The Art of Advocacy

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" »

Posted by Paul Mark Sandler | Permalink | Email This Post

Posted In: Direct Examination , Persuasion , Trial Strategy

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The officer defendants in the Sean Bell case were acquitted Friday, prompting Mark Fass of the New York Law Journal to write an article about the strategic wisdom of waiving the right to a jury trial in certain cases. You can't argue with success; the defense counsel in the Bell case clearly did fine work and were correct to avoid pinning their clients' hopes to jurors who may well have been swayed by their emotions to convict. New York Supreme Court Justice Arthur J. Cooperman found the defendants not guilty on all counts.

As Fass points out, opting for a bench trial is a tried-and-true strategy for defense attorneys representing law enforcement clients in jurisdictions where citizens may have negative opinions of the police.

Fass quotes one defense attorney's explanation of the rationale:

"With a jury, there's always a chance that emotion can enter the process," said Mark Bederow of Thompson Hine, who recently represented R. Lindley Devecchio, the former FBI agent who opted for a bench trial in his successful defense of four murder charges.

"With a judge, the expectation is that [the decision] will be purely on the facts and the law, and that extra-judicial influences will not play a role. And I think you saw that specifically in the Bell case."

But defense attorneys should be careful not to presume that judges are immune from "extra-judicial influences."

Continue reading "Sean Bell Case Acquittal and Waiving the Right to a Jury Trial" »

Posted by Paul Mark Sandler | Permalink | Email This Post

Posted In: Trial Strategy

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