Common Sense Rules of Advocacy for Lawyers (an excerpt from the new book)
INTRODUCTION
The excerpt, below, is from Common Sense Rules of Advocacy for Lawyers, by Keith Evans. It’s pulled from four sections of the book: The Dimensions of Advocacy, Advocacy
as Theater, Cross-Examination, and Written Advocacy. It is
both entertaining and… brief.
The author, Keith Evans, is the de Tocqueville of advocacy: a visitor who appreciates the beauty of American jurisprudence. He studied law at Cambridge, starting as a Barrister in 1963, and continuing as a trial lawyer in California from 1975 to 1996. A distinguished professor of trial advocacy in both the U.S. and the U.K., Evans retired in 1998.
More information about the book Common Sense Rules of Advocacy for Lawyers — and author Keith Evans — follows the excerpt. Enjoy!
Dimensions of Advocacy
The Fourth Dimension: Time
Time. Your time. My time. It’s expensive stuff. Some of
you, perhaps most of you, measure your profitability by
time. Billable hours mean time. Time to the lawyer can be
enemy or paymaster. Time is a demanding mistress, a jealous
lover, a jailer, a slave driver.
It can also be elastic. Compare ten minutes making love with ten minutes having a root canal fixed. And think of how long a drawn-out six hours in a jury box listening to an incompetent, wasteful attorney can be. Most jurors have better things to do with their time. We don’t usually pay them enough to park their car, and they are giving their time as a public duty. They have to rush around outside court hours getting everything done just so they can sit there and listen to you, you, hour after hour, day after day, perhaps even week after week.
And what about the judge? Do you know how much she has waiting to be done, on the other side of the corridor? Do you know how much paper she has to look at just to stay abreast of the workload?
Time is the “fourth dimension” in which you operate as a trial lawyer, and if you forget it, if you forget it for one moment of your factfinder’s precious time, look out! If you ever give them cause to feel that you are wasting their time, they will resent you for it, and if you get your factfinder feeling resentful about you, you are a good halfway to losing your case. This is far more important than most lawyers realize.
It’s worse than that. It’s not just that the inexperienced attorney hasn’t grasped the problems of the Fourth Dimension. There is an opposite pressure that works on us and we usually give way before it. It’s a two-pronged thing.
FIRST PRONG: You’ve got a client. The client is almost certainly in court, listening intently to everything. You feel this huge obligation to make sure she feels she is getting her money’s worth. You have this strong conviction that you ought to be giving her so many questions in cross-examination, so many square feet of transcript. If you don’t do this, isn’t she going to feel that you didn’t do your best for her, that you sold her short, that you let her down?
Sure. She may indeed. And she would be as wrong as you were. This is something you must talk to her about in advance. This is part of the private advocacy that goes on between attorney and client. You’ve got to explain it, make her understand the Fourth Dimension, make her appreciate that brevity is your secret weapon. When she sees the quality of attention you are getting from your factfinder, she’ll stop worrying about it, but, yes, you do have a duty to explain all this to your client in advance.
SECOND PRONG: The other kind of pressure that will push you into wasting time is your own insecurity. You’ll be convinced that you didn’t make yourself clear enough,
didn’t say it forcefully enough, didn’t get your point across adequately. And you will repeat yourself. It’s so understandable, this fear, this anxiety. We’ve all suffered
from it and know the pressure. Don’t yield to it.
Advocacy as Theater
Rule #28: Be Brief
Do not use up a minute more of your factfinder’s time than is absolutely necessary. It works. It works incredibly well. You doubt this? I doubted it. We all doubt it. The practical rule, Be Brief, sounds like an encouragement to chicken out, not to do your best for the client, not to do a through job. It’s not so.
Being brief requires planning, real preparation, intensely concentrated thinking. Covering all the points you need to cover without a single wasted word, making the impact you need to make as economically as you possible can, is anything but easy. Getting ready to do this successfully can be hard labor. But it works and I’ll demonstrate to you why it works.
Imagine yourself sitting on a jury. The trial lawyer stands up and does his opening. He tells you a story, a story that’s easy to follow and that engages your interest. You can see very clearly why the case had to come to court. He’s made you feel a wrong has been suffered that needs to be righted. But suddenly he’s stopped. Just when you were comfortably settling in to the unexpectedly enjoyable business of listening to this interesting guy — he’s done. He has stopped before you’ve had enough. He followed the rule of all good entertainment: he left you wanting more.
You are now in a state of looking forward to the next time that guy gets to his feet. When he does, he will have your total attention. But he does it again. Even before you settle in to really enjoying it, he’s finished. And he does it again the time after that. He does it all the way through the trial. Then you come to his final summation and instead of being so brief, this time he gives you a little more. And even a little bit more is so gratifying.
By working the Brevity Rule in harness with the Tell Them a Story Rule (Rule 22) in harness with the Avoid Detail Rule (Rule 26), this advocate has you sitting in rapt attention every time he opens his mouth. When you see it done properly, it’s a delight to behold, and the contrast with the ordinary, run-of-the-mill advocate is amazing.
Cross-Examination
Rule #28 Again: Be as Brief as You Can Be
There is a special reason for this rule in cross-examination, quite apart from your constant duty to save your factfinder’s time. Almost all witnesses get more confident and more effective the longer you cross-examine them. Why is this?
When you stand up to cross-examine, the witness is almost bound to be wary of you. At this point, you have an enormous advantage: he doesn’t know how much you know. If he has been slanting his evidence, especially if he’s been telling lies, he is afraid of you and of what you might have up your sleeve.
During the first five minutes, he is assessing the situation, estimating how dangerous you are. It’s a rare witness who starts taking liberties with you at the outset. But the longer you go on without hurting him, the more confident he’s going to get. The more confident he gets, the less easy he is to control.
You may be intending to lull him into a sense of confidence. It’s useful to do this sometimes. But if that is not what you’re trying to do, you should never let it happen. If you can get everything done with a witness during those first few minutes, so much the better. If you need longer, if it’s one of those cross-examinations that can’t be done quickly, make sure you use those first minutes to convince him that he dare not relax. All these things are encompassed by the Be Brief Rule.
Written Advocacy:
Rule #99: There’s No Rule of Court Which Requires Your
Document to Be of a Minimum Length
It’s the same all the way through advocacy: brevity works wonders. If you believe nothing else you have read in this book, believe this.
Brevity is such a scarce commodity, now as over the centuries. Listen to one of the greatest of our predecessors, an attorney who used to spellbind the juries and whose economic use of English is still an example to us all, but who on this occasion was suffering at the hands of the wordy and the unfocused. Abraham Lincoln, reading a report of a Congressional committee on a new gun, raised his weary head and exclaimed, “I should want a new lease of life to read this through! Why can’t an investigating committee show a grain of common sense? If I send a man to buy a horse for me, I expect him to tell me that horse’s points — not how many hairs he has in his tail!”
Why can’t an attorney show a grain of common sense, and regard it as a point of professional honor to be as brief as possible? We have already turned up a number of reasons — the sheer weight of tradition and convention, the occasional need for the precision of the engineer, the badge-language we are tempted to flaunt — but there is another reason, a much more sinister one, and it is this.
Churning out boilerplate makes money.
A battalion of associates busily producing needless verbiage not only pays the rent, it makes a handsome profit.
I recently received a 72-page document. It was an answer to some interrogatories in a wrongful termination case. Every single interrogatory had first been objected to, then answered briefly. The objection occupied seven lines, and the identical seven lines had been reproduced, over and over again, in respect of every single request.
It was wearisome reading. It involved trudging from page to page, wading through repetitious junk to find the meat of the response. Three words were all we needed: “The same objection.” Everyone would have understood and not one of us would have complained about the missing seven lines. Two-thirds of the paper would have been saved.
And it was slightly sickening to reflect that this cynical waste of paper, time, and effort is how our profession operates. Those answers to interrogatories were absolutely typical: the generating of useless language is the norm. It pays the rent.
That pleading came from a law firm that enjoys the highest reputation. All their other pleadings have been the same. When they took my client’s deposition, they spun it out over nine days.
We all know what I’m talking about. This shameless behavior is rampant in the legal profession. And it’s not only done to make money: there’s a grubbier motive some of the time.
It is a recognized strategy, these days, to paper your opponent to death. Drown him. Use up his resources. Wage a war of attrition. Use the financial muscle of your client to drive your opponent into the ground. Beat him, not on the justice of the case, or on the right interpretation of law and fact, but by superior wealth.
There are hordes of American attorneys willing to sell themselves as mercenaries in this shabby war.
Take another look in the mirror. Are you one of them?
If your client objects to paying as much for a slender document as he would pay for half a pound of wasted paper, use a little private advocacy. Remind him of what Mark Twain wrote to Abigail — when he apologized for the length of his letter, explaining that it would have been much shorter if he had had more time.
Remind your client, too, that the slow process of distillation which makes brandy out of wine has its counterpart in lawyering, and that ten words that move your reader are worth more than ten thousand that don’t. Show him your product and explain the work that went into it. Explain, as you explained before you began your trial, that brevity is your secret weapon, but that it has to be worked for with time and effort. Do this, and you’re unlikely to have trouble with your bill.
Brevity is not only a characteristic of effective advocacy. In this profession of ours it is a badge of honor, recognized as such by the oppressed judges and by every thoughtful attorney. You want to be outstanding? Be brief.
About the Book
Common Sense Rules of Advocacy for Lawyers
Author: Keith Evans
Published by: TheCapitol.Net
Courtesy of: www.thecapitol.net
ISBN 1-58733-005-9, 240 pages, hardcover, $35
Common Sense Rules of Advocacy
for Lawyers is the
classic guide to advocacy for trial lawyers. First published in 1994, it has been hailed as the finest book of its kind (see the endorsements, below). Keith Evans explains the previously unwritten rules of advocacy, all based on the premise that the purpose of a trial is not to locate the truth — that’s what discovery is for — but to present allowable evidence in such a way as to gain a favorable opinion from your factfinder (judge, jury, arbitrator, boss, etc.).
Common Sense Rules superbly illustrates the premise that advocacy is theater, explaining the nuances of persuasion in a writing style more like a letter from a friend than a legal text. The wisdom of this book, earned through hundreds of trials, has extraordinary value, not only for the trial lawyer, but for anyone involved in persuasion and
negotiation: mediators, facilitators, arbitrators, public speakers — anyone who’s ever sweated through a public presentation. Contents include:
- Introduction
- The Dimensions of Advocacy
- The Mandatory Rules of Advocacy
- Advocacy as Theater
- The Psychology of Advocacy
- The Examination of Witnesses
- Direct Examination
- Cross-Examination
- Re-Direct Examination
- The Final Argument
- Written Advocacy
- Advocacy in the Age of High Technology
- Conclusion
Common Sense Rules of Advocacy for Lawyers contains tips and rules that will make anyone a better advocate in 10 minutes a day. Keith Evans’ commentary on courtroom choreography will be treasured by veteran trial lawyers and a godsend for those new to advocacy. This book is a perfect gift for law school grads, a great “welcome aboard” present for new associates, and an essential reference for law schools and law firms.
Endorsements
“The book is a valuable review for the old timers and an
excellent primer for those who are starting the climb.”
-- Jacob A. Stein
Stein, Mitchell & Mezines, Washington, DC
“The scope of the book — everything from what to wear in the courtroom to writing a trial brief — is truly impressive, yet the author maintains a tone that is refreshingly readable… I wish I had had this book when I was a young lawyer. I highly recommend it.”
-- Karl Tegland, author,
Courtroom Handbook on Washington Evidence
“Advocacy is an art as well as a skill, and Keith Evans presents the rules of mastering that art in a very down to earth manner. Filled with humor and eminently readable, his book is a great introduction for the new lawyer and a wonderful learning tool for the advocate with experience.”
-- Sherman L. Cohn, Professor
Georgetown University Law Center
(first national President of American Inns of Court)
“This is a wonderful ‘Bible’ for the trial lawyer who wants to win. If only we had had this in law school!”<br>
-- Browne Greene<br>
Greene, Broillet, Panish & Wheeler, Santa Monica, CA
“This is a remarkable compendium of useful advice presented in a straightforward, entertaining manner. If new advocates could have only one ‘how to’ book this would be it.”
-- Roxanne Barton Conlin
Roxanne Conlin & Associates, Des Moines, IA
(first woman President of Association of
Trial Lawyers of America)
Copyright ©2004 by TheCapitol.Net, Inc. All Rights Reserved. Please feel free to duplicate or distribute this file as long as the contents are not changed and this copyright notice is intact. Thank you.About the Author
KEITH EVANS is a retired member of the Bars of both England and California, a Scholar of the Middle Temple Inn of Court in London, a member of Gray’s Inn and a former Honorary
Master of San Diego’s Louis M. Welsh American Inn of Court.
He studied law at Cambridge and started trial practice as an English Barrister in 1963. From 1975 until 1996 he was an active member of the California Bar.
He has handled several hundred jury trials and has practiced in State and Federal Courts as well as, in England, every court from the Old Bailey to the House of Lords.
He was forced to retire (while, as he puts it, on a winning run) after suffering a stroke in 1998.
The holder of an Outstanding Trial Lawyer award from the San Diego Trial Lawyer’s Association, he is also a distinguished teacher of trial advocacy. His book on the subject is the standard text in England and in many parts of the British Commonwealth.
He has been a visiting professor at an American university
law school, has been on the faculty of the National Institute for Trial Advocacy (NITA), and he still teaches a highly acclaimed full-day CLE seminar on trial-advocacy.
He practiced with several firms in the United States, including Gray, Cary in San Diego and the aviation litigation firm of Speiser, Krause & Cook in New York City and Washington, DC.