- Excerpt
Common Sense Rules
of Advocacy for Lawyers
by Keith Evans
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!
A Brief on Being Brief
by Keith Evans
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.
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