Tuesday, May 19, 2020


Here we cover the other five Commandments in the Ten Commandments for Pretrial and Trial Advocacy. The first five were declared here.

Sixth Commandment—Be a storyteller. People want a story. Your audience—jury, judge, mediator—want a story. Our history is a history of storytelling. We pass on our culture with storytelling. Our stories are told online, in newspapers, in plays, in movies—all storytelling.

How important are stories? You may remember the movie The Amistad. The Amistad was a slave ship traveling from Cuba to the United States in 1831. The slaves revolted and took over the ship and told the crew to take them back to Africa. Instead, they sailed up the coast of America, and the slaves again were taken captive. There was a legal battle over who owned the slaves or whether they were free to go. A scene in the movie involves an abolitionist coming to see John Quincy Adams the former President of the United States who was a lawyer. He sought Adams advice. What he got is at the heart of the Sixth Commandment. Adams says, “When I was an attorney long time ago, I realized after much trial and error, whoever tells the best story wins.” Adams then goes on to teach the abolitionist that it must be a human story.

How to construct a good story is neither a Commandment nor brief enough to cover here. Rather, how to develop a persuasive story is discussed at length in Trial Advocacy: Planning, Analysis, and Strategy.

Seventh Commandment—Have a good reputation. Courthouses, big or small, have channels of communication. No matter how big the courthouse is, if you are a trial lawyer and have appeared in  a courtroom, word will get around about you. Judges talk to each other about the lawyers who appear before them. Courtroom staff talk to each other and the judges. You will have a reputation.

You want that reputation to be a good one. A good reputation is like a life preserver. Trial can be like a rough sea, and that good-reputation life preserver can bouy you up when the sea gets rough. If you make an objection and the judge has heard that you are known to be a good trial lawyer who knows evidence law, you can be assured that the judge will seriously consider your objection. A lawyer with a bad reputation is likely to have their trial work scrutinized by the judge. Once a lawyer has acquired a bad reputation, it is difficult to shed it.

Eighth Commandment—Be better prepared. David Boies, renown trial lawyer, credits his trial successes to preparation as follows: “Well, I will outwork the other side every single time. At the start of every trial, the other side starts out working as hard as I do. But at some point, they say, ‘I’m going to go out  with my girlfriend,’ or spouse, go to the opera, go see the latest movie. And at every trial I’ve ever had, the other side stops working as hard as me—if they ever did, sometimes they never do.” He also expressed it this way: “It's a matter of priorities. Do you want to win, or would you like to sleep? Do you want to win, or would you like to take a day off?”

Ninth Commandment: Jim McElhaney, who for decades wrote a column for the American Bar Journal, wrote: “Law school is as much obscure vocabulary training as it is legal reasoning.  At its best, it can teach close thought and precise expression.  But too often law school is reverse Hogwarts – where Harry Potter trained to be a wizard – that secretly implants into its students  the power to  confuse other people instead of sowing  the magic seeds of clarity and simplicity. . .” McElhaney’s successor in the job of writing columns for the Journal, expressed a similar sentiment as follows: “While lawyers are the most highly paid rhetoricians in the world, we’re among the most inept wielders of words. Stop and think about that. The blame goes primarily to law schools.”

Ninth Commandment—Be plain and simple. McElhaney gave lawyers this advice: “Because we are professional communicators, it is our obligation to be plain and simple. It’s not our readers’ and listeners’ jobs to try to understand us.”

Most of the folks we come in contact with when practicing law, never went to law school. What they know about trial came from television, movies and books. Don’t speak to them like they are lawyers. We must drop legal jargon. Use examples that the person can relate to. Focus on what the person—jurors, client, witness, whomever—and speak and write in plain and simple language that can be easily understood.

Tenth Commandment: Be diligent and prompt. Law school teaches some bad habits. Not just how to be lousy  communicators. It also teaches procrastination. For most law school courses, the student’s grade is mostly determined by a final examination. Sometimes, the course will have a midterm examination. This can lead to procrastination and cramming at the end of the course. 

This pattern of procrastination can continue once the student passes the bar and goes out into practice. When lawyers open the bar news, where do they turn first? To the back to see who has been suspended or disbarred. What is one of the main reasons for sanctions? Yes, Rule of Professional Conduct 1.3: “A lawyer shall act with reasonable diligence and promptness in representing a client.”

Short of sanctions, procrastination can lead to a lawyer gaining a bad reputation. The lawyer is always seeking extensions. Work piles up on the lawyer’s desk. The lawyer misses deadlines. Strategies that can be used to ensure that work is completed on time are the usual time management tools, such as setting a deadline before the deadline the court sets so that you can deal with the unexpected happening. On the other hand, the lawyer who is diligent and gets work done on time, is one who acquires a good reputation.

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