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Common Sense Rules of Advocacy for Lawyers

Rule 56  Show Them the Way Home

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

I had an attorney, Jim, telephone me some time ago. He had been to one of my seminars and he'd been musing over the rules. "You know," he said, "this is the practical rule. It subsumes all the others. As long as you remember to be likeable, Show Them the Way Home contains everything else. It's the supreme rule of advocacy."

I don't know if he's right. I don't know if you can say that about any one practical rule. I do agree there are half-a-dozen standing out from all the rest--Entertain Them, Tell Them a Story, The Sympathy Rule, The Honest Guide, Prepare Them, Newton's Rule--but can you pick just one rule and say it is more important than the others? I don't know. These fundamental rules are like the major branches of an oak tree. And I told him this. "Ah!" he said, "but Show Them the Way Home is the trunk of the tree itself!"

And in that sense, Jim was right. It is like the trunk of the tree out of which everything else ought to grow. Let me try to explain it.

Show Them the Way Home. What do we mean by "Home"? It's the verdict we are asking for, the goal we are aiming at, the objective, the only reason we are in court. Everything we have done has been done for this. All our preparation, all the depositions, all the interrogatories, all the research, all the motions. It's all been done in order to get that verdict. That's "Home."

Show them the "Way." What do we mean by the "Way"? This is the heart of it.

Your factfinder, whether judge or jury, arbitrator or referee, starts out as a stranger to your case. They come like travelers in a new land. Somewhere in this country is the city you want to take them to, the city called Verdict. You know their journey to that city could be a difficult one. If this weren't so, you wouldn't be in trial at all. And you have an opponent who wants to take them somewhere else altogether. Both of you are there, as the travelers arrive like tourists, wondering what kind of journey lies ahead of them, and from the outset you are like two tour operators in competition for these tourists.

The brilliant trial lawyer grabs all the tourists, there and then. He paints them a picture of an easy, enjoyable journey, through interesting countryside, over smooth, paved roads. He sells them his city as a place where they'll feel content to be, a place worth having arrived at, a place where they'll be so welcome, a place where they'll be more than just tourists, a place where they'll experience a new and exciting sensation: the pleasure of bringing right where before there was wrong.

And off they all go, with the other tour guide chasing along behind, desperately trying to catch up and never even coming close.

Many trial lawyers believe that a jury often decides on its verdict after it's heard the opening! The mind-set they get into at that point stays with them all the way through. Unless there is a catastrophe in the evidence, they never swerve. They choose the guided tour they prefer and stick with it. It happens. I've seen it done and I've done it myself. I've had it done to me.

The "Way" to that city has to be attractive and as smooth and easy as you can possibly make it. There are bound to be obstacles and difficulties and it is your job to know in advance what they are and where they are. Before the travelers arrive, you must have planned their journey so as to take them around the obstacles and so as to minimize the difficulties. Your tour must be designed to drive them through the countryside that will engage their interest and attention. The places where you give them a rest-break should be thought about with care, the route should be chosen so that a gentle stretch leads to a dramatic vista where they can ooh and ah before coming to another easy-going stage in the journey.

You can see what Jim meant when he said that Show Them the Way Home subsumes other practical rules. Entertain Them is in there. The Honest Guide and Be Likeable are obviously there as well. So is Preparation. Once you see what Show Them the Way Home is all about, it's obvious that it runs all the way through your advocacy.

But let's be specific. We can see the way it applies generally. Let's have a couple of examples of the rule in action.

Focus on two words: easy and difficult.

For the average human being, making decisions is difficult, far more difficult than the average attorney realizes. If you have any aspirations at all to being a trial lawyer you are, by nature, more decisive than the average citizen. Most people prefer to have their decisions made for them. If they are put on the rack of not knowing what to do for the best, they get agitated and distressed.

Your job is to remove their difficulties. Your task is to leave your jurors with a decision they don't really have to make at all--because it makes itself. You should be aiming to make it a foregone conclusion by the time they go off to deliberate their verdict. If you are doing it right, you should be striving, from first to last, to make it easy for the factfinder to decide in favor of your client.

It seems, doesn't it, as if I'm stating the obvious? Of course we should be striving to make it easy for our factfinder to come down on our side. But, again, it seems as if the average trial lawyer has never so much as thought about this. An illustration, again from a criminal case:

I once watched an English barrister make sure his client went to prison. It was at the sentencing stage of the case. His client had  pleaded guilty at the outset, but all the other defendants had made a fight of it and been acquitted by the jury. Because the judge had seen the real villains go free, he clearly felt sorry for the only guy who had admitted his guilt. The only difficulties in the "Way" to a very light and lenient sentence were, first, it was quite a serious offense, and second, the man had two previous convictions from several years before.

The defending advocate could have said something like this:

"Serious offense, Your Honor, and it comes on top of two convictions some time back. These matters may make it difficult for Your Honor to pass a moderate sentence. But I'm in Your Honor's hands. I wasn't here throughout the trial and Your Honor knows far better than I can what justice requires in this case."

That would have accomplished a number of things:

• It would have been a public acknowledgment, made on behalf of the defendant and in his presence, that his offense was a serious one.
• It would have been an acknowledgment of the fact that the defendant had a criminal record and that this wasn't something that could just be brushed aside.
• These acknowledgments would have removed a difficulty all judges face when wanting to be lenient--the risk that a light sentence will make it look as if the court didn't regard the offense as a serious one.
• These acknowledgments would have removed another difficulty. The court cannot ignore a defendant's criminal record. If a judge passes a light sentence, it can seem as if that record got overlooked. Either way the public might be disturbed.

But with the kind of words used in our hypothetical, we are placing ourselves firmly on the same side as the judge. By acknowledging the problems standing in the way of a lenient sentence, by voicing them in public, we remove the fear that anyone will think the offense wasn't serious. We remove the fear that anyone will think the criminal record got overlooked. Simply by telling the judge we know about his difficulties, we diminish those difficulties.

And did you notice the use of Newton's Rule? "These matters may make it difficult for Your Honor to pass a moderate sentence." What is the equal and opposite reaction to that? If he's inclined to be lenient--as this judge was--his reaction could well be, "Try me!" or, "Sure, but you watch how I handle it!"

But what did the barrister representing this guy actually do? He made the judge's difficulties worse. He stood up in public and airily told the court this wasn't a serious offense at all. It was unimportant. Then he told us that the defendant's previous criminal record could be completely ignored because it had all happened years ago. Then he said it all over again.

I remember watching the judge's face. At first he looked bewildered, then angry, then hardly able to control himself. He was one of the nicer judges and he clearly wanted to pass a lenient sentence. But if he had been lenient after that barrister's presentation, it would have looked like he was agreeing with the nonsense that had been said to him. He passed a sentence of two years' imprisonment. Had it not been for the lawyer, the defendant would have been let off on probation.

Not knowing Show Them the Way Home can lose cases that might otherwise have been won. I got the verdict in a civil trial once, not because I had a stronger case, but because my opponent broke the rule horribly. All the evidence was in and it was finely balanced. There had been six or seven witnesses on either side, and there wasn't much to choose between them. Since I was for the plaintiff, I was afraid I hadn't satisfied my burden of proof and I was getting ready for the verdict to go against me.

Then came a gift from the gods. My opponent in his closing argument told the judge--we had no jury--that all my witnesses had been lying. They had been trying to deceive the court. They were all dishonest.

Just think of the difficulties that placed in the way of the judge. If he gave the verdict to my opponent, it would appear he was agreeing with him. He took the view, as I did, that all the witnesses had been doing their best and there was no intentional misleading. Now he was being asked to brand these people as liars. In rushed Newton and the judge reacted accordingly. What had been a finely balanced case now tipped in my favor. In his judgment, His Honor specifically found that the plaintiff's witnesses had not been lying and that, indeed, he preferred their testimony to that of the other side. Case over.

These are two fairly blatant examples, I agree. Show Them the Way Home is usually a subtler thing altogether. And techniques as such aren't needed to put this practical rule into operation. If you focus on the necessity for doing everything you can to remove their difficulties, you'll almost certainly do it right. Take time out to sit and think about your factfinder's difficulties. Only then can you try to do something about them. There, anyway, is the trunk of the tree, the last of the practical rules I offer you--practical rules that apply to all advocacy. If you think about them, merely bear them in mind, your advocacy will almost inevitably be of a superior quality. And when it comes to the question of examining witnesses, you'll find you already know a great many do's and don'ts.
 

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)

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