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Keys to Effective Advocacy: Effective advocacy is a
product not only of training and experience but also of willingness
to reexamine experience, learn and relearn basic principles, and condition
one’s satisfaction on achieving results rather than a By
Judge Jay M. Quam
As a relative newcomer to the bench, I still
remember what it was like to litigate:
the pressure to win; the tough decisions; and the challenges
of managing clients and their expectations.
But a year on the bench hearing cases has given me a new perspective. I realize now that in the press of litigation
I lost sight of some of the lessons I had learned, and that there
was a lot I did not know. My
experience on the bench over the last year confirms that many lawyers
also lose sight of some of the important lessons of litigating cases,
or haven’t yet learned them. So, while my litigating experience is
still fresh in my mind, here are a few things I wish I would have
better understood and consistently followed as a lawyer. If Wishes Were Horses … Weak cases
don’t get stronger because you (or your clients) want them to. Trial lawyers are a bit like
yesterday’s gladiators, fighting to right any wrong and fearlessly
taking on the impossible. It is a great tradition, but also one that
can cloud one’s judgment. You know the situation I am talking about: your
initial reaction is that the case is weak. Spurred on by your creativity
and your desire to please your client, however, you develop a number
of arguments that you believe might prevail. The more you think about
these arguments, the more you convince yourself, and your client,
that you have a good chance to win. While you may win some of those cases, you will
lose most of them. The reason you will lose is because it is easy
to convince yourself and your client of your rightness, but much more
difficult to convince a judge or a jury. You can put lipstick on a
pig, but chances are the court will recognize that it is still a pig.
I see a lot of lawyers putting lipstick on pigs, with judges
and juries quickly seeing what is behind the lipstick. Litigators should objectively evaluate their
client’s case, candidly tell the client if the case is weak, and stick
with that judgment unless something changes to justify a more favorable
conclusion. A client with a weak case is not well-served by an ambiguous
or overly optimistic lawyer. It is in the nature of some clients to
see with remarkable clarity and receptiveness all that is good about
their case, but to be blind to the weaknesses. Indeed, some clients
will interpret their lawyer’s candor as an indication that their lawyer
is not a zealous advocate. Ironically, those clients who most need
a candid assessment of their case are the ones who most want someone to tell them they will win. Regrettably, sometimes lawyers give those clients
what they want instead of what they need. When a lawyer gives clients what they want instead
of what they need, it usually turns out badly for both. Though the
lawyer may retain the client and earn a fee by giving an overly optimistic
view of the case, the potential disappointment, anger, fee dispute,
and (sometimes) malpractice suit is too high a price to pay.
If the client replaces you with another lawyer willing to give
the client an unrealistically optimistic assessment of the case, you
should write it off as a stroke of good luck and move on. Preparation and Performance What a lawyer
does before stepping into the courtroom usually matters more than
what the lawyer does in the courtroom. It will not surprise you to learn that I see a fair
number of lawyers who are self-absorbed in the courtroom. You know
the ones: any time they have a major courtroom appearance, they focus
most of their attention on their own performance. In short, they want
to look good. They practice their arguments and their presentations,
and they hone their examinations, all with the mistaken idea that
the success of their case necessarily tracks the success of their
performance. As a litigator who loved being in the courtroom
I feel strange saying this, but effective courtroom advocacy is not
mainly about the lawyer’s courtroom performance. Though lawyers are
an essential part of the process and irreplaceable facilitators of
evidence in trial, the outcome is much more dependent upon the evidence,
and how it is presented to the decision maker by the witnesses.
No matter how well a lawyer prepares for and presents a direct examination,
the testimony is ineffective unless presented well by the witnesses.
Poorly prepared witnesses who are nervous about testifying can, and
often do, fatally harm a case. In contrast, well-prepared witnesses often bring
about a favorable result on the strength of their presentation. With
that perspective, a lawyer will recognize that limited time is better
spent preparing witnesses whose presentation is vital than polishing
the lawyer’s performance. Helping witnesses practice their direct
and cross-examinations, orienting them to the courtroom, helping them
review documents and deposition testimony, and helping them to be
comfortable and credible in the courtroom lay the groundwork for a
strong presentation. The same concept holds true when arguing a motion.
As a trial lawyer, I was careful and thoughtful about my briefs,
but I believed that my oral argument was equally (or more) important.
What I now know is that oral argument, at least at the district court
level, is generally far less influential than most litigators believe.
While there are cases where oral argument tips the balance one way
or the other, most decisions are made before the lawyers step into the courtroom, based on the lawyers’
briefs. Though you never want to treat oral argument as irrelevant—it
could affect the outcome, after all—it is critical to put together
the best brief you can, and to focus (what should be) a relatively
short oral argument on a few key issues. Presentation Counts How something is said is almost as important
as what is said. Many lawyers
seem to believe that their most important responsibility is to get
the information or argument before the judge or jury.
These lawyers trust the judge and jury to absorb the information
and analyze it thoroughly and accurately.
For example, a lawyer may read from a script when delivering
an argument, or offer deposition testimony in lieu of the real thing,
thinking that the information is there before the decision maker,
and that therefore the lawyer’s most important job is done. That cavalier approach to communication is a
mistake. Think of the last time you talked with someone who did not
make eye contact, spoke in a monotone, had distracting behavior such
as twirling a pen while speaking, or droned on about irrelevant or
redundant topics. How memorable was that conversation? How effective was that person’s message? Could you even concentrate on what the person
was saying? What happens to
your ability to listen when the person drones on for far too long
on irrelevant or redundant issues?
Unless you are far more skilled and patient than most, you
probably do not walk away from that conversation with much. The effect of poor communication skills is the
same in the courtroom. Unless
you deliver your presentation in a way that is easy to follow and
interesting to the judge or jury, much of what you are trying to communicate
will be lost, even though the judge or jury are trying their best
to absorb what you are presenting.
If you want your judge or jury to consider your evidence and
your arguments, you need to present them in a way that is easy for
the audience to understand. The techniques for accomplishing this are basic:
good eye contact; good conversational tone, pace, and inflection in
your voice; good posture; absence of physical and verbal distractions;
good organization; and brevity. You
will be appreciated, and possibly rewarded, for those efforts. Lead from Strength Weak arguments
dilute good ones. I will admit to having made this mistake. Sometimes I gave a judge or jury as many arguments
as possible in hopes that one of them would hit the mark. My experience
on the bench confirms that this is a common, if understandable, mistake.
The misguided thinking is that, since you do not know which
arguments the judge or jury will find persuasive, your client is best
served by giving as many arguments as possible from which to choose. What I now know is that the credibility of good
arguments is eroded by the incredibility of bad ones. It is not that
judges and juries are not capable of separating wheat from chaff,
but they wonder why an otherwise respectable, intelligent and credible
lawyer is giving them so much chaff. If the case is so good, the decision
maker’s thinking goes, why is it necessary to spend so much time and
effort on weak and unsupported arguments? It is easy for them to conclude
that the better arguments are not as strong as they seem.
Another reason to forgo your weaker arguments
and rely only on your best arguments is that judges and juries are
pretty astute. If you cannot win on your strong arguments, you are
almost certainly not going to win on your weak ones. Being conscientious
and responsible, though, judges and juries will look at each and every
argument you put forward. The problem for the lawyer putting forward
a smorgasbord of arguments is that judges and juries have a limited
amount of time to consider your case, and will likely allocate that
finite amount of time evenly among the arguments presented. Before you throw your weak-but-nonsanctionable
arguments into your next brief, ask yourself this: if the judge has
one hour to prepare, would you rather have the judge spend 30 minutes
studying each of your two best arguments, or only 12 minutes analyzing
your two good arguments and the remaining 48 minutes analyzing your
eight weak arguments? Competence Wins Cases We all want to be the litigator with the brilliant
performance that dazzles the judge or jury and has courtroom observers
buzzing. What I see from my new perspective is that brilliance is
very hard to come by and attempted brilliance usually results in embarrassment
(or worse). It is competence,
rather than brilliance, that wins cases and earns the respect of the
judge and jury. Having watched a number of lawyers try for brilliance
and end up stumbling their way to defeat at the hands of their well-prepared
opponents, I have learned that most lawyers should focus on the nuts
and bolts of their case more than on how to steal the show with wit
and skill. Many
Ways to Lose A lot of lawyers spend their time and energy
trying to guess the argument that is going to win their case, and
then building their case around it.
While it is obviously important to put together the most persuasive
aspects of a case, what I now know is that it is equally important
to avoid the things that can lose your case.
And there are a lot more ways to lose a case than to win it. If a book were written about the many ways to
lose a case, here are a few likely chapter titles:
All of these mistakes can be easily prevented,
but they are difficult (or even impossible) to remedy. I have seen all of these mistakes with surprising
frequency in the past year, and if I were litigating today, I would
certainly spend considerable energy making sure they didn’t happen
to me. Conclusion It is not as if any of the above thoughts are
novel. As a litigator, I tried to follow all the things I have said
a litigator should do. What
I learned as a judge over the past year, however, is how easy it is
for even experienced, diligent litigators (like I saw myself to be)
to lose sight of some of the basic principles of effective advocacy.
I wish I would have known as a litigator before I became a
judge how easy it is to lose sight of those basic principles, and
how I didn’t know as much as I thought I did. JAY QUAM was appointed a Hennepin County District Court judge in July 2006. Prior to his appointment, he was a litigator for 17 years at Fredrikson & Byron. He graduated from the University of Minnesota Law School in 1988. |
