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Truth and the Virtue of Candor: Advocacy as Art

In Advocacy, Arts & Letters, Communication, Information Design, Legal Education & Pedagogy, Legal Research & Writing, Rhetoric, Rhetoric & Communication, Writing on February 21, 2011 at 10:13 pm

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] Read the rest of this entry »

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