultants not only help in voir dire to “unseat” potential jurors who are most likely to be unsympathetic to your client. They are also the most qualified people to help your team conduct a mock trial – and there is no better way than a mock trial to explore how your overall case and all its parts will play with a jury. If done correctly, a mock trial will reveal your strategy’s general and particular flaws as well as its strengths. It will also give a feel for how individuals will react to – and think about – the evidence and arguments you intend to present.

To get the most out of the process, you have to provide the jury consultant with a summary of the case from both sides, jury instructions and a verdict sheet. It is also helpful to offer a draft of the pretrial order, which you should be developing by the time you are ready to present a mock trial.

The jury consultant will engage a research studio where you will eventually present the mock trial of your case to a group of strangers. These strangers – selected by the studio – should match the profile of the actual jurors who will hear your real case. How can you be sure that the “mock jurors” will match the profile of the actual jurors? You can’t – but you can make an effort to come close. Within a month or two of the trial, contact the jury commissioner for the court and, if possible, obtain a copy of the current jury list. The list is often available, though not always. Your jury consultant will pass the list on to the studio or research center, which will recruit people from its database who match the profile of the actual jurors. The participants are usually compensated about $100 per day, though that can vary by jurisdiction.

Before you come face to face with the group, you may need to consider which aspects of your case you should present. Be selective. It isn’t often that you can – or would even desire – to present your entire case at mock trial, particularly if the upcoming trial is complex and lengthy. Focus on the key aspects of your case: perhaps the opening statement and closing argument, crucial witnesses and any area about which you feel uncertain.

A good jury consultant can work with you to identify your goals of the mock trial. You may want to discern the type of jury that would be supportive of your case or identify the type of juror who could be harmful. You may want to learn how you are received as counsel. You may also need to know what further information the jury believes should be presented on behalf of your client.

Once you’ve sorted this out, the consultant can help you develop questions for a focus-group meeting following the mock trial and mock-jury deliberations. From this you can glean which witnesses were perceived as more credible than others – and why. You can also learn whether particular strategies you devised were stronger or weaker than you imagined.

To make the mock trial worthwhile, you have to give the opponent a fair shake by presenting the opposing side, including opposing witnesses and opposing counsel. Given that you obviously won’t have your real opponents to assist, you can ask colleagues to portray the other side’s counsel and witnesses. You may also have video depositions at your disposal.

Jury consultants and mock trials don’t come cheap. They can range from less than $10,000 to well more than $100,000. If money is a big issue, consider working with a jury consultant to create a mock trial that only deals with opening statements and perhaps one or two witnesses. Worse comes to worst, assemble your office staff in the conference room for a few hours and use them as mock jurors.

The bottom line is that preparation for a trial is key to its success. And there is no better way to prepare than with a good jury consultant and a well-run mock trial.

There will be cases in which victory will not be yours. In some of those cases, your client may want to appeal the court’s ruling. It is your job as her lawyer to protect this option to the best of your ability.

Bear in mind that appellate courts exist solely to review errors of law committed by the trial judge. In other words, your client cannot appeal simply because she wasn’t happy with the verdict.

Still, good trial lawyers try every case with a third eye – two eyes on the trial and the third on the record that an appellate court may ultimately review. They protect the appeal by making timely objections when appropriate and following up by a proffer when prevented from introducing evidence. Good trial lawyers get deeply familiar with the rules of procedure and evidence.

At all times during the trial, when good trial lawyers spot errors of any significance, they obtain a ruling from the judge. Without a ruling from the court, the trial lawyer has not preserved the right to appeal on that matter. Such was the fate of a lawyer who discovered what he considered to be jury misconduct. He never brought the matter to the attention to the judge. Ultimately, he found himself in court defending his omission.

This doesn’t mean that, as an alert trial lawyer, you must object to every infraction you see. Persistent objections will agitate judges and jurors alike, especially if many of these objections are overruled. A barrage of objections by you may cause jurors to think that you are trying to hide certain facts. Before you object, ask yourself: Will this objection help the case? Will it help in appeal? If not, it may be better left unspoken.

That said, certain objections are important in preserving an appeal: Be ready to object to summaries or charts coming into evidence that are not based on genuine data you have had the opportunity to inspect – or if that data is being misstated or mischaracterized by the opposing party.

Compound and leading questions, calls for a narrative, and “asked and answered” questions are often worthy of an objection, as are opposing counsel’s assumptions or misstatements of facts that are not in evidence, or that are argumentative or ambiguous.

Study the Federal Rules of Evidence, and, in particular, Federal Rule 404. This rule deals broadly with character evidence, providing that evidence of a person’s character is inadmissible to prove action in conformity with that character. It is only when character is an essential issue in a charge, claim or defense that the character evidence in question would be allowable. For example, if an individual is on trial for assault, evidence that underscores his peacefulness would be permitted. Federal Rule 404, and in particular, Rule 404 (b), which involves “prior bad acts,” is one of the most frequently cited rules of evidence. Objections can be made – and often are -- when the requirements of 404(b) are not fulfilled.

Be alert as well for times when your opponent asks a witness a question to which -- rather than answering -- the witness responds with a tangential narrative. At those points, you may need to object and ask that the testimony be stricken on the basis that the answer is not responsive or is otherwise improper. Similarly, it is your job to prevent lay witnesses from rendering opinions. Good trial lawyers will object when adverse witnesses stray from the facts of the case and into the realm of what they “think” or “assume.”

You must also object when a judge excludes your proposed jury instructions or gives a jury instruction to which you object. (Judges should give you an opportunity to make such objections at the bench.) If the judge does not grant your request to give a particular instruction, it is crucial that you include the proposed instruction in the record.

Oftentimes, trial lawyers are quick to object to comments and actions of opposing counsel and adverse witnesses, but less so when it comes to the judge’s questions. Keep in mind that objecting to a question or decision from the bench can be necessary to preserve the appeal. So too can the inclusion in the record of all exhibits. Before you rest your case, review all of the exhibits to confirm that you have not left anything out. It is a sad realization to discover, when preparing for an appeal, that the record is incomplete.

More about preserving and protecting the appeal can be found in chapter 11 of my new book, Anatomy of a Trial: A Handbook for Young Lawyers.