Irving Younger, the renowned lecturer and professor at Cornell Law School, distilled all the essentials of cross-examination into his Ten Commandments of Cross-Examination. Here are Ten Commandments of Pretrial and Trial Advocacy. As Younger would probably have said, “Violate any of these Commandments and you will regret it instantly and punishment will be immediate.” You can read the full description of the commandments in greater depth along with illustrations and more in Pretrial Advocacy: Planning, Analysis and Strategy and Trial Advocacy: Planning, Analysis and Strategy.
First Commandment: What is the core principle of effective communication for any advocate? Is it eloquence? Eloquence is important, but some lawyers are so eloquent that the audience can’t follow the speaker. Is it logic? You have probably made what you believed, and probably was, a perfectly logical argument, but it didn’t carry the day. Is it good looks? You may be quite good looking, but I’ve seen some pretty goofy-looking lawyers who were great communicators.
The First Commandment—Be sincere and project sincerity. A trial lawyer who projects sincerity is in effect an unsworn witness who is informing the audience—the jury, the judge, the mediator—that the lawyer has looked at the case from all sides and is convinced that she or he is telling the truth. While a lawyer in trial cannot ethically express a personal opinion, there is no prohibition against being sincere. If you are not sincere in your belief in yourself and the case, they will know it. As John Stephono put it in an article on “Body Language and Persuasion:”
If on the other hand, you do not know what you are doing or do not believe in it, or you are afraid of revealing what you feel, your body and your voice will betray you, no matter how you attempt to manipulate them.”
A sincere belief in your case and yourself is essential, and if you have it, projecting it will come naturally. However, what if you don’t have such a belief? French diplomat Jean Giraudoux (1882-1944) has been credited with saying: “The secret of success is sincerity. Once you can fake that you’ve got it made.” Most of us can’t do that; it’s best to do only what you believe in.
Second Commandment—Be courteous. I routinely ask law students in the trial advocacy course: “When you are in trial, to whom do you need to be courteous?” The first response is always: “The judge.” The follow-up question is: “Anyone else?” Then, I may get a response that the trial lawyer should be courteous to opposing counsel. “Yes,” I’ll say, “and be courteous even when you wish earth will open and swallow opposing counsel alive.”
Seldom do the students get around to the very important folks—the lower bench: bailiff, clerk, and court reporter. They are watching and listening to counsel at all times, before court commences in the morning, during recesses and at other times. These are the very people who communicate to the judge concerning whom counsel really are and how they behave. If a lawyer is unpleasant with the lower bench, the judge will hear about it. How a trial lawyer treats the lower bench can yield untold dividends. The jury is always watching what goes on in the courtroom. When counsel asks the clerk to mark an exhibit, and the clerk, who has been befriended by counsel, smiles at counsel, the jury sees that counsel could be a very decent person.
Third Commandment—Be brief. Trial judges are busy people with heavy dockets and plenty to read. They are doing the business of meting out justice and don’t have time to waste. Therefore, when you are writing for a judge, whether it is a trial brief, a motion or response or whatever, bear that in mind. Cull out all excess. Put your main points right up front. Forget footnotes. If it is worth saying, put it in the brief, if it isn’t, don’t put it in a footnote or anywhere in the brief.
Fourth Commandment—Let pattern jury instructions be your guide. From the beginning when you are analyzing the case and formulating a case theory to the end when you are crafting and delivering closing argument, pattern jury instructions are invaluable. It is important to keep in mind that because the instructions have been composed by a committee composed of respected lawyers and judges, they are likely to be the law that will govern the case and all the law the jurors will ever know.
How can the pattern instructions provide guidance? At the outset, when you are trying to determine what your legal theory might be, pattern jury instructions provide a catalogue of potential legal theories for you to consider. If you are drafting a complaint or counterclaim, they can provide the framework. When you are planning discovery requests or outlining what to cover during a deposition, pattern jury instructions are instructive. On direct examination you can couch your questions in the language of an instruction that is likely to be read by the judge, and later in summation you can remind the jury of the witness’s words that are identical to the instruction’s wording. And, ultimately, during closing, you will apply the law in those instruction to the evidence or lack of evidence.
Fifth Commandment: After every trial, an Oregon judge used to ask jurors what they liked least about the trial experience. Uniformly, they responded: Bench conferences. Why? How would you like it if you had to sit idly by while the judge and lawyers across the courtroom at the bench are whispering about whether you should hear something?
The Fifth Commandment—Be open and fair. In trial, you want to be open, candid, and not appear to be concealing anything. If counsel appears to be hiding something, the jurors are not likely to give the lawyer their full trust. Several steps can be taken to accomplish this. First, to avoid trial objections and bench conferences to the extent possible, make motions in limine to exclude the objectionable evidence. Second, take the sting out. If some information will damage your case and it cannot be kept out of evidence with a motion in limine, concede it, even own it. When is it the best time to disclose the harmful information? As soon as possible, and that is during jury selection when you can lay it out for the prospective jurors and ask them whether, given the information, they can still consider the law and all of the evidence and decide the case fairly and impartially. During opening statement, mention the damaging information. It can be buried in the midst of your opening, but don’t neglect to cover it, thus barring opposing counsel from pointing out not only the harmful information but also that you didn’t reveal it. Third, throughout the trial, you can appear open—open with your gestures, open faced, your counsel table not piled with files and so on.
Sixth Commandment—Be a storyteller. People want a story. Your audience—jury, judge, mediator—want a story. Our history is a history of storytelling. We pass on our culture with storytelling. Our stories are told online, in newspapers, in plays, in movies—all storytelling.
How important are stories? You may remember the movie The Amistad. The Amistad was a slave ship traveling from Cuba to the United States in 1831. The slaves revolted and took over the ship and told the crew to take them back to Africa. Instead, they sailed up the coast of America, and the slaves again were taken captive. There was a legal battle over who owned the slaves or whether they were free to go. A scene in the movie involves an abolitionist coming to see John Quincy Adams the former President of the United States who was a lawyer. He sought Adams advice. What he got is at the heart of the Sixth Commandment. Adams says, “When I was an attorney long time ago, I realized after much trial and error, whoever tells the best story wins.” Adams then goes on to teach the abolitionist that it must be a human story.
How to construct a good story is neither a Commandment nor brief enough to cover here. Rather, how to develop a persuasive story is discussed at length in Trial Advocacy: Planning, Analysis, and Strategy.
Seventh Commandment—Have a good reputation. Courthouses, big or small, have channels of communication. No matter how big the courthouse is, if you are a trial lawyer and have appeared in a courtroom, word will get around about you. Judges talk to each other about the lawyers who appear before them. Courtroom staff talk to each other and the judges. You will have a reputation.
You want that reputation to be a good one. A good reputation is like a life preserver. Trial can be like a rough sea, and that good-reputation life preserver can bouy you up when the sea gets rough. If you make an objection and the judge has heard that you are known to be a good trial lawyer who knows evidence law, you can be assured that the judge will seriously consider your objection. A lawyer with a bad reputation is likely to have their trial work scrutinized by the judge. Once a lawyer has acquired a bad reputation, it is difficult to shed it.
Eighth Commandment—Be better prepared. David Boies, renown trial lawyer, credits his trial successes to preparation as follows: “Well, I will outwork the other side every single time. At the start of every trial, the other side starts out working as hard as I do. But at some point, they say, ‘I’m going to go out with my girlfriend,’ or spouse, go to the opera, go see the latest movie. And at every trial I’ve ever had, the other side stops working as hard as me—if they ever did, sometimes they never do.” He also expressed it this way: “It’s a matter of priorities. Do you want to win, or would you like to sleep? Do you want to win, or would you like to take a day off?”
Ninth Commandment: Jim McElhaney, who for decades wrote a column for the American Bar Journal, wrote: “Law school is as much obscure vocabulary training as it is legal reasoning. At its best, it can teach close thought and precise expression. But too often law school is reverse Hogwarts – where Harry Potter trained to be a wizard – that secretly implants into its students the power to confuse other people instead of sowing the magic seeds of clarity and simplicity. . .” McElhaney’s successor in the job of writing columns for the Journal, expressed a similar sentiment as follows: “While lawyers are the most highly paid rhetoricians in the world, we’re among the most inept wielders of words. Stop and think about that. The blame goes primarily to law schools.”
Ninth Commandment—Be plain and simple. McElhaney gave lawyers this advice: “Because we are professional communicators, it is our obligation to be plain and simple. It’s not our readers’ and listeners’ jobs to try to understand us.”
Most of the folks we come in contact with when practicing law, never went to law school. What they know about trial came from television, movies and books. Don’t speak to them like they are lawyers. We must drop legal jargon. Use examples that the person can relate to. Focus on what the person—jurors, client, witness, whomever—and speak and write in plain and simple language that can be easily understood.
Tenth Commandment: Be diligent and prompt. Law school teaches some bad habits. Not just how to speak and write in plain and simple language. It also teaches procrastination. For most law school courses, the student’s grade is mostly determined by a final examination. Sometimes, the course will have a midterm examination. This can lead to procrastination and cramming at the end of the course.
This pattern of procrastination can continue once the student passes the bar and goes out into practice. When lawyers open the bar news, where do they turn first? To the back to see who has been suspended or disbarred. What is one of the main reasons for sanctions? Yes, Rule of Professional Conduct 1.3: “A lawyer shall act with reasonable diligence and promptness in representing a client.”
Short of sanctions, procrastination can lead to a lawyer gaining a bad reputation. The lawyer is always seeking extensions. Work piles up on the lawyer’s desk. The lawyer misses deadlines. Strategies that can be used to ensure that work is completed on time are the usual time management tools, such as setting a deadline before the deadline the court sets so that you can deal with the unexpected happening. On the other hand, the lawyer who is diligent and gets work done on time, is one who acquires a good reputation.