Podcast - Borrowing and the Art of Trial Advocacy

Dan Small: Whether you're just starting out or an experienced hand, you should take every opportunity you can to watch other lawyers try cases. When a trial lawyer stands up in court, they're not only pleading the case, they are demonstrating skills, tactics, style and technique. Watch, listen and learn. Trials are public events. You can pay good money to watch a mock exercise at a seminar, and you probably should. But you can also walk into court on any given day and see the real thing for free. Better yet, do both.

You should also feel free to borrow extensively from other attorneys who you think are effective. Their turn of phrase, their voice, their mannerism, anything. The great satirist Tom Lehrer, in his song about Russian mathematician Nikolai Lobachevsky, crooned: "Plagiarize! Let no one else's word evade your eyes. Remember why the good Lord made your eyes." So, what may be shameful in science, publishing and academia is well accepted in court. Advocacy skills can't be copyrighted, and chances are the best attorneys borrowed all their ideas, too. I talked in a prior podcast and also in my recent ABA book of trial stories about using an analogy to an octopus who, when cornered, exudes a cloud of black ink and tries to slither away. After I used that analogy, I was told that several other lawyers who were in the courtroom used it as well. And when I told the story to other lawyers, they used it as well. And imitation, after all, is the best form of flattery. I wasn't offended. I enjoyed the fact that the story had spread. Take notes of things you like and develop and practice them based on your notes. See what works best.

Three key caveats, however, to watching other lawyers:

First, when you can, do more than just watch. Talk about what you saw with them or with others, or both. Why did they do things a certain way? What worked? What did not, and why? What other choices were there? Those types of discussions will make watching trials far more valuable.

Second, you can learn without necessarily imitating. First and foremost, you have to be yourself in court. Juries may struggle with the complexities of a case, but by and large, they are pretty good at spotting phonies, and they don't like them. Your goal is to be the best "you" that you can be. Not to pretend to be someone else. Not everything that works for another lawyer will work for you. Try on different styles, just like you might try on different clothes and find the ones that suit you best.

Third, don't just follow the herd. Don't imitate something without first questioning whether it makes sense. Many of the worst faults of lawyers are perpetrated from generation to generation, simply because new lawyers assumed, oh, so that's how it's done. Just because something sounds impressive or lawyerly doesn't make it a good idea. In fact, if it does sound lawyerly, you probably ought to avoid it. Just because something is said with great passion doesn't mean that there is either sufficient basis or strategic reason for that passion. In particular, just because you saw a lawyer win a case using a particular approach doesn't mean that you should imitate it.

Every day, lawyers stumble and bumble their way through trials, but somehow manage to win anyway, perhaps because even their own incompetence can't overcome good facts or good law. They may delude themselves and, of course, delude their clients into thinking that they've done well. But don't let them delude you. Watch for attorneys who make convincing points, who sound persuasive, who you believe are doing it right, and follow their lead. Observe, evaluate and steal freely what you think is good. You will become part of a long and valued tradition of trial lawyers learning from each other. Or, as Tom Lehrer sang with good humor, when it comes to trials, don't shade your eyes, but plagiarize, plagiarize, plagiarize. Only be sure always to call it research.