Friday, May 15, 2020


Irving Younger, the renowned lecturer and professor at Cornell Law School, distilled all the essentials of cross-examination into his Ten Commandments of Cross-Examination that you can watch here. Here are Ten Commandments of Pretrial and Trial Advocacy. As Younger would probably have said, “Violate any of these Commandments and you will regret it instantly and punishment will be immediate.” You can read the full description of the Commandments in greater depth along with illustrations and more in Pretrial Advocacy: Planning, Analysis and Strategy and Trial Advocacy: Planning, Analysis and Strategy.

First Commandment: What is the core principle of effective communication for any advocate? Is it eloquence? Eloquence is important, but some lawyers are so eloquent that the audience can’t follow the speaker. Is it logic? You have probably made what you believed, and probably was, a perfectly logical argument, but it didn’t carry the day. Is it good looks? You may be quite good looking, but I’ve seen some  pretty goofy-looking lawyers who were great communicators.

The First Commandment—Be sincere and project sincerity. A trial lawyer who projects sincerity is in effect an unsworn witness who is informing the audience—the jury, the judge, the mediator—that the lawyer has looked at the case from all sides and is convinced that she or he is telling the truth. While a lawyer in trial cannot ethically express a personal opinion, there is no  prohibition against being sincere. If you are not sincere in your belief in yourself and the case, they will know it. As John Stephono put it in an article on “Body Language and Persuasion:”

            If on the other hand, you do not know what you are doing or do not believe in it, or you   are afraid of revealing what you feel, your body and your voice will betray you, no matter how you attempt to manipulate them.”

A sincere belief in your case and yourself is essential, and if you have it, projecting it will come naturally. However, what if you don’t have such a belief? French diplomat Jean Giraudoux (1882-1944) has been credited with saying: "The secret of success is sincerity. Once you can fake that you've got it made." Most of us can’t do that; it’s best to do only what you believe in.

Second Commandment—Be courteous. I routinely ask law students in the trial advocacy course: “When you are in trial, to whom do you need to be courteous?” The first response is always: “The judge.” The follow-up question is: “Anyone else?” Then, I may get a response that the trial lawyer should be courteous to opposing counsel. “Yes,” I’ll say, “and be courteous even when you wish earth would open and swallow opposing counsel alive.”

Seldom do the students get around to the very important folks—the lower bench: bailiff, clerk, and court reporter. They are watching and listening to counsel at all times, before court commences in the morning, during recesses and at other times. These are the very people who communicate to the judge concerning whom counsel really are and how they behave. If a lawyer is unpleasant with the lower bench, the judge will hear about it. How a trial lawyer treats the lower bench can yield untold dividends. The jury is always watching what goes on in the courtroom. When counsel asks the clerk to mark an exhibit, and the clerk, who has been befriended by counsel, smiles at counsel, the jury sees that counsel could be a very decent person.

Third Commandment—Be brief. Trial judges are busy people with heavy dockets and plenty to read. They are doing the business of meting out justice and don’t have time to waste. Therefore, when you are writing for a judge, whether it is a trial brief, a motion or response or whatever, bear that in mind. Cull out all excess. Put your main points right up front. Forget footnotes. If it is worth saying, put it in the brief, if it isn’t, don’t put it in a footnote or anywhere in the brief.

Fourth Commandment—Let pattern jury instructions be your guide. From the beginning when you are analyzing the case and formulating a case theory to the end when you are crafting and delivering closing argument, pattern jury instructions are invaluable. It is important to keep in mind that because the instructions have been composed by a committee composed of respected lawyers and judges, they are likely to be the law that will govern the case and all the law the jurors will ever know.

How can the pattern instructions provide guidance? At the outset, when you are trying to determine what your legal theory might be, pattern jury instructions provide a catalogue of potential legal theories for you to consider. If you are drafting a complaint or counterclaim, they can provide the framework. When you are planning discovery requests or outlining what to cover during a deposition, pattern jury instructions are instructive. On direct examination you can couch your questions in the language of an instruction that is likely to be read by the judge, and  later in summation you can remind the jury of the witness’s words that are identical to the instruction’s wording. And, ultimately, during closing, you will apply the law in those instruction to the evidence or lack of evidence.

Fifth Commandment: After every trial, an Oregon judge used to ask jurors what they liked least about the trial experience. Uniformly, they responded: Bench conferences. Why? How would you like it if you had to sit idly by while the judge and lawyers across the courtroom at the bench are whispering about whether you should hear something?

The Fifth Commandment—Be open and fair. In trial, you want to be open, candid, and not appear to be concealing anything. If counsel appears to be hiding something, the jurors are not likely to give the lawyer their full trust. Several steps can be taken to accomplish this. First, to avoid trial objections and bench conferences to the extent possible, make motions in limine to exclude the objectionable evidence. Second, take the sting out. If some information will damage your case and it cannot be kept out of evidence with a motion in limine, concede it, even own it. When is it the best time to disclose the harmful information? As soon as possible, and that is during jury selection when you can lay it out for the prospective jurors and ask them whether, given the information, they can still consider the law and all of the evidence and decide the case fairly and impartially. During opening statement, mention the damaging information. It can be buried in the midst of your opening, but don’t neglect to cover it, thus barring opposing counsel from pointing out not only the harmful information but also that you didn’t reveal it. Third, throughout the trial, you can appear open—open with your gestures, open faced, your counsel table not piled with files and so on.

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