The three basics of effective trial advocacy: Knowledge/intelligence, skill/experience and passion/conviction
The three basics of effective trial advocacy, and persuasion beyond the law, are knowledge/intelligence/preparation, skill/experience, and passion/conviction. They all need to be synthesized into a harmonious whole.
Passion, conviction, and persuasion are major hallmarks of the Trial Lawyers College, which I attended for four weeks in August 1995, ten miles from the nearest paved road. The college assumed that the attendees already had basic trial skills and experience, and, therefore, included a heavy focus on helping the attendees become better people — and thus better lawyers — by knowing themselves and others better, including through discovering and telling their deepest and often pain-filled stories; knowing how to relate and engage better with others — as humans and not as overly-logical and intellectualized legal humanoids — including through psychodrama; knowing and embracing the very depths and heights of their pain and joy; finding, expressing, and trusting in the power of their realness; and trusting their gut. It all makes sense. As with so many important life lessons, the foregoing is easy to understand, but profound to practice and apply.
The TLC was a tremendous catalyst not only about how attendees approached their practices and lives from the internal being level, but also with how so many of them pursued major changes in their lives. Several divorces followed, as did several babies. Several attendees changed law firms or started their own. One, a hugger’s hugger, won such a huge jury verdict, and collected on it, that he decided to depart the law practice and to focus on the rest of the journey of life.
The TLC confirmed to me that I had been on the right path of following my heart and convictions, and not to conform for the sake of conformity. The TLC also confirmed that I needed to get back to private practice and ultimately to self-employment as the better approach to being fully self-actualized as a lawyer and person. Two years after the TLC, I returned to private practice from the public defender’s office, and two years after that I became my own boss, and have kept the same boss since.
To passion and conviction, I add taijiquan and spirituality, not of the touch-feely kind of spirituality, nor of any orthodox kind, but of the personal and necessary kind. Three of my key teachers on this path are Ram Dass, Dr. Ihaleakala Hew Len, and Alan Watts. All three teach mindfulness, which John Kabat-Zinn, in Mindfulness for Beginners, persuasively shows to be a bedrock of a life well lived, a wonderful antidote to feeling stress in our daily lives, and a practice that is entirely consistent even with the most mainstream-seeming of lives.
Skill, mixed with deep amounts of passion, are a heavy focus of the National Criminal Defense College’ Trial Practice Institute, which I attended the summer before the TLC, for two weeks at an Atlanta airport hotel, when the usual site in Macon, Georgia got flooded out by nature. The College and its supporters showed deep conviction and faith in its mission and the attendees by not just canceling the flooded-out session, seeing that the operating expenses were substantially higher at the hotel rather than at the usual Mercer Law School location, without raising the attendees’ fees to cover the difference.
At the Trial Practice Institute, each day we would handle another phase of trial preparation and execution (including client interviews, jury selection, opening, direct exam, cross exam, jury instructions, and closing). At the end of the afternoon, one of the instructing lawyers often would dazzle us in doing a demonstration of what we had just practiced earlier in the day, with the most amazing performances having been demonstrated by SunWolf incorporating a discussion of reasonable doubt into voir dire, talking to the jury as if she were in the box right with them; Lisa Wayne, doing a first-person closing of a winning battered spouse murder case; and Joe Johnson cross examining an expert witness after reeling him into Joe’s realm and having him in the palm of his hand to the point of having the expert ready to return a hearty handshake after Joe had substantially diminished his direct testimony. Near the top of those performances was John Delgado, who direct-examined his murder client leading him as smoothly as if he were cross-examining, while pointing his finger at the villains who pressured a false confession, and motioning to the angels with his hand palm-down. There also was cross-examination master Larry Pozner, who at once controls witnesses by adding one new fact at a time to each question if needed, but is still able to do so in a conversational story-telling way that makes witnesses prefer to cooperate with him rather than having him turn one simple question into ten, until the witness succumbs. Ed Mallett demonstrated by example how a true gentleman can effectively enter an objection while doing it politely (to overcome any perceived rudeness of having interrupted the opponent). Creme de la creme came from Andrea Lyon, who did the opening for the battered spouse defense, making it feel like I was in the very house at the very moment when the defendant’s husband would abuse his wife for the very last time.
Knowledge and intelligence are developed from unlimited sources and paths. Fellow criminal defense lawyer Jamison Koehler points out a great approach to learning, which is not to struggle with it, but to yield to it. The idea of learning a new language may sound romantic until faced with at-first seemingly incomprehensible grammar rules and, with Romance languages, remembering whether a noun is male or female. The path is worthwhile, nevertheless, to opening doors to knowing people better, to communicating with a wider cross-section of people, and to reading great writings without needing a translator. I felt all emboldened in registering for law school about using the law for good, but then learned, and ultimately accepted, how many aspects of the law seemed a mere grind (for instance having our moot court instructor so seriously lecture to us about the importance of using the right color for the cover of our legal briefs) and shocking (for instance that outrageous behavior is so broadly an available cause of action for lawsuits). So I returned to the reason of going to law school, which made it easier to transcend such discomfort.
With law school and the practice of law and life, I have learned to be less judgmental in a profession that involves so much judging, and to recognize that everyone has their pearls, but some seem to hide it in too much feces, whether intentionally or not, and sometimes it is just my perception. A less stark case in point was a first-year law professor who seemed to give torturous and rambling lectures. Yet, when I mentioned to this professor how I was inspired by the ACLU’s Norman Dorsen’s then-recent talk at the law school, including how he (like I) oppose even banning cigarette advertising from television, this professor said “I’m with him.” And that made me more with this law professor.
This article was inspired by a recent experience I had with a prosecutor who got his dander all up over my correct analysis to the judge of a statute, which analysis was critical to my arguing for a lenient sentence for my client. I at first was deeply irritated at this prosecutor, who would have the audacity, as I first saw it, to verbally, before the sentencing judge, attack my reading of a statute that was so critical to my client’s receiving a fair sentence. That was my passion talking. I then went to my next of the three prongs for successful advocacy, the skill prong, to recognize that a break in the action would be beneficial, so I got a five-minute break to bring the judge some more authorities that I needed to get from the nearby Internet hookup. I used that break as a time, as well, to calmly talk to the prosecutor in a successful effort to narrow down our quarrels before the judge, so that I could focus the judge better on the critical parts of my argument. Turning then to the knowledge and intelligence prong, I took my printout of the statute that was critical to my argument, and inserted some simple logic-based notations to show the judge why the prosecutor was misconstruing the statute, and, for good measure, brought in an appellate opinion to back me up.
By the time we returned to the judge, the prosecutor was calmer, and I no longer was irritated, making it easier for me to focus on the judge, who ended up agreeing with my interpretation of the key statute, followed by his giving my client a sentence within a range that we wanted.
As I tell my clients, our case is not about the prosecutor’s getting his or her dander up or not, whether feigned or not, nor about any grandstanding by opposing witnesses. It is about persuading the decisionmakers — the judge and jurors — to our side, in large part by giving them ways to feel good about ruling in our favor, whether that involve the decisionmakers feeling they have done the right thing or that they have just gotten to the right result by correctly applying the governing law to the evidence and circumstances of the case.