An American in Oz: A Trial Lawyer’s Thoughts on Advocacy
This month’s article will talk about some basic concepts of advocacy. In the future I’ll review some strategies for specific tasks such as cross-examination.
The first thing I want to discuss is primacy. People remember what they hear first, people believe what they hear first. Did you read the Tale of Two Cities in school? If so you probably recall the first sentence: “It was the best of times, it was the worst of times.” I will also bet you can’t recall any other sentence from the book. You remember what you hear first. This is called primacy. Authors, particularly good authors, understand primacy and put a great deal of effort into their opening sentences. They want you to read their story; you want the judge and jury to remember yours.
This is particularly important in jury trials, but is also true of trials before a judge alone. So put your best and most important point first. We often, as journalists call it, “bury the lead”, and put our best point deep in a jungle of rhetoric. Think about your opening sentence in any address or submission – if it does anything but make your best point and lead compellingly into your story, revise it until it does.
Research shows that jurors choose sides early. Judges, and this may be news to some younger barristers, are people too. But judges, whether they admit to it or not, are governed by the same emotions as ordinary folk. Obviously, they try to suppress those feelings, but they are still there. To prove that, think of the number of court decisions, including High Court decisions, that tortured established legal principles to reach a result favoring a party to whom the court felt empathy. As an example consider the decision of the High Court in Northern Sandblasting which briefly confused the law of non-delegable duty to favor a severely injured young girl against a corporate landlord when the party who was principally responsible for her injuries lacked the means to satisfy any judgment.
You want to have the trier of fact barracking for you. In America, we say rooting for you, but I understand that has another meaning here. Primacy gives you the opportunity to have the judge or jury subconsciously on your side from the start. There is a human tendency to chose sides. Ever watch a footy match, like the World Cup or an NRL game between two out-of-state sides, where you had no reason really to favor one side over another, and yet found yourself after a few minutes barracking for one side or the other? That happens in court, so you want to be sure the judge or the jury is barracking for you.
A trial is communication. A trial, particularly a jury trial, is not an appeal to intellect. We are after hearts, not minds. If we have their hearts, the minds will follow. We will need to provide an intellectually suitable excuse to justify the emotional result, but as we know that can sometimes be a bit of reach, so you have to help by telling your client’s story in way the touches the heart as well as the mind. This is not to advocate pure pleas for sympathy or blatant emotional appeals, but rather framing your case as justice to be done or an injustice to be set right.
A trial is not a lecture. A lecture transfers information from the notes of the lecturer to the notes of the listener without passing through the brains of either. Also there is the annoying fact that others will be talking – witnesses and opposing counsel.
A trial is not a conversation. Sadly, the jury usually cannot ask questions or participate interactively, so we are never know for sure if our messages are getting through. In trials before a judge alone, the judge may well ask questions, and this a vital moment. If the judge asks you, or a witness, a question – rejoice. That question gives you a hint as to what he or she may be concerned about, or interested in. By the way, we all have an instinct to duck questions that probe weaknesses in our case. If you do that, particularly before a judge, you just confirm the weakness. Better to respond candidly – “Yes that may appear to be a weak point, but it is overcome by these strengths…” And go on from there.
A trial is theatre. “How American”, I hear you mutter, but it’s true. A trial is a play – you are the author, director and stage manager and even one of the actors. The witnesses are other actors whom you want to play their parts. And as sometimes happens in the theatre, there are some on stage trying to undermine what the others are doing.
As in the theatre you are going to be telling a story, a story whose ending compels a verdict for your client. Much of what this and the subsequent articles will be about is how to tell your story effectively while undermining that of the opposition. It is combat theatre. A trial involves not just telling your story but selling your story.
To sell your story you have to be credible. Your credibility is the most important asset you have – don’t lose it. As Charles Schultz’ Linus used to say, “Always be sincere, whether you mean it or not.” Kidding aside, you must know the facts and never promise more than you can deliver. Never exaggerate or mislead. Apart from the ethical violations, if you lose credibility with a judge it is a true disaster. First, the judge will likely help you lose this case; second, he or she will be suspicious of you next time; and, third, the judge will tell all the other judges to keep an eye on you as you can’t be trusted.
Likewise, you want to be the one the jury trusts. If they come to learn that, if in your submission you promised something would be proved, then it would be – and that they could rely on you for accuracy and fairness – they will transfer that trust to your client. While good facts can beat good advocacy, generally if a case has progressed to trial it is because the facts are disputed and closely matched on each side, and trust can tip the balance.
The jury watches everything you do, so everything you do must make you look trustworthy and respectable. It is not only what you say but what you do, how you dress, how you interact with court staff, etc. All of that is communicating something to the judge or jury.
“But”, I hear you interject, “we all dress alike, we are all in wigs and gowns.” Apart from the fact that, as I understand it, barristers these days are often not required to robe, the fact is I have seen barristers display contempt for jurors with their dress.
This is a true story. I was lurking in the back of the court room during a criminal trial I was watching. The lunch hour arrived and we all stood while the judge left the court room. As soon as he was out of sight, and while the jurors were still in the box waiting to be lead out by court staff, the defence barrister, slumped into his chair, threw off his wig and started to put a foot on the bar table.
Lawyers should stand respectfully until the last juror is out of sight before relaxing for the break. Jurors will respect you if you show respect to them.
Speak plainly. No Latin shall pass your lips, nor any legal jargon, nor any tired law school phrases. Speak in court like you would at a barbecue (at least as you would before that fourth glass of wine). Also speak up and don’t mumble. I realize Australians speak more softly than Americans, and you certainly don’t have to shout, but you can’t persuade if you can’t be heard. Older jurors may be a little hard of hearing due to age and the younger ones have attended too many rock concerts.
Pomposity: Get over it. Barristers have what I’m sure is a totally unmerited reputation for being a bit pompous. If you are going to connect with a jury you have to get over yourself. If robed, you have the additional problem of overcoming the wig and robe to appear to be human.
Finally for this month, a few words on humour. Some people are naturally good at humour and instinctively know when and where it can be used. Sadly, many of us are not, but may not know it. Humour can be an excellent way to appear human and to defuse a tense moment, but it can also lead to disaster. The best rule is that if a joke is called for, make sure that you are the butt of it. Self-deprecating humour is the safest and best received.
Bio – Peter Axelrod
Peter obtained his law degree from the University of California at Berkeley. He was admitted to practice law in California in 1973. Since then he has been admitted in New South Wales and Queensland. In America he was the managing partner of Reid, Axelrod, in San Rafael, California, having been employed at that firm since 1973 and a partner since 1978. In Australia he is special counsel to CLS Lawyers in Brisbane, specializing in aviation and insurance litigation as well as international law.
He is a member of the Australian Insurance Law Association, Aviation Law Association of Australia and New Zealand, Lawyer-Pilots Bar Association, American Bar Association, American Board of Trial Advocates, and the Defense Research Institute. He is a member of the International Society of Air Safety Investigators and a graduate of the aircraft accident investigation course at the University of Southern California.
Peter is the co-author of the Aviation Torts chapter in CALIFORNIA TORTS, Matthew Bender, 1984, 1997. He has made presentations for the Australian Insurance Law Association, the Aviation Insurance Association, the Aerial Agricultural Association of Australia, the Administrative Appeals Tribunal, the Queensland Law Society, Queensland Transport and the College of Law in Sydney.
He was Adjunct Professor of Aviation Law at Embry-Riddle Aeronautical University from 1978 to 1986 and is now the proprietor of Professional Advancement & Continuing Education Seminars which provides continuing professional education courses on, among other things, aviation law, negotiation and trial advocacy. He has tried over 100 civil jury trials in the US and has taught advocacy for the last 10 years.
He is a licensed pilot with ratings for fixed-wing aircraft and helicopters and has been flying since 1972.