by Daniel P. Richardson, Esq.
PRESIDENT’S COLUMN
Getting to Yes And ...
When we look at the history of the lawyer, we think of him or her first and foremost as a trial advocate. From the beginning of our profession in ancient Athens,
with its citizen advocates who gained renown through their rhetorical skills employed on behalf of other citizens—offering speeches in defense of accused individuals known as “apologies”—lawyers have
been rooted in the skill of representing
others in the public forum, working to persuade others toward a particular outcome.
That brings us, of course, to
Socrates the first of many defendants who
chose to be self-represented and we can
see that even then going pro se tended to
be a bad idea.
I want to come back to Socrates, at least
as Plato gives him to us, in a moment, but
the image of the lawyer moving forward in
history does not change much. Rome gives
us Cicero. Later we can look to Thomas
More and Francis Bacon. In more recent
times, we have enshrined the early years
of Abraham Lincoln as the Prairie Lawyer.
Before the recent Lincoln movie, the most
famous Lincoln on the screen was John
Ford’s Young Mr. Lincoln, in which Henry
Fonda portrays the nascent Lincoln trying
his first felony case, which he wins through
an effective cross-examination.
You can name dozens of other examples,
both in reality (Clarence Darrow, Thurgood
Marshall, Alan Dershowitz) and in fiction
(Daniel Webster—the only true adversary
for the devil—Rumpole, Perry Mason, Ally
McBeal, Faulkner’s Gavin Stevens, and of
course, Atticus Finch).
When the public says, “She is a good
lawyer,” they usually mean what we refer
to as a good trier, or as Deane Davis called
it a “fighting lawyer”—advocates who
can maneuver the trial process, apply the
rules of evidence, find points of irregularity for cross examination, and tell their client’s story. Yet, at the same time, the public often has little sense of what a trial attorney does. Think about Perry Mason. Every single case ended with a witness breaking down and admitting guilt or revealing
the guilty party. Every time! Look at Young
Mr. Lincoln, too—same thing right out of
the gate. No wonder he became president!
When was the last time you had a witness
do that?
Such misperceptions on the public’s part
have always been troubling, but they have
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been acceptable so long as we as attorneys have been willing to keep the sense
and sensibility of trial process alive. But
that function has dimmed in recent years
as fewer and fewer members of our profession try cases or embrace the role of lawyer
as a trial advocate.
This represents a significant problem for
a profession that defines its existence in relationship to the court and its primary role
as officers and advocates. For some, the
answer is better education, but to them
I would recommend the speech that Justice Robert H. Jackson made in 1950 at the
dedication of Stanford Law School’s expansion. He noted that:
It may be that the law school emphasizes preparation for appellate work at
the expense of preparation for the trial court. I sometimes sit in moot court,
through which our schools are trying
to teach advocacy. I find young men
carefully trained, their research exhaustive, their arguments penetrating.
But they usually argue some great issue for which they are not likely to be
employed during the first twenty years
of practice. Then, too, they are adapting themselves to an appellate court,
which no case of theirs is likely to reach
for some years. But more unrealistically, they have been given the complete
facts of a hypothetical case. The difficulty with this is that they are started
at the wrong end of the process. Most
lawsuits are ended as soon as there is
a final settlement of the facts. The success or failure of young lawyers will be
determined by the way they investigate and prepare and present cases
to the triers of fact. A surprising number of cases every term are thrown out
of our Court because counsel in the
trial courts have not made adequate
records, have not preserved crucial
questions, or have not asked appropriate instructions or findings. The place
to win an appeal, as well as a verdict, is
in the trial court.1
What has changed in the past sixty-five
years is what has not changed. Despite law
schools providing more internships, externships, and clinical programs, most legal education still does not go to trial advocate
training. The system continues to mint
THE VERMONT BAR JOURNAL • SUMMER 2015
graduates that have all the skills to become
an associate at a large law firm where they
may begin to observe the actual practice
of law in all its grueling, slow, and brickbuilding glory.
How then is a trial lawyer formed? What
goes into making a good trial lawyer? To
answer these rhetorical questions, we
should start with a few principles:
Trial Advocacy as Performance
First, trial advocacy is difficult, if not impossible to teach in law school. For the reasons outlined by Justice Jackson and others, trial work is about the slow accretion of
information, the building of a case, learning how to read other people, including
your client, to know when they are omitting, exaggerating, or outright lying. It is
also the outward display of communication
and personality that takes what I will call
the “trial data” and expresses it in a manner that a jury can hear and understand.
These are not teachable skills. These are
performance skills that must be learned.
They must be practiced and approached in
a way that builds those skills.
Trial work depends on what others perceive—the performance aspect of a trial.
Too often, we hear ourselves or opposing
counsel apologizing for how the jury is responding to them. How many times have
we said or heard the following: “My client
is the person on trial. Do not base your decision on what you think of me.” If we are
saying this, it is too late.
Perhaps the number one reason why
we fail at the performance aspect of a trial is that lawyers, like everyone, else suffer from stage fright. Some lawyers litigate
defensively like an actor carrying a copy
of her lines with her. Some lawyers litigat