A Clearing in the Forest

This article is reprinted with permission from the October 11, 2002 edition of the New York Law Journal. © 2002 NLP IP Company. All rights reserved. Further duplication without permission is prohibited.  

Cardinal Rules of Advocacy: Understanding and Mastering Fundamental Principles of Persuasion

No lawyer can achieve full potential as an advocate without training and experience. As Herbert J. Stern states in the introductory volume of his peerless Trying Cases to Win:

“No one is born a trial lawyer, anymore than anyone is born a concert violinist! Trial lawyers are made. Of course you need talent. That is essential for any successful professional career. But talent alone is not nearly enough. In addition to talent, it is necessary to have training. A properly trained lawyer of modest talent would be a better advocate than one with great ability – but without training.”

Increasing economic pressures make it difficult for clients to trust their cases to untested advocates. As a result, a lawyer may practice for several years without getting an opportunity to test her advocacy skills in a real-life context. When that call comes, the lawyer had better be ready to answer it -- the days leading to trial or oral argument are decidedly not the time to be reading a how-to book.

Several fine organizations exist to train lawyers in advocacy skills. The National Institute of Trial Advocacy provides “learn by doing” training in trial and appellate advocacy. The Inns of Court encourage collegial discussion of trial problems and solutions. (In the interests of disclosure, this reviewer has been affiliated with both of these institutions). There is also considerable literature on the subject of advocacy, but few books can hope to match or fully impart the hard lessons of experience. 

A new book under the NITA imprint, Judge Douglas S. Lavine’s Cardinal Rules of Advocacy: Understanding and Mastering Fundamental Principles of Persuasion, comes as close as a book can to providing both mentoring and advocacy experience. It is a compact, useful, and engaging addition to advocacy literature. 

Judge Lavine is a former AUSA and a sitting trial court judge in Connecticut , so he has the practical experience to know something about his subject. However, the book makes clear that his interest in advocacy – what works, what doesn’t, and why – is a lifelong pursuit dating back to his pre-lawyers days as a reporter.  Judge Lavine has assembled a fine selection of quotations and examples to illustrate his cardinal rules, and provides a terrific, personal multi-disciplinary bibliography of recommended readings. Judge Lavine has clearly taken to heart Justice Frankfurter’s advice that “[t]he best way to prepare for the law is to come to the study of the law as a well-read person.”

The book has a unique three-part structure. Each chapter starts with the statement of a fundamental principle of advocacy – such as cardinal rule one, “identify the audience and tailor the argument to its needs” – an explanation of why it is fundamental, and illustrations of the principle in practice. This description is followed by a chatty “Notes” section, which describes the source material and suggests further study. The final section of each chapter is “Musings and Exercises,” a series of questions -- some rhetorical, some not -- which require the reader to carefully review and synthesize the materials of the chapter. 

These “Musings and Exercises” make the book unique and, at first, a little baffling. The reader who comes to the book looking solely for a list of precepts may be disappointed. Judge Lavine’s seeks something entirely different. He seeks, in effect, to engage the reader in a dialogue and to force examination of the principles and problems of effective advocacy through the reader’s own prism of thought. Although such effort is ultimately very rewarding, it is difficult.

So, for example, in illustrating cardinal rule seven, “the need to focus the audience’s attention on key themes,” Judge Lavine quotes the acting teacher Stanislavski’s advice that “[i]n a play, the whole stream of individual, minor objectives, all the imaginative thoughts, feelings, and actions of an actor, should converge to carry out the super-objective of the plot.” Anything that is not bonded with the super-objective will be fragmented and unconvincing. “Break up a beautiful statue and the small scraps of marble cannot be overwhelming in their effect.” Acting and advocacy are not unrelated; as D.C. trial attorney Jacob A. Stein notes, “the root of trial is dramaturgy.” In the “Musings and Exercises,” Judge Lavine restates these observations as questions:

1. Is Stanislavski’s advice to actors applicable to advocates?

 

A. Do you agree with Jacob A. Stein’s observation that the root of the trial is dramaturgy?

 

B. How far does this analogy go before breaking down?  

Answering such questions requires both hard thought and a willingness to play the game, and I suspect that many readers may be tempted to give them short shrift. (For this reason, Judge Lavine’s book might work best in lawyer discussion groups, which are not as common as they should be).

For a reader who is willing to make the effort, though, the “Musings and Exercises” force critical examination of the subject matter from the reader’s own perspective. Such examination is essential because, although the cardinal rules apply to all, their implementation must necessarily differ according to the individual lawyer’s personal characteristics. There is no one-size-fits-all style for effective advocacy.

What a reader gets from Cardinal Rules of Advocacy is dependent, in the end, on how willing the reader is to do the work that it demands. (The cover illustration of Norman Rockwell’s law student, pounding the books under the watchful eyes of Abraham Lincoln, is an apt one). In a way, the book is an object lesson in cardinal rule four – the importance of total preparation. Judge Lavine teaches that it is not enough to know the rules. The rules have to become part of the advocate’s essential nature. Such internalization (which allows the advocate to know when to ignore the rules – the key to true brilliance) is only possible through diligent effort. At its root, the law is about hard work. As Lincoln observed, “there is not a more total error than relying too much on speech making. If any one, upon his rare powers of speaking, shall claim exemption from the drudgery of the law, his case is a failure in advance.”