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

July 14 is a sad date in the annals of American legal history. On that day in 1921, after only five hours of deliberations, a Dedham, Massachusetts jury rendered guilty verdicts against two Italian immigrants, Nicola Sacco and Bartolomeo Vanzetti, for robbery and murder.

The crimes occurred on April 15, 1920 in South Braintree, Massachusetts, a small town south of Boston. Those responsible shot and killed a guard and a shoe factory paymaster carrying over $15,000 in payroll cash, then made off with the money in a getaway car. Less than a month later, police arrested Sacco and Vanzetti as they were traveling at night on a trolley from Bridgewater to Brockton. Both men were carrying guns when apprehended.

One hundred witnesses testified during the trial. For every eyewitness who identified the defendants as the culprits, another witness swore to the contrary. Many eyewitnesses for the prosecution were exposed as simply mistaken or not testifying truthfully. The defense presented a straightforward alibi. Vanzetti was in Plymouth selling fish. Sacco was in Boston at the Italian consulate obtaining a passport.

Continue reading "Sacco and Vanzetti" »

Are you watching HBO’s production of McCullough's biography “John Adams”? If not, you might want to rent it later. The segment devoted to the 1770 Boston Massacre is fun to watch from a trial attorney's point of view, as the hero demonstrates several valuable advocacy techniques.

Adams, then only 34, defended the indicted soldiers and won the case. In HBO's telling, he lines up his witnesses very much as the doctrines of primacy and recency would advise him to: opening and concluding with his most valuable witnesses, wedging witnesses of lesser importance in the middle.

Also, in final argument, Adams connects the facts of the case with a universal appeal to the rule of law. Here, even though he was representing the soldiers, he was clearly speaking to jurors who were all too aware of English encroachment on their rights.

For those interested in reading up on the Boston Massacre trial, Hiller B. Zobel has written a classic account of the trial, which recounts from actual notes the arguments of counsel as well as engaging summaries of the testimony and historical background.

You might also enjoy browsing this excellent website about the case, created by law professor Douglas O. Linder.