VirtualCourthouse; Issue 6.2
Five Commandments of a Trial Lawyer
Judge Arthur M. Monty Ahalt (Ret.) – February 2001
Last fall (October 2000) the District of Columbia Trial Lawyers Association invited me to speak at their regular monthly meeting as a retired Judge, I was ask to be open and frank in commenting on how trial lawyers could improve their performance in front of a judge and a jury. The theory was that I as a retired Judge would have a greater liberty in speaking the truth undeterred by the notion that a lawyer in the audience might be appearing in front of me the next day. In reflecting on my 17 plus years on the bench — some 750 jury trials and countless motions hearings and court trials — it became obvious that most of the dos and don’ts of persuasion could be summarized in five points which I have titled the Five Commandments of a Trial Lawyer.
Rather then allowing a negative impression to control the thought process, I put the commandments in not only in the negative -Thou Shall Not, but also the affirmative – Thou Shall.
Overriding these five commandments is the principle, rule and law of First Impressions. Most every thing we do in life is affected by this principle. The principle recognizes the importance of our ability to record and remember prior occurrences. This historical memory has an impact on our future actions – for better or worse. For the trial lawyer as for any sales person this can be critical. A Judge or a jury will be affected by their first impressions of a lawyer. It is important to recognize that first impressions do no just begin in the courtroom. They start with the first interaction whether that be, a letter, a pleading, a telephone call, a social event, a parking lot occurrence, an interaction with court staff, or the opening statement. Now, most Judges and for that matter jurors desire to be fair so they naturally try to protect against first impressions being controlling. However when a pattern starts to show itself there is no turning back the powerful implications of this law of human nature.
I. THOU SHALL NOT BE A PRESENTER . . .
. . . THOU SHALL BE A PERSUADER
So how is it that a lawyer becomes a persuader and not just a presenter? How does a lawyer move from the bottom 80 percent of the class to the top 20 percent of the class?
Lawyers regularly come back to chambers after a trial and want to know how they did in their performance. Whether they have won or lost they want their performance critiqued. First, I point out that winning and losing a lawsuit is not a measure of professional skill. Good persuaders cannot overcome bad facts and law. Nor can poor persuaders destroy good facts and law. Moreover, the dynamics of a jury trial often allow a jury to overcompensate for poor lawyering. What trial judge has not been told by a jury – “boy that lawyer was just horrible but we could not hold it against the client.” Often they even add “can we make sure the lawyer doesn’t get paid.”
Second, I tell the inquiring lawyer that to become a top-notch trial lawyer, you have to make it your professional zeal to study the art of persuasion. You need to make it the object of your attention every waking hour of the day. That means you have to read about the art, observe the practice of the art, study the art and practice the art. If you haven’t been to a trial practice weeklong course, you need to put it at the top of your priority list. If your employer will not pay for it, you need to save the money and take a week’s annual leave. If it is essential, a true professional will make it their personal professional priority.
Third, you have to understand the elements of persuasion.
The elements of persuasion were first established 2000 years ago by Aristotle, the father of persuasion. Those elements are: (1) believability; (2) sympathy; and (3) logic. For a more complete treatment of this commandment see VirtualCourthouse Issue 4:6, June 1999 .
II. THOU SHALL NOT VERBALLY FIGHT . . .
. . . THOU SHALL TREAT EVERONE FAIRLY
Key to being a persuasive individual is to be viewed by the decision maker as a fair individual. There is nothing more detracting from the logical thought process as a verbal fistfight. A lawyer who gets in verbal fistfights on frequent occasions simply is not believable to a Judge or Jury. This dynamic may not apply to the occasional battles usually attributed to the frustrations of trial work. It is the frequent pattern that exists with some advocates, which cause a judge to ignore the persuasiveness of the lawyer. Picture yourself being the judge assigned discovery motions. You see this one particular lawyer have a verbal fight every week. Why would you put any weight in what that lawyer had to say about any given point? I must say that it is a constant battle for a Judge to divorce the annoying and distracting tendencies of lawyers from the clients right to have a fair trial, but in the final analysis it is the client who chose the lawyer and is therefore going to be affected by the good traits as well as the bad traits of the individual lawyer.
III. THOU SHALL NOT CITE AN UNREAD CASE . . .
. . . THOU SHALL BE A STUDENT OF THE LAW
The sloppiness with regard to legal research and citations is unbelievably frequent. It is a rare that a lawyer’s word on the law can be trusted, not because of purposeful misleading statements, but simply sloppiness. This is perhaps the most single important attribute of a trial lawyer—believability on the law. Sadly, very few lawyers possess this attribute. Lead a judge astray on the law-on purpose or by neglect – results in never being able to win an important point of law in a real important case. It is as if lawyers have not read the rules of professional conduct.
Rule 3.3. Candor toward the tribunal.
(a) A lawyer shall not knowingly:.
(1) make a false statement of material fact or law to a tribunal;. …..
(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel;
And the comments to the rule state:
Misleading legal argument. — Legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal. A lawyer is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities. Furthermore, as stated in paragraph (a) (3), an advocate has a duty to disclose directly adverse authority in the controlling jurisdiction which has not been disclosed by the opposing party. The underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case.
See Maryland Rules of Professional Conduct, Rule 3.3.
To make sure you do not fall into this category you need to become a student of the law.
IV. THOU SHALL NOT BE SLOPPY . . .
. . . THOU SHALL ALWAYS DRESS PROFESSIONALLY
Ah- the age of the Internet. Casual is better and besides that it is more comfortable. But casual versus formal is only half of the question. A sloppy lawyer is not a persuasive lawyer whether it is the dress, the organization of the pleadings, and the use of the counsel table in the courtroom or the car, which jurors see in the parking lot. Of course part of the problem is generational. I remember my parents complaining about my dress. How could I wear blue jeans on a Saturday night – they wanted to know. I also remember that the top-notch winners always looked like a million dollars and usually were paid a million dollars. My father -in law Blair Smith, a former States Attorney, and a superior trial lawyer, was known for his superior dress and his winning way in the courtroom. He would walk into a room with the Governor and people would want to know who was with Blair. The point is -your dress does make a big difference as well as your general organization. The better you dress the better you perform and the more persuasive you are with jury, judge and client. The more cases you will also win.
V. THOU SHALT NOT TRY TO SELL AN UN-SELLABLE POINT . . .
. . . THOU SHALL PICK ISSUES STRATEGALLY
This last commandment could be the sleeper and the most important. Oh – the agile mind of the lawyer. Give a lawyer enough time and how many issues can he come up with. Sometimes it seems endless. Put three partners in a room and more than the power of three compounds the problem. And then there is the shot-gun approach. Rarely does this approach help achieve a win. In fact the approach usually results in the judge or jury not taking any one issue seriously. A top 20% lawyer will pick the two or three most important issues and keep hammering them home. Even though unpersuasive in the present case the lawyer’s credibility is preserved for the next case.There is an art to making points for the purpose of preserving the rights of your client.The point is that you do not have to spend any time talking about them once they are preserved.
I am confident that if you follow these five commandments that you will start achieving greater results in the courtroom and then more clients will be knocking at your door.