Introduction: A New Way of Looking at the Art of Advocacy

• Jurisdiction: United States

Introduction: A New Way of Looking at the Art of Advocacy

During one of my first experiences in a "fancy" restaurant, my mother taught me that if I dropped a fork, I should not pick it up, that I should put the napkin on my lap, and I should break a bread roll into small pieces rather than bite into it. Some things we do because we were taught that way. As lawyers, some things we do because we observed others use techniques that proved successful—at least for them. "Never do this." "Always do that." Other things we do because we are following the instructions of our mentors. But shouldn't we ask ourselves why these anecdotal methods and practices are taught and followed? And shouldn't we question the practice of using a technique if we don't really understand why we are doing it or how effective it is?

There is a story about a newly married couple who were preparing dinner together. The wife, who was following a family recipe for pot roast, cut the ends off, and her husband asked why. She replied that she was doing it the way she was taught by her mother. Her husband persisted, "But why?" She said, "I don't know, but I'll call Mom and ask." Her mother explained that she cut the ends of the roast because that was how she was taught by her mother. "But why?" her daughter asked. "I don't know," her mother told her. "Why don't you ask Grandma." When she visited her grandmother the next weekend, she related that she was following the family recipe, including the step of cutting the ends off of the roast. "Oh, honey," her grandma said, "I cut the ends off because it wouldn't fit in my roasting pan if I didn't."

Our ancestors learned from anecdotal experience. Their daily routine of surviving, hunting, and gathering did not include science. They learned from experience that some plants would cause death if eaten, but others might aid in digestion. Anecdotal experience consists largely of reports or observations of usually unscientific observers. That is the process by which most lawyers still learn trial advocacy. Successful techniques are experienced, shared, and then used by others who teach "this is how to do it, or not do it." Although experience-based advice can be worthwhile, it is important for trial lawyers to understand the cognitive science that leads to successful persuasion. Why? Have you ever lost a case and blamed stupid jurors who ignored the evidence? Ignoring certain things is an aspect of how people process information. Psychologists have been...