Jonathan Board lives in Northern Appalachia with his wife and three children.  A graduate of West Virginia University College of Law, he has also attended Harvard Extension School, Fairmont State University, and the University of Cincinnati. Beyond legal commentary, he enjoys civic and community volunteerism, theological and ethical discourse, technologies, and athletic coaching.

Truth and the Virtue of Candor: Advocacy as Art

The truth is that no law student in America receives competent training in the art of advocacy.  […] Generations of students [have been produced] who at graduation were utterly unqualified to do anything except what their professors did—study the law.[1]

The art of warfare is defined as deception. Sun Tzu said, “When able to attack, we must seem unable; when using our forces, we must seem inactive; when we are near, we must make the enemy believe we are far away; when far away, we must make him believe we are near.  Hold out baits to entice the enemy.  Feign disorder, and crush him.”[2]  Similarly, the art of legislation, as John Quincy Adams observed, is the ability “to do a thing by assuming the appearance of preventing it.  To prevent a thing by assuming that of doing it.”[3]  The art of business is that “set of dynamic, integrated decisions, that you must make in order to position your business in its complex environment.”[4]  Surprisingly, the art of advocacy, which, unlike war and, to differing degrees, legislation and business, affects every aspect of life. Yet, it is left without scholarly definition, thus begging the question: what is it? I submit that the art of advocacy is a combination of many elements—storytelling, play-acting, artistic expression.  As the opening quote suggests, the legal education system today focuses almost entirely on the methods and techniques of legal research, not on true advocacy.  This is due, at least in part, to the adoption of the “case method” style of study.  Case methodology was developed by Christopher Columbus Langdell during his professorship at Harvard over a century ago.[5]  This style of study is infused with pragmatism, and focuses almost entirely on legal research and teaching through the process of inference.  Although research is arguably one of the more important aspects of the profession and practice of law, it is, in fact, only one aspect.  Langdell’s technique overlooks the fact that advocacy is an essential aspect of the practice of law, and, as such, requires the mastery of numerous oratory skills.  However, Langdellian theory has infected the legal profession to the point that many legal scholars consider the teaching of these oral advocacy “arts” as nothing more than juvenile exercises—something that must be shunned in the hallowed halls of legal academia.[6]

An example of the failure of the case method is the current trend in law school testing, which is intended to simulate the stress that lawyers experience in practice, but in so doing trumps the original intent of testing as a measure of actual knowledge.  Law school testing is entirely focused on so-called “issue spotting” or “unpacking” of the question presented.  Vanderbilt Law Professor, Phillip Kissam, notes that “the principle of speed [in law school exams] rewards students for answers that merely identify a maximum number of issues and specify precisely many different rules.  This principle tends to de-emphasize, discourage, and penalize student writing that involves coherence, depth, contextual richness, and imagination.”[7]  As such, it is of no surprise that many trial lawyers find it difficult to effectively advocate for their clients.  Many of the greatest tools of advocacy (such as empathy, compassion, and victim identification) are forms of art that remain untaught in many if not most American law schools.  To rectify this predicament, let us discuss the scholarly commentary, methods, and styles expounded upon by those few, true artisans of legal advocacy.

 The Establishment of Story

I am a lover of old trees

And old men.

Shed of the passing leaves

And empty pretenses.

Hard enough to bare

The skeleton of the soul—

Quite enough for old trees

And old men

Amen.[8]

All good stories must, at their core, possess truth.  But to know truth, one must first know sadness, disappointment, frustration, and, most importantly, fear.  Although it may seem strange to associate fear with truth, these concepts are, in fact, symbiotic—one cannot exist without the other.  The philosopher Cicero would likely disagree with such a paradigm.  He discouraged speaking from the heart, much less from the expression of one’s own fear; he believed that such exposure would be a foolish mistake, as the speaker would lose all power of persuasion.

He was wrong.

Cicero claimed that a speaker must conceal all feelings so as to discover what the listener’s goals are.  Once those goals are identified, the speaker must then adapt his theme and oration to address the concerns of his or her listener(s) regardless of their actual relation to the original intent of the discussion.  Once this is accomplished, the speaker must manipulate the listener’s goals to that of his or her own.  Circero’s practice, though dynamic, seems a bit convoluted, if not outright mischievous.  I suggest that in today’s society, truth is far more important than the rhetoric that uncovers it.[9]

Fear can be debilitating, crippling, and altogether numbing, especially when one is attempting to develop an honest story.  Many struggle and fight against it.  They ask themselves: what does my audience want to hear, or will my audience believe me—even if what I tell them is the truth?  Gerry Spence, one of the giants of legal advocacy, suggests that fear should be embraced as a useful method of not only finding, but also exposing, truth in our story.[10]  Spence encourages individuals, regardless of their profession, to “own” fear.  He says that fear is something to cherish.  It takes courage to face our fear, whether the fear is due to some weakness in our case, or to an inability to connect with the jury (or to something else altogether).  The only remedy to fear is truth, and so it stands to reason that the only way to overcome fear is to tell the truth.  Telling the truth, however, requires bravery, and one cannot be brave unless one has first experienced fear.

Thus, fear is a sort of gift that leads us to the ultimate truth.  It is only when we “own” our fear that our story can begin to cultivate; if we do not control our fear, we are likely to be blinded by the truth rather than accepting of it.  That said, there are many pitfalls to story development beyond fear, the most dangerous of which is anger.

William Blake’s poem “Christian Forbearance” suggests that unmanaged anger only breeds more anger:

I was angry with my friend:

I told of my wrath, my wrath did end.

I was angry with my foe:

I told it not, my wrath did grow.[11]

We all feel anger—toward family, friends, enemies, God, everything.  Yet anger itself is not the problem; as Blake indicates, the true problem is the retention of anger.  Anger, like fear, can be a useful tool in the growth of our story.  Therefore, becoming emotionally involved—and, yes, even angry—only serves to heighten the depth of our story.  In so doing, we encourage the listener, who normally may be only half-committed, to become involved and to fully appreciate the gravity of the situation.  Thus, in developing our story, it is totally acceptable to be afraid and angry—indeed we should.  Yet, as the old adage suggests, “be angry and sin not.”[12]  By being angry and sinning not, we become free to use all our “machinery” to develop the story we wish to tell.  With the “gifts” of emotion we can see our story fully—that is, as a panorama of truth rather than a snapshot of mere facts.

The Opening…of Minds

There. The dead tree still

Standing in the leaden sky

Its bare limbs prepared

For spring, reminding neighbors

Of the virtue of candor[13]

During a trial, the opening statement, if nothing else, must contain absolute truth, expressed with complete candor.  Merriam-Webster defines candor as “whiteness, brilliance, […] unstained purity, freedom from prejudice or malice, […] fairness, kindliness, unreserved honesty, or sincere expression, forthrightness, the candor with which [one] acknowledges a weakness in his own case.”[14]  Thus, an opening statement, regardless of audience or setting, must maintain a condition of candor throughout; otherwise, the audience will feel betrayed.  We must create an aura of courtroom credibility by never saying anything in the opening statement that cannot later be later exposed as absolute truth.

The opening statement is the time to tell our story.  The story should always begin by defining the characters and setting the scene.  Thus, when opening, one should recall one’s story as if it were a book with plots and chapters.[15]  It is important to remember that humans think in pictures and hear in parables.

The great artists of the legal profession suggest that all opening statements, whether in front of a judge, jury, business colleague, friend, or family member, must possess a tripartite style of delivery.  This style connects three elements to one single event, bringing more weight and credibility to the story.  Below is an example of this technique preformed in an opening statement by the famed trial lawyer Roger King:

We will take you back to a household preparing for Christmas.

We will take you back to that Monday when

                     one Marci Jones

                     one Audrey Jones

                     and one Donald Jones

                     were three

                                alive

                                people.[16]

This style alters static facts and their relation to the players and grasps the true weight of each as an indispensable element.  Evidently, the performance of the tripartite style requires a cadence that does not come naturally.  As if in a poetry reading, the speaker must slow his or her pace and emphasize specific words and aspects of the story.  Although in written form, I attempted to employ this style, to some degree, and hopefully with some success, in the introduction to this essay.  In any case, implementing this style in the opening statement will enliven the audience and bring relevance to the recollection of facts, something which is, all too often, an arduous task for both the speaker and listeners.  By properly mastering this technique, one gains the ability to mold the opening to their will—and to make it what it should be: an imperative expulsion of the truth of one’s argument.  Furthermore, because our opponents are dealing with the same facts, a strong performance in the opening will go a long way in exposing weaknesses in the opposition, even if those weaknesses simply involve the speaker’s delivery.

Questioning: Control v. Compassion

Storytelling is like photography,

it is as much about what is left out

as what is captured.[17]

Questioning is yet another form of storytelling.  Although some suggest that something akin to torturous interrogation yields the best results, I contend that the initial or cross examination of a witness maintains power in its testing of the truth—often more in the subtleties of question choice and style rather than in robotic interrogation.  The proper method of cross questioning begins with a statement that forwards or infuses our story through the witness.[18]  This method basically uses the witness as a quasi-host for the purpose of telling our story.  Generally, there are two ways to accomplish this:  controlled questioning and compassionate questioning.

The controlled method, as the name suggests, is very simplistic.  It asks one question, receives a short answer to that question, and then repeats itself.  This repetitive form of questioning continues until the questions, witnesses, judges, juries, and any other listeners are completely exhausted.  The controlled cross has its benefits: it prevents the witness from answering the wrong question, from dodging or stalling, or from avoiding the question altogether.  It is a simple form that is easy to follow and is generally successful in keeping the witness on track.  Indeed, it is very likely that one could go into any courtroom across America today and witness this style of questioning in practice.  However, what the controlled style gains in simplicity it sacrifices in emotion and audience connection.  The controlled questioning’s form is bland and, frankly, rather boring, and is often treated as such by the listener.

Alternately, the compassionate form of questioning allows for a far greater connection between the speaker and listener, if for no other reason than its emotive effect.  It draws the listeners in, and the listeners, as they would with any good story, become so compelled to listen that, even against their will, they feel that they must become involved.  Compassionate questioning takes into account the fact that most listeners are, in fact, decent, ordinary human beings facing a difficult moral dilemma: deciphering the truth.[19]

However, to assume that the compassionate form of questioning is compassionate to the witness is somewhat inaccurate.  The compassionate form is focused first, and always, on the story we wish to tell.  Thus, if properly executed, the compassionate form does not pause in a line of questions for an answer, nor does it give much credence to the witnesses’ responses.  This is because its basis for success is not due to any answer it gleans, but rather, to the story it tells.  Therefore, the main objective of the compassionate cross is to create compassion only in the story you wish to tell. 

I suggest that the controlled style of questioning is not true advocacy, and if used on behalf of a client, borders on malpractice for lack of zeal.  On the other hand, I believe that the compassionate style of questioning is a true art, and if used properly, employs emotional creativity that ultimately attempts to expose the truth of a position.  Like play-acting, compassionate questioning requires artistic expression; like poetry, it requires artistic value; and like photography, it requires an artistic eye to capture the truth.  Compassionate questioning is the epitome of advocacy.

Closing With a (soft) Bang: The Simple Truth

Know the Truth of this,

Not just the words!

The Truth is all

What is![20]

World heavyweight boxing champion Mike Tyson, now infamous for biting off the ear of an opponent during a match, once said, “Everybody has a plan until they get hit.”[21]  Nowhere is this truer than during an argument, especially a closing argument.  When defining any strategy for success, it is important to remember that you will be “hit,” and when you are, you must be willing to adapt your style and technique to the needs of the situation.  Another legendary fighter, Bruce Lee, known in the West more for his movie presence than for his fighting prowess, said that in all of life, there is a “necessity to adapt oneself to changing circumstances. The inability to adapt brings destruction.”[22]  So it is with this in mind that I defer once again to the knowledge and experience of Gerry Spence and present what I believe is the best advice for a closing argument.

Spence has developed a multi-step process for a closing argument, expounded upon in his book Win Your Case: How to Present, Persuade, and Prevail—Every Place, Every Time.  Interestingly, the steps and techniques required within them rely heavily on artistic methodology.  I have tweaked, modified, and in other ways altered the process into an amalgamation of five general categories, none of which is mutually exclusive.  Within each of the steps, it is important to remember that legal justice is a feeling, a myth, and without definition. [23] 

Step 1: Identification of hero and villain. Spence claims that justice “is born of a need for retribution that comes bursting out of the deepest recesses of the human condition, pain that has been fueled by loss, or fear, or deprivation, and that is responded to within the limits of our meager ability to provide it.”[24]  As if in a theatrical performance, the major players should be identified early in the process.  This helps the audience to recognize the “hero” (your client and or issue) and root for them or it, and at the same time to consider your opponent or opposing issue as the villain.

Once the villain and hero are effectively recognized, the speaker should, if possible, embody the victim.  Victimization not only helps us properly advocate for our client, but also helps the listeners (the jury) relate on a more personalized level.  In an attempt to accomplish this, we should speak in the first person.  The recollections that make up the argument should come from our client’s memory, not from a police report; rather than recalling the facts from our client’s position, we should re-live them as if we, both speaker and listeners, have become the client—(collectively) our client.

Step two: Allow righteous indignation and “ethical anger” to motivate you to action.[25]  This step requires that we return to William Blake’s warning regarding anger.  However, giving over to ethical anger during a closing argument, although somewhat unnerving for our community of reserved professionals, can be extremely beneficial.  Indeed, many zealous advocates employ this tool liberally to great success.[26]  However, a word of caution is due here: anger can help us advocate and even preserve our own sanity, yet simply venting anger does not solve the problem we are facing.[27]  Furthermore, attacking our opponent argumentum ad hominem will fail to expose truth, or to vindicate our position.  Spence recalls a story about when he was a young lawyer arguing a slam-dunk case in which he decided to attack his opponent in a verbally violent way throughout trial.  The jury was out only fifteen minutes and returned with a verdict for his opponent.  As the jury members filed out, one stopped Spence and said, “Why did you make us hate you so?”[28]  This clearly demonstrates that simply being angry accomplishes nothing—indeed, it is more likely to destroy a case than to win it.  We must allow our anger to flow, like a great volume of water, against the issue of contention, not against the person representing our opposition.

Step three: Determine what justice is in each case, and under no uncertain terms, ask for it.  As previously mentioned, justice is indefinable; it is dynamic and ever-changing depending on the circumstances.  Thus, it is up to us, as advocates, to define what justice is every time we argue.  It is a great failure to assume that a sort of cookie-cutter approach to each case constitutes great advocacy.  Remember, all aspects of the art, including the closing, require adaptation.  Sadly, many lawyers develop a strict regimen for their closing argument—one by they hesitate to stray from, many times to their and their client’s detriment.  This is a travesty.  Even the categories suggested by this author should be considered nothing more than a flexible travel guide, certainly not a detailed, GPS-powered topographical map.

Step four: Shift responsibility of attaining the identified justice to the decision-maker.  Within tort law, there is a method called “burden-shifting,” whereby the element that the plaintiff must prove is shifted to the defendant to disprove.  In similar fashion, once we have identified justice (by means of expressing ethical anger against the actions of the villain), we must shift the burden of administering justice to the judge or jury, as we are helpless to offer justice without them.

After these steps, our performance comes to an end.  Our playwright has been the truth, nothing more.  Although some propose that advocacy requires only a mastery of performance that crafts the appearance[29] of truth, I suggest that actual truth, infused with candor, is far more compelling, regardless of the performance and style employed.  “The only cases that can be won in the final argument are those that have not been previously lost. On the other hand a good case can be lost in those fatal, final moments.”[30]

The Art of Honesty

If your case is weak, tell the jury it is weak; if your case is strong, and yet you have somehow failed to properly deliver it, tell them, because they already know!  This truthtelling approach applies to all aspects of life; I contest that the truth is of equal or greater importance to things other than law.  Indeed, if the truth was treated as such, there would be little, if any, need for the legal system as we know it today.  Hiding a fact that is already known accomplishes nothing but the destruction of our own credibility, which, once lost, is lost forever.  Although forgiveness may be attained, remembrance of the transgression will nonetheless linger.

In the legal realm, we advocates are officers of the court, and, as such, possess authority to aid in the righting of wrongs.  The law is helpless without someone or something in authority to administer it.  It behooves us, then, to avoid the trap of fact recitation and to cling to the justice that we define as truth.  Advocacy is an elastic and complex art, one that must bend itself to the evidence that has developed during trial—if it doesn’t bend, it simply will break.  Truth always attempts to get into the picture—it is up to us to guide it through the “lens” of story.