Last fall (October 2000) the District of Columbia Trial Lawyers Association
invited me to speak at their regular monthly meeting As a retired Judge, I was
ask to be open and frank in commenting on how trial lawyers could improve their
performance in front of a judge and a jury. The theory was that I as a retired
Judge would have a greater liberty in speaking the truth undeterred by the
notion that a lawyer in the audience might be appearing in from of me the next
day. In reflecting on my 17 plus years on the bench --- some 750 jury trials and
countless motions hearings and court trials --- it became obvious that most of
the dos and don'ts of persuasion could be summarized in five points which I have
titled the Five Commandments of a Trial Lawyer. Rather then allowing a negative
impression to control the thought process, I put the commandments in not only in
the negative -Thou Shall Not, but also the affirmative - Thou Shall.
Overriding these five commandments is the principle, rule and law of
First Impressions. Most every thing we do in life is affected
by this principle. The principle recognizes the importance of our ability to
record and remember prior occurrences. This historical memory has an impact on
our future actions - for better or worse. For the trial lawyer as any sales
person this can be critical. A Judge or a jury will be affected by their first
impressions of a lawyer. It is important to recognize that first impressions do
no just begin in the courtroom. They start with the first interaction whether
that be, a letter, a pleading, a telephone call, a social event, a parking lot
occurrence, an interaction with court staff, or the opening statement. Now most
Judges and for that matter jurors desire to be fair so they naturally try to
protect against first impressions being controlling. However when a pattern
starts to show itself there is no turning back the powerful implications of this
law of human nature.
I. THOU SHALL NOT BE A
PRESENTER . . .
. . . THOU SHALL BE A
PERSUADER
So how is it that a
lawyer becomes a persuader and not just a presenter? How does a lawyer move from
the bottom 80 percent of the class to the top 20 percent of the class?
Lawyers regularly come back to chambers after a trial and want to know how
they did in their performance. Whether they have won or lost they want their
performance critiqued. First, I point out that winning and losing a lawsuit is
not a measure of professional skill. Good persuaders cannot overcome bad facts
and law. Nor can poor persuaders destroy good facts and law. Moreover, the
dynamics of a jury trial often allow a jury to overcompensate for poor
lawyering. What trial judge has not been told by a jury - "boy that lawyer was
just horrible but we could not hold it against the client." Often they even add
"can we make sure the lawyer doesn't get paid."
Second, I tell the inquiring lawyer that to become a top-notch trial lawyer,
you have to make it your professional zeal to study the art of persuasion. You
need to make it the object of your attention every waking hour of the day. That
means you have to read about the art, observe the practice of the art, study the
art and practice the art. If you haven't been to a trial practice weeklong
course, you need to put it at the top of your priority list. If your employer
will not pay for it, you need to save the money and take a week's annual leave.
If it is essential, a true professional will make it their personal professional
priority.
Third, you have to understand the elements of persuasion.
The elements of persuasion were first established 2000 years ago by
Aristotle, the father of persuasion. Those elements are: (1) believability; (2)
sympathy; and (3) logic. For a more complete treatment of this commandment see
VirtualCourthouse Issue 4:6, June 1999 www.montyahalt.com/articles/vc/vc-33.htm
.
II. THOU SHALL NOT VERBALLY FIGHT . .
.
. . . THOU SHALL TREAT
EVERONE FAIRLY
Key to being a persuasive individual is to be viewed by the decision maker as
a fair individual. There is nothing more detracting from the logical thought
process as a verbal fistfight. A lawyer who gets in verbal fistfights on
frequent occasions simply is not believable to a Judge. This dynamic may not
apply to the occasional battles usually attributed to the frustrations of trial
work. It is the frequent pattern that exists with some advocates, which cause a
judge to ignore the persuasiveness of the lawyer. Picture yourself being the
judge assigned discovery motions. You see this one particular lawyer have a
verbal fight every week. Why would you put any weight in what that lawyer had to
say about any given point? I must say that it is a constant battle for a Judge
to divorce the annoying and distracting tendencies of lawyers from the clients
right to have a fair trial, but in the final analysis it is the client who chose
the lawyer and is therefore going to be affected by the good traits as well as
the bad traits of the individual lawyer.
III. THOU SHALL NOT CITE AN UNREAD CASE . . .
. . . THOU SHALL BE A
STUDENT OF THE LAW
The sloppiness with regard to legal research and citations is unbelievably
frequent. It is a rare that a lawyer's word on the law can be trusted, not
because of purposeful misleading statements, but simply sloppiness. This is
perhaps the most single important attribute of a trial lawyer---believability on
the law. Sadly, very few lawyers possess this attribute. Lead a judge astray on
the law-on purpose or by neglect - results in never being able to win an
important point of law in a real important case. It is as if lawyers have not
read the rules of professional conduct.
Rule 3.3. Candor toward the tribunal.
(a) A lawyer shall not
knowingly:.
(1) make a false statement of material fact or law to a
tribunal;. …..
(3) fail to disclose to the tribunal legal authority in
the controlling jurisdiction known to the lawyer to be directly adverse to the
position of the client and not disclosed by opposing counsel;
And the comments to the rule
state:
Misleading legal argument. -- Legal argument based on a knowingly false
representation of law constitutes dishonesty toward the tribunal. A lawyer is
not required to make a disinterested exposition of the law, but must recognize
the existence of pertinent legal authorities. Furthermore, as stated in
paragraph (a) (3), an advocate has a duty to disclose directly adverse authority
in the controlling jurisdiction which has not been disclosed by the opposing
party. The underlying concept is that legal argument is a discussion seeking to
determine the legal premises properly applicable to the case.
See Maryland Rules of Professional Conduct, Rule 3.3.
To make sure you do not fall into this category you need to
become a student of the law.
IV. THOU
SHALL NOT BE SLOPPY . . .
. . . THOU SHALL ALWAYS DRESS PROFESSIONALLY
Ah- the age of the Internet. Casual is better and besides that it is more
comfortable. But casual versus formal is only half of the question. A sloppy
lawyer is not a persuasive lawyer whether it is the dress, the organization of
the pleadings, and the use of the counsel table in the courtroom or the car,
which jurors see in the parking lot. Of course part of the problem is
generational. I remember my parents complaining about my dress. How could I wear
blue jeans on a Saturday night? They wanted to know. I also remember that the
top-notch winners always looked like a million dollars and usually were paid a
million dollars. My father -in law Blair Smith, a former States Attorney, and a
superior trial lawyer, was known for his superior dress and his winning way in
the courtroom. He would walk into a room with the Governor and people would want
to know who was with Blair. The point is -your dress does make a big difference
as well as your general organization. The better you dress the better you
perform and the more persuasive you are with jury, judge and client. The more
cases you will also win.
V. THOU SHALT NOT TRY TO SELL AN UN-SELLABLE
POINT . . .
. . . THOU SHALL PICK ISSUE STRATEGALLY
This last commandment could be the sleeper and the most important. Oh - the
agile mind of the lawyer. Give a lawyer enough time and how many issues can he
come up with. Sometimes it seems endless. Put three partners in a room and more
than the power of three compounds the problem. And then there is the shot-gun
approach. Rarely does this approach help achieve a win. In fact the approach
usually results in the judge or jury not taking any one issue seriously. A top
20% lawyer will pick the two or three most important issues and keep hammering
them home. Even though unpersuasive in the present case the lawyer's credibility
is preserved for the next case.
CONCLUSION
I am confident that if you follow these five commandments
that you will start achieving greater results in the courtroom and then more
clients will be knocking at your door.
Access to previous articles: see below
links.
