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Common Sense Rules of Advocacy for Lawyers
Rule 56 Show Them the Way Home
| Rule 56 Show Them the Way Home |
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
$35
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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
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Last updated:
May 07, 2008
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