Effective advocacy is a product not only of training and experience but also of willingness to reexamine experience, learn and relearn basic principles, and condition one’s satisfaction on achieving results rather than a stellar performance in court.
“Men are wise in proportion, not to their experience, but to their capacity for experience.” – James Boswell, Life of Samuel Johnson 1791
Experience. An old saw has it that every prospective employer demands it but none are willing to provide it. One would think that something so highly valued would be almost impervious to criticism, but even experience has its dark side. Experience can be a dangerous thing; it can fool you into thinking you know more than you really do, and make you believe that you routinely apply all the lessons you have learned over the years.
As a relative newcomer to the bench, I still remember what it was like to litigate: the pressure to win; the tough decisions; and the challenges of managing clients and their expectations. But a year on the bench hearing cases has given me a new perspective. I realize now that in the press of litigation I lost sight of some of the lessons I had learned, and that there was a lot I did not know. My experience on the bench over the last year confirms that many lawyers also lose sight of some of the important lessons of litigating cases, or haven’t yet learned them. So, while my litigating experience is still fresh in my mind, here are a few things I wish I would have better understood and consistently followed as a lawyer.
If Wishes Were Horses …
Weak cases don’t get stronger because you (or your clients) want them to. Trial lawyers are a bit like yesterday’s gladiators, fighting to right any wrong and fearlessly taking on the impossible. It is a great tradition, but also one that can cloud one’s judgment.
You know the situation I am talking about: your initial reaction is that the case is weak. Spurred on by your creativity and your desire to please your client, however, you develop a number of arguments that you believe might prevail. The more you think about these arguments, the more you convince yourself, and your client, that you have a good chance to win.
While you may win some of those cases, you will lose most of them. The reason you will lose is because it is easy to convince yourself and your client of your rightness, but much more difficult to convince a judge or a jury. You can put lipstick on a pig, but chances are the court will recognize that it is still a pig. I see a lot of lawyers putting lipstick on pigs, with judges and juries quickly seeing what is behind the lipstick.
Litigators should objectively evaluate their client’s case, candidly tell the client if the case is weak, and stick with that judgment unless something changes to justify a more favorable conclusion. A client with a weak case is not well-served by an ambiguous or overly optimistic lawyer. It is in the nature of some clients to see with remarkable clarity and receptiveness all that is good about their case, but to be blind to the weaknesses. Indeed, some clients will interpret their lawyer’s candor as an indication that their lawyer is not a zealous advocate. Ironically, those clients who most need a candid assessment of their case are the ones who most want someone to tell them they will win. Regrettably, sometimes lawyers give those clients what they want instead of what they need.
When a lawyer gives clients what they want instead of what they need, it usually turns out badly for both. Though the lawyer may retain the client and earn a fee by giving an overly optimistic view of the case, the potential disappointment, anger, fee dispute, and (sometimes) malpractice suit is too high a price to pay. If the client replaces you with another lawyer willing to give the client an unrealistically optimistic assessment of the case, you should write it off as a stroke of good luck and move on.
Preparation and Performance
What a lawyer does before stepping into the courtroom usually matters more than what the lawyer does in the courtroom. It will not surprise you to learn that I see a fair number of lawyers who are self-absorbed in the courtroom. You know the ones: any time they have a major courtroom appearance, they focus most of their attention on their own performance. In short, they want to look good. They practice their arguments and their presentations, and they hone their examinations, all with the mistaken idea that the success of their case necessarily tracks the success of their performance.
As a litigator who loved being in the courtroom I feel strange saying this, but effective courtroom advocacy is not mainly about the lawyer’s courtroom performance. Though lawyers are an essential part of the process and irreplaceable facilitators of evidence in trial, the outcome is much more dependent upon the evidence, and how it is presented to the decision maker by the witnesses. No matter how well a lawyer prepares for and presents a direct examination, the testimony is ineffective unless presented well by the witnesses. Poorly prepared witnesses who are nervous about testifying can, and often do, fatally harm a case.
In contrast, well-prepared witnesses often bring about a favorable result on the strength of their presentation. With that perspective, a lawyer will recognize that limited time is better spent preparing witnesses whose presentation is vital than polishing the lawyer’s performance. Helping witnesses practice their direct and cross-examinations, orienting them to the courtroom, helping them review documents and deposition testimony, and helping them to be comfortable and credible in the courtroom lay the groundwork for a strong presentation.
The same concept holds true when arguing a motion. As a trial lawyer, I was careful and thoughtful about my briefs, but I believed that my oral argument was equally (or more) important. What I now know is that oral argument, at least at the district court level, is generally far less influential than most litigators believe. While there are cases where oral argument tips the balance one way or the other, most decisions are made before the lawyers step into the courtroom, based on the lawyers’ briefs. Though you never want to treat oral argument as irrelevant—it could affect the outcome, after all—it is critical to put together the best brief you can, and to focus (what should be) a relatively short oral argument on a few key issues.
How something is said is almost as important as what is said. Many lawyers seem to believe that their most important responsibility is to get the information or argument before the judge or jury. These lawyers trust the judge and jury to absorb the information and analyze it thoroughly and accurately. For example, a lawyer may read from a script when delivering an argument, or offer deposition testimony in lieu of the real thing, thinking that the information is there before the decision maker, and that therefore the lawyer’s most important job is done.
That cavalier approach to communication is a mistake. Think of the last time you talked with someone who did not make eye contact, spoke in a monotone, had distracting behavior such as twirling a pen while speaking, or droned on about irrelevant or redundant topics. How memorable was that conversation? How effective was that person’s message? Could you even concentrate on what the person was saying? What happens to your ability to listen when the person drones on for far too long on irrelevant or redundant issues? Unless you are far more skilled and patient than most, you probably do not walk away from that conversation with much.
The effect of poor communication skills is the same in the courtroom. Unless you deliver your presentation in a way that is easy to follow and interesting to the judge or jury, much of what you are trying to communicate will be lost, even though the judge or jury are trying their best to absorb what you are presenting. If you want your judge or jury to consider your evidence and your arguments, you need to present them in a way that is easy for the audience to understand. The techniques for accomplishing this are basic: good eye contact; good conversational tone, pace, and inflection in your voice; good posture; absence of physical and verbal distractions; good organization; and brevity. You will be appreciated, and possibly rewarded, for those efforts.
Lead from Strength
Weak arguments dilute good ones. I will admit to having made this mistake. Sometimes I gave a judge or jury as many arguments as possible in hopes that one of them would hit the mark. My experience on the bench confirms that this is a common, if understandable, mistake. The misguided thinking is that, since you do not know which arguments the judge or jury will find persuasive, your client is best served by giving as many arguments as possible from which to choose.
What I now know is that the credibility of good arguments is eroded by the incredibility of bad ones. It is not that judges and juries are not capable of separating wheat from chaff, but they wonder why an otherwise respectable, intelligent and credible lawyer is giving them so much chaff. If the case is so good, the decision maker’s thinking goes, why is it necessary to spend so much time and effort on weak and unsupported arguments? It is easy for them to conclude that the better arguments are not as strong as they seem.
Another reason to forgo your weaker arguments and rely only on your best arguments is that judges and juries are pretty astute. If you cannot win on your strong arguments, you are almost certainly not going to win on your weak ones. Being conscientious and responsible, though, judges and juries will look at each and every argument you put forward. The problem for the lawyer putting forward a smorgasbord of arguments is that judges and juries have a limited amount of time to consider your case, and will likely allocate that finite amount of time evenly among the arguments presented. Before you throw your weak-but-nonsanctionable arguments into your next brief, ask yourself this: if the judge has one hour to prepare, would you rather have the judge spend 30 minutes studying each of your two best arguments, or only 12 minutes analyzing your two good arguments and the remaining 48 minutes analyzing your eight weak arguments?
Competence Wins Cases
We all want to be the litigator with the brilliant performance that dazzles the judge or jury and has courtroom observers buzzing. What I see from my new perspective is that brilliance is very hard to come by and attempted brilliance usually results in embarrassment (or worse). It is competence, rather than brilliance, that wins cases and earns the respect of the judge and jury. Having watched a number of lawyers try for brilliance and end up stumbling their way to defeat at the hands of their well-prepared opponents, I have learned that most lawyers should focus on the nuts and bolts of their case more than on how to steal the show with wit and skill.
Many Ways to Lose
A lot of lawyers spend their time and energy trying to guess the argument that is going to win their case, and then building their case around it. While it is obviously important to put together the most persuasive aspects of a case, what I now know is that it is equally important to avoid the things that can lose your case. And there are a lot more ways to lose a case than to win it.
If a book were written about the many ways to lose a case, here are a few likely chapter titles:
Forgetting about a key element of your case;
Failing to present key evidence;
Failing to anticipate a key evidentiary point;
Making a half-hearted argument on an important point;
Relying on a “general understanding” with other counsel on a key matter;
Freezing up (or napping) when an important objection needs to be made;
Failing to disclose important evidence until the last minute;
Assuming the judge will grant your last-minute continuance request;
Making a fatal concession;
Expecting the other side to settle at the last minute; and
Being afraid to stand up and make an argument on an important point.
All of these mistakes can be easily prevented, but they are difficult (or even impossible) to remedy. I have seen all of these mistakes with surprising frequency in the past year, and if I were litigating today, I would certainly spend considerable energy making sure they didn’t happen to me.
It is not as if any of the above thoughts are novel. As a litigator, I tried to follow all the things I have said a litigator should do. What I learned as a judge over the past year, however, is how easy it is for even experienced, diligent litigators (like I saw myself to be) to lose sight of some of the basic principles of effective advocacy. I wish I would have known as a litigator before I became a judge how easy it is to lose sight of those basic principles, and how I didn’t know as much as I thought I did.
JAY QUAM was appointed a Hennepin County District Court judge in July 2006. Prior to his appointment, he was a litigator for 17 years at Fredrikson & Byron. He graduated from the University of Minnesota Law School in 1988.