The classic advocacy guide for trial lawyers, Common Sense Rules of Advocacy for Lawyers has been hailed by attorneys, mediators and professors nationwide. It's the practical advocacy guide designed for anyone who must persuade others including attorneys, lobbyists, negotiators, account executives, law students, sales professionals, and parents.
I wrote this book in the first place* as a kind of guidebook for young lawyers who had to do a trial in court. And I have been pleased over the years to hear from people who claimed they had won a verdict because they used one of the techniques I suggested. I have been told as well that these practical rules are as useful outside the courtroom as they are in it. And I do agree that if you have to make a presentation or negotiate a deal, these rules will undoubtedly help you.
But I don't want to re-write the book so as to point out that this or that rule is of particular importance in any kind of negotiation or alternative dispute resolution, or that an account executive making a pitch should pay special attention to this one or that one. You are intelligent enough to see how a rule lifts out of the courtroom and can be used in negotiations and presentations, and, indeed, in every kind of relationship. My second wife complained, "I wish you'd use your advocacy on me," and looking back on it I should have done.
And it is in the framework of a trial in court that the rules can be most easily explained. So although I have been persuaded to adopt a new title, what you are getting here is more or less the original advice for the brave young lawyers who dare to do a case in court. You'll find it quite funny in places, and you'll easily decide which rules you want to take with you into your daily life and into your work.
I think the central rule of this whole book is Newton's Rule, as I have called it. "You can't possibly convict my client on this evidence," says the lawyer, and although the jury don't move a muscle you can see them all thinking, "Oh no? You wanna bet?" Every action has its equal and opposite reaction, and this rule is working all the time when people are communicating or trying to communicate.
But we'll come to Newton's Rule, as we will to the Rule of the Honest Guide. When you've familiarized yourself with all the rules you'll even find it easier to fix a date.
If a new rule occurs to you and you are willing to share it, please get in touch and tell me about it. I can be contacted through my Publisher, Chug Roberts, at TheCapitol.Net, PO Box 25706, Alexandria, VA 22313-5706 www.TheCapitol.Net, 202-678-1600, and I very much look forward to seeing this collection added to.
Here, then, apart from the occasional footnote, is the book as it was designed for the lawyers. Enjoy - as they intransitively say in California.Keith Evans* This book was originally published in 1994 by West Publishing as "The Common Sense Rules of Trial Advocacy." The Foreword, edits and updating, and Appendix 3, "How to Succeed as a Lawyer," by Roland Boyd, are new to the 2004 edition. From the Foreword
Summary of Contents
Ch. 1 Introduction
Ch. 2 The Dimensions of Advocacy
Ch. 3 The Mandatory Rules of Advocacy
Ch. 4 Advocacy as Theater
Ch. 5 The Psychology of Advocacy
Ch. 6 The Examination of Witnesses
Ch. 7 Direct Examination
Ch. 8 Cross-Examination
Ch. 9 Re-Direct Examination
Ch. 10 The Final Argument
Ch. 11 Written Advocacy
Ch. 12 Advocacy in the Age of High Technology
Ch. 13 Conclusion
Table of Contents
Chapter 1 Introduction
Chapter 2 The Dimensions of Advocacy
First Dimension: In the Common Law Countries a Trial is Not an Exercise Designed to Discover the Truth
Second Dimension: Human Beings are Far More Video Than Audio
Rule 1 You Must Dress Appropriately
Rule 2 Don't Be Seen to Be in To Friendly a Relationship With Your Opponent
Rule 3 Don't Smile, Laugh or Joke Without Including the Jury In
Rule 4 Appear at All Times to Be Absolutely Sincere
Rule 5 Never Convey Any Visual Signal You Do Not Intend to Convey
Rule 6 Ensure That Your Factfinder Always Has Something to Look at
Rule 7 Use All Kinds of Visual Aids
Rule 8 Maintain Eye Contact With the Factfinder
Third Dimension: People Don't Like Lawyers!
Rule 9 Stick Rigorously to the Truth
Rule 10 Don't Appear to Be Manipulative
Rule 11 Don't Sound Like a Lawyer
Fourth Dimension: Time is Valuable
Rule 12 Don't Repeat Yourself
Chapter 3 The Mandatory Rules of Advocacy
Rule 13 Mandatory Rule Number One: In Your Opening Statement Avoid All Argument and Stick Strictly to Facts
Rule 14 Mandatory Rule Number Two: Be Sure, in Your Opening Statement, to State Enough Facts to Justify the Verdict You Are Asking for
Rule 15 Mandatory Rule Number Three: The Advocate Must Not Express His or Her Opinion in Court
Rule 16 Mandatory Rule Number Four: As an Advocate, Never Give or Appear to Give Evidence Yourself
Rule 17 Mandatory Rule Number Five: Never refer to the Criminal Record of an Accused Person or to Any Offers of Settlement
Rule 18 Mandatory Rule Number Six: Never Put Words in the Mouths of Your Own Witness
Rule 19 Mandatory Rule Number Seven: In Your Closing Argument Speak Only of Things That Have Been Touched Upon in the Evidence
Chapter 4 Advocacy as Theater
Rule 20 Commit to Being an Excellent Trial Lawyer Don't Do Anything by Halves If You Can't Dedicate Yourself to This, Move Over and Do Something Else
Rule 21 Entertain Them
Rule 22 Tell Them a Story
Rule 23 Think Beginning, Middle and End
Rule 24 Always Aim to Maintain Your Continuity
Rule 25 Keep It Simple
Rule 26 Avoid Detail
Rule 27 Work at Eliminating Everything That Can Safely Be Eliminated
Rule 28 Be Brief
Rule 29 Prepare Them for the Boring Bits
Rule 30 Know Your Audibility
Rule 31 Vary Your Pace and Vary Your Tone
Rule 32 Be Aware of Timing and Use the Power of the Pause
Rule 33 Be Vary Careful About Raising Your Voice
Rule 34 Stay Out of the Well
Rule 35 Don't Get Too Close to the Jury Box
Rule 36 Beware of Getting Too Close to the Witness
Rule 37 Plan Your Approach to the Witness Stand
Chapter 5 The Psychology of Advocacy
Rule 38 The Materials of Advocacy Are Fragile
Rule 39 Be Likeable
Rule 40 Aim to Create Sympathy Between You and Your Factfinder
Rule 41 Newton's Rule
Rule 42 Include the Factfinder in! or the Rule of the First Person Plural
Rule 43 Prepare Them
Rule 44 Always Aim to Be the Honest Guide
Rule 45 Don't Ask the Factfinder to Believe the Unbelievable
Rule 46 When There Is a Weak Point in Your Case Don't Pretend That It Isn't a Weak Point
Rule 47 Don't Misquote the Evidence in any Way at All and Don't Put a Slick Interpretation on Any Part of It
Rule 48 Make Sure That You Always Come Across as Being Absolutely Fair
Rule 49 Keep Your Objections to a Minimum
Rule 50 Take Great Care Getting Your Jury Out of Court for Bench Conferences
Rule 51 Demonstrate Your Competence to Your Judge as Early as Possible
Rule 52 Practice Listening Intently
Rule 53 Stop Dead in Your Tracks as Soon as You Realize Your Sentence Has Become Too Complicated
Rule 54 There Must Be an Overall Theme to Your Entire Case and You Should Be Able to Tell the Story in One Compact Sentence
Rule 55.1 First Part: As Soon as You Have an Approximate Idea of What a New Case is About Sit Down and Write Your Closing Argument
Rule 55.2 Second Part: Sit Down and Write Your Opponent's Closing Argument
Rule 55.3 Third Part: Sit Down and Perfect Your Closing Argument
Rule 56 Show Them the Way Home
Chapter 6 The Examination of Witnesses
Rule 57 Think Out in Advance the Answer You Want to Hear and Design Your Questions With a View to Getting That Answer
Think Control--Know What You Want the Witnesses to Say Then Make Them Say It
Rule 58 Every Examination Should Consist of a Series of Objectives
Rule 59 Never Forget That the Average Witness Speaks From Memory
Rule 60 Never Forget You Are Not Dealing With Facts but With What the Witness Believes to Be Facts
Rule 61 Go Gently When You Attack a Witness's Recollection
Rule 62 Never Turn to a Witness for Help
Rule 63 The One Line of Transcript Rule
Rule 64 Don't Ask Compound Questions
Rule 65 Use Variety in the Format of Your Questions
Rule 66 Beware of Demanding the Yes or No Answer
Chapter 7 Direct Examination
The Rule About Leading Questions
Rule 67 The Foundation Rule: Before You May Ask a Witness to Testify on any Topic, You Must Lay a Foundation Showing How the Witness Has Acquired Knowledge of That Topic
Rule 68 In Direct Examination, Remember the Rule of Two and Couple Your Questions Wherever You Can
Getting Documents into Evidence
Chapter 8 Cross-Examination
Rule 28 Be as Brief as You Can Be
Rule 69 Stop When You Get What You Want
Rule 70 Use Leading Questions in Cross-Examination
Rule 71 Pin Down the Witness: Don't Spring the Trap Until the Witness is Inside
Rule 72 Keep the Record as Favorable to You as Possible by Moving to Strike Any Inadmissible Evidence
Rule 73 Ride the Bumps: Keep Your Dismay a Secret
Rule 74 The Minefield Rule: Never Jump Back in Alarm!
Rule 75 Don't Cross-Examine at All Unless You Have to
Rule 76 Don't Go Fishing
Rule 77 Don't Ask Questions to Which You Don't Know the Answer
Rule 78 Never Ask "Why?" and Never Ask "How?"
Rule 79 Don't Open the Door
Rule 80 Don't Let the Witness Repeat Her Direct Testimony
Rule 81 Don't Ever Get Into an Argument With a Witness
Rule 82 Don't Ask the Fatal Final Question
Chapter 9 Re-Direct Examination
Salvage, Clarification, and Massacre
Rule 83 If You Don't Do Re-Direct Well It's Better You Don't Do It at All
Re-Direct Must Be Done Confidently and Effortlessly
Chapter 10 The Final Argument
Rule 84 It's The Factfinder's Emotion, Not Yours, That Matters
Rule 85 Emotion Follows Facts and Not the Other Way Around
Rule 86 Too Little Emotion is Fatal: Too Much Emotion is Fatal
Rule 87 Acknowledge the Feelings That Have Understandably Been Stirred Up
Chapter 11 Written Advocacy
Paper Is the Basic Material Used for Written Communication and the Dissemination of Information
Rule 88 Lawyers Use Far Too Much Paper
Rule 89 Good Legal Writing is Easy to Read and Interesting, Accomplishing Its Goal in as Few Words as Possible
The "Body Language" of a Document
Rule 90 The Appearance of Your Document is Vitally Important
Rule 91 White Space is User Friendly
Rule 92 Don't Produce a Paragraph Deeper than Four Inches
Rule 93 Margins Have an Effect on the Reader
Rule 94 Lists of More Than Three Items Should Be Vertical Not Horizontal
Rule 95 Use Headings
Rule 96 Consider Incorporating Diagrams into Your Writing
Pace and Movement
Rule 97 Write at the Pace of a Brisk Walk
Rule 98 Pay Great Respect to Chronology in Your Writing
Paper Is the Basic Material Used for Written Communication and the Dissemination of Information
Rule 99 There's No Rule of Court Which Requires Your Document to Be a Minimum Length
Chapter 12 Advocacy in the Age of High Technology
Rule 100 Stay Abreast of Technological Advance
Chapter 13 Conclusion
Appendix 1: Why Color Is Critical
Appendix 2: The Practical Rules at a Glance
Appendix 3: "How to Succeed as a Lawyer," by Roland Boyd
KEITH EVANS was a 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 handled several hundred jury trials and practiced in State and Federal Courts as well as, in England, every court from the Old Bailey to the House of Lords.
The holder of an Outstanding Trial Lawyer award from the San Diego Trial Lawyer's Association, he was 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 was a visiting professor at an American university law school and on the faculty of NITA.
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.
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"Reading this book would profit any advocate of any experience level. Judicious application of the advice contained in the book will make anyone a better advocate."
-- George R. (Bob) Dekle, Legal Skills Professor, University of Florida, Retired Assistant State Attorney, Third Judicial Circuit of Florida (successfully prosecuted Ted Bundy)
"I can't think of one more effective single thing WSBA could do to advance its skills training goals than to give a copy of CSRA to every newly admitted member. ... CSRA is my desert-island book. And when another lawyer washes ashore, as in a New Yorker cartoon, I'll be ready. Buy this book."
-- Lindsay Thompson, Washington State Bar Association (WSBA) Litigation Law Section Newsletter, Fall 2004
"The rules presented are sound and the book is easy to read. It is conducive to being read in short increments, as might well be the case for a busy trial lawyer or for one using it to brush up. I recommend that trial lawyers have this book on their shelves for use as a refresher, in preparation for a trial, or as the basis for daily reflection on trial advocacy."
-- Jason Hanson, Wisconsin Lawyer, September 2004 (click for full review)
"Keith Evans, the author of Common Sense Rules of Advocacy for Lawyers, is an experienced trial lawyer. He has studied the game from the inside and he has seen things others have missed. He has distilled his experience and offers it up in the brisk aphoristic style that brought him his success in the courtroom. 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
"This is a terrific guidebook that should be followed by all young trial lawyers. While it is true that these rules are based upon common sense and that most seasoned trial lawyers will figure them out over time, this book will allow young advocates to benefit from all the painful lessons learned by inexperienced lawyers before them."
-- Philip H. Corboy, Corboy & Demetrio, Chicago, IL
"Down to earth advice for the advocate. Keith Evans' book provides important, down-to-earth advice and guidance for both the novice and experienced advocate. Having adjudicated many, many cases, I wish every advocate would review these practical rules for effective advocacy. All advocates will benefit from this helpful book."
-- Jay Grenig, Arbitrator
"Common Sense Rules Of Advocacy For Lawyers is a welcome contribution to professional and law school libraries, and an invaluable candidate for use as a principle curriculum textbook, or at the very least, an important addition to a law student's supplemental reading list."
-- Midwest Book Review
"Common Sense Rules of Advocacy for Lawyers is a superb how-to book for the trial lawyer. The author, Keith Evans, walks the reader through the essentials of effective trial advocacy, teaching every step of the way while at the same time never sounding the slightest bit like a lecturer. 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. The author never loses sight of the underlying rules of evidence, procedure, and ethics, but his real genius is translating those rules into -- as the title says -- common sense rules of advocacy. 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!"
-- Browne Greene, Greene, Broillet, Panish & Wheeler, Santa Monica, CA
"Not just for lawyers! Common Sense Rules of Advocacy for Lawyers contains valuable insights and practical lessons for anyone who advocates for a living, including mediators, facilitators, and others who may not readily admit to practicing the subtle art of advocacy. Lawyers advocating in ADR settings will also greatly benefit from Keith Evans' book, which is why I recommend it in my Alternative Dispute Resolution course at the University of Colorado School of Law."
-- Steve Clymer, JD, mediator, arbitrator, and facilitator with ACCORD Dispute Resolution Services, Inc.
"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)
"Keith Evans' Common Sense Rules of Advocacy for Lawyers is a delightful and valuable read for trial lawyers and teachers of every level of experience. For the novice, it is like having a seasoned veteran of the courtroom wars as a mentor. It is full of sound advice and useful examples. Barrister Evans will help the greenest litigator look and act competently before a jury. For old war horses and trial advocacy teachers, Evans' list of rules is a valuable checklist of "DO's" and "DON'T's" reminders. Even the most experienced trial lawyer can pick up some new techniques here. I will heartily recommend it to my Trial Advocacy students."
-- Frederick C. Moss, Professor, Dedman School of Law, Southern Methodist University
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