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Common Sense Rules of Advocacy for Lawyers

Rule 41  Newton's Rule

By Keith Evans The Author Reviews Sample Sections Details Formats Hardbound  $19.95 Softcover    $19.95 Ebook        $4.95

Let's return for a moment to what I just said. If you pay attention to the Sympathy Rule, you won't get into a confrontation with your factfinder. Most trial lawyers go barging into confrontations with the factfinder as a matter of course. They create them all the time:

"You can't convict my client, ladies and gentlemen!"
("Can't we now?" think the jury.)

"You couldn't possibly . . .," says the lawyer.
("Oh no?" say their faces.)

"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. You insist and they'll turn you down. Newton's Law of Motion isn't just a scientific law: it's an accurate description of human response as well. An action almost invariably produces its equal and opposite reaction, and it's one of the most important practical rules of persuasion and advocacy.

If you think intently about this, you will see how to avoid trouble. Instead of demanding, you invite. Instead of telling, you suggest. You don't insist they look at something: you suggest they might find it helpful if they did. You don't pull, you lead, and you lead gently. Stick and carrot has 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 the question of persuasion. Not only does Newton keep you out of trouble: it can be used to tremendous advantage.

"You probably won't feel that this is terribly important, ladies This isn't a subtle advocate's trick. It is a rule of human conduct. If you know and think about Newton's Rule, you'll relate to your factfinders far better, you won't offend them, and they'll listen far more willingly.

This is such an important rule that I feel it's worth giving you a slightly fuller illustration. Let's take a common situation that arises, again, in a criminal case--criminal cases often furnish the best illustrations. The line the defense are taking is that the police are telling a pack of lies and that all of their testimony is a fabrication. Macho trial lawyers normally slam into the jury in their final summations, telling them that the police were lying, the whole thing is a travesty, they can't convict, etc.

Do you know what the average juror feels when she hears that? The average juror has never had a brush with the law. The only time she had a real encounter with a police officer was when she got a ticket for a traffic offense she had committed, and, although he gave her a ticket, the officer was polite and even a bit regretful. To the average juror the police are the saviors, the people who protect. They are the good guys.

Tell the average jury that the police are the villains and you go against their belief system. It disturbs them: they don't want to think that. If you ignore Newton's Rule at this point you are likely to create a confrontation. But if you do think about Newton's Rule, you almost certainly avoid the danger. How about this as an illustration:

"Ladies and gentlemen, one unhappy thing about this case is that I've had to suggest the police have been deceiving us. Not a pretty idea, is it? Not something any of us want to admit, the thought that the police who look after this city of ours, who make it safe for us to sleep at night, might have among them officers who are willing to lie to judge and jury so as to get someone convicted, officers who are prepared to stretch and bend the law. We'd rather not think about it. Far easier to turn our backs on the possibility as we turn away from other unpleasant thoughts. Shall we do that? Shall we say, 'He's a police officer: he couldn't possibly have been lying!'? Or shall we look together, carefully, to see whether someone's been trying to pull the wool over our eyes?"

There's no risk of confrontation there. We haven't pushed once, we haven't pulled, and we haven't trampled on their natural prejudices. Far from it. We've adopted their prejudices as our own. We've been talking their language and they know it. We avoided all equal and opposite reactions until the end, and then we used them in our favor. "Shall we turn our backs on this possibility?" we asked. What can the jury silently reply to that except, "Of course not." "Shall we assume . . . ," brings an almost automatic equal and opposite: "No."

And we also suggested that someone may have been trying to pull the wool over their eyes. What is their reaction bound to be--"Well, they're not going to succeed!"

Think Newton. Let Newton become part of you. He'll keep you out of all kinds of trouble and make a real advocate out of you.

Did you notice another thing we were doing in that little illustration? We were placing ourselves firmly on the same side as the jury. It wasn't a case of advocate here and jury over there. It was a case of we, not you. Shall we assume? Shall we turn our backs on it? Were lies being told to us?

Common Sense Rules of Advocacy for Lawyers
By Keith Evans

Hardbound, $19.95 Hardbound: 264 pages  ISBN 10: 1587330059 ISBN 13: 978-1-58733-005-6 LCCN:  2003113147 OCLC: 56315474 Published 2004 Dimensions: 7.25 x 7.8 x 0.8 Weight: 1.2 pounds Plus shipping and handling (8% of order, $10 minimum). Discount for bookstores and classroom use. VA sales tax added when shipped to VA address.  Ships within 1 business day Special!  With each paid order of 25 copies or more the hardbound edition, you'll receive one free copy signed by the author, while supply lasts. Publication descriptions and Order form (17-page PDF)

Softcover, $19.95 Softcover: 194 pages  ISBN 10: 158733-185-3 ISBN 13: 978-1-58733-185-5 Published 2010 Dimensions: 6.1 x 9.1 x 0.6 Weight: 0.7 pounds Buy softcover from Amazon (opens in new window) Buy softcover from Barnes & Noble (opens in new window)

Also see

• Legal Spectator & More, by Jacob Stein

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