Final Notes on Trial Advocacy from Judges

• Author: Faith Dianne Pincus
• Profession: Attorney and former Federal Law Clerk
• Pages: 159-164

159

CHAPTER FIFTEEN

Final Notes on Trial

Advocacy from Judges

I, and my guest authors, have covered quite a bit in this area. However,

I want to provide a few more notes about trial advocacy, gleaned from

interviews with judges and justices over the years.

Golden Rule #1: Passion Is Your Friend

Judges and juries will, presumably, rely more on the facts of the case and the

law than anything else, but it never hurts to believe that the trial advocate

has some skin in the game—that he or she truly believes that his or her

cause is just and that the client’s case should prevail. As Jean Giraudoux,

the French dramatist, once said: “The secret of success is sincerity. Once

you can fake that, you’ve got it made.”

All kidding aside, showing some passion and conviction during the

course of your trial signals to the jurors and the judge that you aren’t just

up there pleading your case because it happens to be your job. Letting

your emotions show (in moderate doses) clues your audience in that you

actually care about your client and that you believe your case deserves to

prevail. As the late United States District Court Judge William Hoeveler

explained to me: “I like a little bit of emotion .... All things being equal,

of course, if a lawyer gets his back into his argument and really feels it,

that’s a good thing.”

When I asked Judge Hoeveler about when it is most appropriate to display

this kind of emotion, he didn’t hesitate: “The opening statement.” He said:

An opening is not argument, and I have to point that out. But the opening

statement is one of the most important parts of a lawyer’s offense or defense ...

if it is properly presented, the opening sets the tone and presentation of

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