Back to Basics: the Golden Rules of Advocacy

Introduction

This is a book recommendation:

Some 30 years ago, I bought a book with a promising title: "The Golden Rules of Advocacy", authored by Keith Evans (Oxford University Press, 1993).

Little did I know then how much this concise guide would assist me, over the next two decades, in honing my courtroom skills.

I recently read Evans' page-turner once again and was surprised how well the book has stood the test of time. While focusing on advocacy before common-law courts, it offers a wealth of advice also for civil-law practitioners and arbitration counsel.

Here are some of my favorite takeaways. If you follow them as counsel, I guarantee that you will greatly improve your chances of persuading the judge - or the arbitral tribunal - to find in your favor:

A trial is not about the truth - but persuasion

• A trial is not an exercise to discover the truth. What we are doing as advocates is trying to get the factfinder to arrive at an opinion in our favor. Therefore, you should be putting on a presentation designed to persuade.
• Of course, there's also a search for truth going on in a trial, but it's not the main objective. Watching and listening to the witnesses, the factfinder is bound to be on the lookout for the liar. But trials usually end up without any liars being unmasked. What the factfinders normally have to do is decide which parts of the evidence they prefer. A counsel's job is to lead his or her factfinder to a preference and thus an opinion.
• This does not mean you have a license to be dishonest. To the contrary:

Sincerity pays off

• Always stick rigorously to the truth. Search for the way in which you can present your case in total sincerity. Don't put a slick interpretation on the law or evidence as judges have an incredible nose for insincerity. If you don't believe what you are asking them to believe, then make no mistake about it: they will know.
• One cannot overstate this: you should appear at all times to be absolutely sincere. Fail in this - even one time - and you undermine your chances for the rest of the case. Once sincerity is lost in the eyes of the tribunal, it can very rarely be regained.

Appearances count

• Winning in a court or arbitration is not just about presenting a compelling legal case. Appearances count too - and far more than most advocates are willing to admit. Consider the following:
• The human animal is far more video than audio. People who have studied the psychology of communications have some terrifying statistics for counsel. Examples: (i) 60 per cent of the message is conveyed by body language and visual appearance generally. (ii) 30 per cent of the message is conveyed by the tone of voice. (iii) Only 10 per cent of the message comes through the words used. Therefore:
• Never convey any visual signal you do not intend to convey. This means you must never seem surprised unless you intend to, you must never seem troubled unless you intend to, and you must never seem to be expending effort unless you intend to.
• Ensure that your factfinder always has something to look at. People listen far more intently if they have something to look at connected with what they are hearing, and they remember up to five times as much. So if you can get a video into court, get one. If you can get a model of some sort, get one of those too - particularly models that come apart. Always give your factfinders something to look at.
• Equally important, to cultivate credibility, you should maintain eye contact with the factfinder. But don't overdo it: the regular glance is enough, resting on your factfinder's eyes long enough not to seem shifty, and briefly enough not to seem threatening or intrusive. You not only stay in touch this way but also get valuable feedback from which you can gauge how you are doing.
• Finally, do dress appropriately. Before some tribunals, the lawyer who wears polyester has the burden of proof.

The Sympathy Rule

• Judges and arbitrators are human beings too, with all the related psychological biases and predilections. Among other things, they have a disturbing tendency to find in favor of the attorney they like. Therefore:
• Be likeable. At least be more likeable than your opponent. Coming across as utterly real and genuinely nice works wonders in a courtroom. Apart from anything else, it tends to be so different from the norm that the factfinder cannot help but notice and respond accordingly.
• If you are likeable, affable and kind, you will evoke all your factfinders' nicest feelings: (i) They will listen to you willingly. (ii) They will put the kindest interpretation on what you say. (iii) They will feel reluctant to deny you what you ask. (iv) They will feel inclined to overlook your mistakes.
• It need hardly be said that a sympathetic judge is better for your case than the other kind. So how to go about getting the factfinder to sympathize with you? Try the following mental game: Imagine yourself into the judge's skin; get behind his or her eyes. This simple exercise puts you in far greater sympathy with the factfinders and, somehow, they are subconsciously aware of it. The result is that they give sympathy back to you.
• Moreover, this technique prevents you from making all sorts of mistakes. You won't say or do things that upset your factfinders. And you avoid being dragged into a confrontation with them (as so many lawyers do, at their peril). All in all, you'll have a much smoother ride with the very persons who will ultimately judge the merits of a dispute. That's no small achievement.

Newton's Rule

• Sadly, many advocates seem to forget the previous point as soon as they walk into a courtroom. Indeed, most attorneys go barging into confrontations with the factfinder as a matter of course. "You couldn't possibly...", says the lawyer. ("Can't we now?" thinks the judge.) "You will have to..." ("Will we, now?")
• The rule is simple: You push, and they'll push back. You pull, and they'll resist. You demand, and they'll refuse you. Newton's law of motion isn't just a scientific law: it's an accurate description of human response as well. An action invariably produces its equal and opposite reaction, and it's one of the most important Golden Rules of Advocacy.
• Fortunately, there's an easy way to avoid the trouble. Instead of demanding, you invite. Instead of telling, you suggest. You don't pull, you lead, and you lead gently. Stick and carrot have no place in advocacy; it's exclusively carrot.
• The more you think about Newton's Rule, the better advocate you become. It is the most important rule of all when it comes to persuasion. "You probably won't feel that this is terribly important", says counsel, and the factfinders' attention is caught immediately. And if you say something like "'I'm sorry, I am not putting this clearly", you'll almost certainly get an unspoken response: "No, go on, we understand you perfectly".
• This isn't a subtle courtroom trick: it's a rule of human behavior. If you know how to apply it, you'll relate to your factfinders much better, you won't offend them, and they'll listen to you far more willingly and carefully.

Don't overlook the importance of preparation

• That said, a successful case strategy is not only about appearances in a courtroom. Winning invariably requires thorough preparation too.
• The rewards of intensive preparation are guaranteed. While you may not prevail in each and every case, you will impress your judge or arbitrators from first to last. And slowly but surely, you will gain that reputation of a conscientious advocate always ready to go the extra mile.
• When asked what the single most important thing is about advocacy, judges typically say: "Preparation!" It's the best investment there is: obvious preparation, leading to a meticulous knowledge of the case file, shines all the way through and commands respect without exception. There's no substitute for it. And rest assured: the lack of preparation is always found out.

Too much detail is dangerous

• One of the surest signs of an inept counsel is that he loads down his factfinder with far too much detail.
• To some extent, this is understandable and has to do with our education as lawyers: we are brainwashed into feeling guilty if we don't give sufficient detail. And we are frightened of leaving out some essential element. But these are impulses you must recognize and control, because detail is dangerous to good advocacy.
• You see it again and again, and you see a glazed look come over the factfinders. If you overload them, they won't understand, they won't listen and they will resent you for that.
• Instead, the key to a successful case strategy is to focus and be selective. To give the decision makers everything is to give them very little.

The beauty of brevity

• This point is closely related to the previous one: by displaying the ability to focus on the issues that are truly outcome-determinative, you strike as someone who's efficient and appreciates the value of time. In fact:
• At all times, you should be conscious of time. Because it's precious. If you ever give your factfinders 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.
• There's an additional reason to be as brief as you can in cross-examination, especially with a witness who has been slanting his evidence. When you stand up to cross-examine, the witness is almost bound to be wary of you for the simple reason that he doesn't know how much you know and what you might have up your sleeve. But most witnesses become more effective the longer you cross-examine them; the longer you go on without hurting the witness, the more confident he's going to get, and the more confident he gets, the less easy he is to control. So be brief and be done with it.
• There's also a human tendency that will often push counsel into wasting time: 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. This fear is so understandable, we've all suffered from it and know the pressure. Don't yield to it.
• Finally, it's a good practice to let your factfinders know that you are aware of the value of expeditiousness. Every now and then in the course of a hearing, drop in a phrase along the lines of "I want to deal with this as briefly as I can", "I don't want to take any more of your time on that point", "Let me move quickly to something else", and so forth. You don't have to use these particular phrases; anything similar will do. Just make sure that you get across to the factfinders that you know the importance of their time. You will warm their hearts and foster sympathy.

Final remarks

The above is just a brief summary of my favorite takeaways from "The Golden Rules of Advocacy". There's much more for an avid reader to digest, learn and enjoy. In short:

A must-read for any advocate, Evans' book offers a cornucopia of wisdom that will help improve your courtroom skills and persuade the tribunal to find in your favor. It definitely made me a better trial lawyer and arbitration counsel (and, ultimately, a better independent arbitrator too). Go read it and find out for yourself.