The Art of Advocacy

There is something to be said about focusing a witness examination around one indelible image. For the prosecution in the trial of Alaskan Senator Ted Stevens, the image of choice was a $2,695 vibrating Shiatsu massage lounger from Brookstone.

Reporter Dana Milbank narrates the prosecution’s cross-examination of Sen. Stevens in today’s Washington Post. The senator faces seven felony counts charging that he deliberately concealed on Senate ethics forms $250,000 in goods and services he received for his home in Alaska. He contends that the massage chair, among other items, was borrowed from friends or given despite the fact he declined the offers.

To convince a jury of the merits of a case, attorneys want to provide memorable testimony that will overwhelm competing arguments. The prosecutor in the Stevens trial seems to know this lesson well. Brenda Morris used the massage chair as a prime example of the alleged goodies received by Sen. Stevens, describing the chair in her opening statement as the "expensive massage chair from Brookstone -- you know, that gadget store you see in all the malls."

The chair came up again in multiple witness examinations, most importantly in the cross of the defendant himself. Here is the penultimate moment cited by Milbank:

Prosecutor Brenda Morris, toward the end of her cross-examination of the senator yesterday, settled in for a long discussion about the chair, which Alaska restaurateur Bob Persons bought for Stevens as a gift seven years ago -- but which Stevens never reported on his Senate disclosure forms.

Continue reading "The Ted Stevens Trial and the Lesson of the Memorable Image" »

Posted by Paul Mark Sandler | Permalink | Email This Post

Posted In: Direct Examination , Jury , Persuasion , Trial Strategy

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The Washington Post had an interesting piece yesterday on the art of evading questions. The story contrasts Alaska Governor Sarah Palin’s blunt refusal to answer questions during the VP debate last week with Obama, Biden and McCain’s more subtle techniques of evasion.

For advocates caught between a rock and a rhetorical hard place, the article might offer some helpful tips. But judges asking questions in court won’t be fooled the way “Joe six-pack” might. If you have no good answer for a question from the Bench, it is probably wiser to err on the side of honesty, frankly admitting that you cannot respond fully to the question at this time but will submit a supplemental memorandum if the court desires, or state "I am not sure but under the circumstances the answer could only be..." When pushed against the wall you might state, "while I am not certain, my guess would be..."

Best solution, be prepared and know your subject matter. Whatever you do, don't bluff. An evasive answer, even as artful a dodge as Obama’s answer cited in the Post article, will hurt your ethos with a sophisticated listener.

Posted by Paul Mark Sandler | Permalink | Email This Post

Posted In: Persuasion , Trial Strategy

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For those who plan to tune in to the presidential debate this Friday, here is a cheat sheet on some common logical fallacies. One can only hope these two fine candidates will steer clear of such foibles, but I, for one, am not holding my breath.

Slippery Slope
The “slippery slope” argument falsely assumes that once you take a moderate first step in a particular direction, a catastrophic chain of events will follow. In many cases, a better metaphor would be a staircase with many safe steps along the way.

For instance, one candidate told a radio show that choosing a vice president based on certain non-negotiable positions would send him down a “slippery slope.”

On the other hand, sometimes the slippery slope does exist and can be a legitimate basis for an argument. When you hear language like “opening the floodgates” and “slippery slope” your job is to make certain that the argument is true.

Compound Question
A question like, “Isn’t America tired of Democrats wanting to raise taxes?” is a compound question because it actually involves two or more issues that cannot be accurately answered with a single response. It assumes that Democrats have always wanted to raise taxes and also that you may have a position on the issue. The best response to a compound question is to point out that the questioner has made a false or unwarranted assumption.

Continue reading "Fallacious Arguments" »

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Posted In: Direct Examination , Persuasion , Trial Strategy

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More on the subject of researching judges:

In addition to reading prior opinions and talking with former law clerks, court personnel, and other attorneys about the judge's manner and preferences, be sure to observe the jurist in court, particularly if you are presenting a case before him/her for the first time. There is no substitute for this firsthand knowledge.

Observe the judge's style, what s/he seems to like and dislike, how s/he relies on other cases. Then, tailor your presentation to these preferences. (Without, of course, compromising your own natural style.)

By way of example, consider the story of a young trial lawyer defending a criminal assault case.

Continue reading "Researching judges" »

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Posted In: Judges , Persuasion

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The last post touched on writing for judges. Now let's consider prepping for an appearance in court. According to the receiver-centered school of rhetoric, the more you know about the jurist's attitudes, values, personality and background, the more effective an argument you can fashion.

How do you research a judge? To begin with, read all relevant opinions and other writings to gain an appreciation of the judge's views. If those views differ from the position you plan to present in court, be ready to acknowledge this difference, as a show of respect, and then explain why the jurist should hear you out. Think of the potential embarrassment if you started arguing your point, ignoring the court's standing on the matter. That kind oversight will be detrimental to your ethos in many cases.

Second, you will need insight into the judge's mannerisms, style and idiosyncrasies. For example, will the judge be receptive to your moving away from the lectern? Will she have read your brief before oral argument? How much time should you devote to the facts or to the questions presented? Does the judge have a long or short attention span? Does he pepper counsel with many questions? Reading opinions won't provide answers to questions like these.

Continue reading "Communicating with Judges at Trial" »

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Posted In: Judges , Persuasion

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It's obvious that attorneys should research judges before they argue before them, and that they should write their briefs with the judges' philosophies and predilections in mind. Why, then, do judges remain so frustrated with how lawyers write motions?

U.S. Supreme Court Justice Antonin Scalia apparently feels so strongly about the subject of legal writing that he's devoted much of his new book to it (Making Your Case: The Art of Persuading Cases). If you haven't time to read the book, you might check out this older article, published in 2002 by Georgetown law professor Kristen K. Robbins Tiscione. The piece summarizes the results of an unusual survey of federal judges on the subject of legal writing. Three hundred and fifty-five judges took part in September 1999, and their collective responses portray a judiciary that is a bit fed-up with long-winded briefs that are nonetheless lacking crucial legal analysis.

Continue reading "Writing for Judges" »

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Posted In: Judges , Persuasion

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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.

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Posted In: Persuasion

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