Advocacy from the human perspective: advice for young appellate lawyers.

• Author: Lavine, Douglas S.

1. INTRODUCTION

   I have long thought that in their understandable and necessary desire to transform law students into young lawyers who are rational, linear thinkers, law schools risk draining some of the lifeblood, originality, and spontaneity out of their students. They graduate with finely honed intellects and a solid understanding of essential legal principles, but too often they enter our profession without understanding that advocacy at the highest levels involves a good deal more than our logical, reasoning minds.

   Of course there is absolutely no substitute for exhaustive preparation when it comes to appellate argument, and anyone who tells you otherwise is simply misinformed. But recent neuroscience research confirms that the process of decisionmaking is more elaborate than--and less rooted in--the rational, analytical processes that we lawyers tend to focus on. (1)

   Effective appellate advocates must take into account a whole host of instincts, intuitions, traits, and abilities that are not easy to define and categorize, and that do not always dovetail with the linear, logical thinking that we lawyers typically rely upon. Many of us overlook or minimize the need to nourish the human instincts and intangibles that can separate the merely well-prepared advocate from the advocate whose arguments will resonate with the court. Indeed, my thirty-five years of studying, preparing for, participating in, teaching, observing, and writing about effective arguments have persuaded me that to be a successful advocate, it is essential to develop skills and traits that are less tangible than, but just as important as, the logic-centered analytical skills taught in law school. These traits and skills include things we don't generally study or talk about in the legal profession: humility; common sense; empathy; curiosity; humor; active listening; the capacity to respond to an unexpected turn of events; the ability to pick up cues being communicated by other participants in the process; and perhaps most important, self-awareness. I often urge beginning appellate advocates to pay careful attention to these less obvious components of effective advocacy and nourish their growth so that this important skill set becomes part of their repertoire.

   1. An Instructive Example

      The example of effective advocacy that best illustrates my thesis did not take place in a courtroom. And yet it demonstrates the fundamental principle of empathic and persuasive advocacy: It is respectful, not coercive, at its core.

      This sublime example appears in the New Testament, (2) so take a trip with me in your imagination: It is about 2000 years ago and we are in a hot, dusty, oppressed little corner of the Roman Empire called Judea. A dramatic scene is unfolding in front of our eyes. A woman has been found guilty of adultery, for which the required punishment is death by stoning. The crowd surrounding the woman is ready to carry out the sentence. The tension is palpable.

      Into this scene strides Jesus of Nazareth. He does not have much time to advocate for the adulteress, and he has zero margin for error. He understands the religious beliefs of his audience, and he knows that they think carrying out this grisly sentence is not only appropriate, but required by religious law. And he knows that the stoning is imminent.

      He has one chance to save this woman's life. What is the right argument here?

      1. The Conventional Approach

         With our present-day values and sensibilities, and our law-school training, we would probably recommend conventional legal arguments. We might suggest, for example,

         My friends, listen to me. Killing this woman serves no valid societal purpose. Blessed are the merciful. Let her go.

         This is what we today would call a policy argument. And it might work. But imagine that someone in the crowd then yells out,

         Oh, it serves a very real purpose: Aside from punishment, stoning her will prevent this conduct in the future.

         That is a pretty good counter-argument based on deterrence. Seeing the stalemate, we might then urge an approach like this:

         Townspeople, hear me: Killing this woman is harsh and cruel and brutal. Blessed are the peacemakers. Let her go.

         That's another policy argument. And it too might be successful. But then suppose somebody else cries out,

         Well, it may be harsh and cruel and brutal, but it's what the law has always required.

         That's a counter-argument of a type very familiar to modern-day lawyers: It's based on precedent. And like the counter-argument based on deterrence, it too is fairly persuasive.

         So we are stalemated again. What to do?

      2. The Empathic Approach

         It turns out that Jesus of Nazareth--who never went to law school--didn't base his argument on policy or precedent or deterrence. Instead, he fashioned one of the most effective arguments recorded in history by calling on his knowledge of the human heart. (3) Watch in your mind's eye how the scene of the adulteress and the angry crowd plays out:

         They say unto him, Master, this woman was taken in adultery, in the very act. Now Moses in the law commanded us, that such should be stoned: But what sayest thou? This they said, tempting him, that they might have to accuse him. But Jesus stooped down, and with his finger wrote on the ground, as though he heard them not. So when they continued asking him, he lifted up himself, and said unto them, He that is without sin among you, let him first cast a stone at her. And again he stooped down, and wrote on the ground. And they which heard it, being convicted by their own conscience, went out one by one, beginning at the eldest, even unto the last; and Jesus was left alone, and the woman standing in the midst. When Jesus had lifted up himself, and saw none but the woman, he said unto her, Woman, where are those thine accusers? Hath no man condemned thee? She said, No man, Lord. And Jesus said unto her, Neither do I condemn thee: go and sin no more. (4) With one sentence--"He that is without sin ... let him ... cast a stone at her"--Jesus quelled the crowd and saved the woman. As advocacy goes, it doesn't get any better than this.

   2. Analyzing the Power of the Empathic Approach

      What was so powerful about this 2000-year-old appeal to an angry crowd? What can we as modern advocates learn from it? We can learn that great advocates do not prevail only by making logical, linear, analytical...