The art of boring advocacy

What can a new barrister like me learn from the mountains of what has been written about advocacy? Quite a lot, I think.

A big theme you will come across is to ask: how listenable is your advocacy? Or, put in a way that refers to one of my favourite quotes: do you operate in dulcet tones, speaking as Gary Provost wrote:

"This sentence has five words.

Here are five more words. Five-word sentences are fine. But several together become monotonous. Listen to what is happening. The writing is getting boring. The sound of it drones. It’s like a stuck record. The ear demands some variety.

Now listen.

I vary the sentence length, and I create music. Music. The writing sings. It has a pleasant rhythm, a lilt, a harmony. I use short sentences. And I use sentences of medium length.

And sometimes, when I am certain the reader is rested, I will engage him with a sentence of considerable length, a sentence that burns with energy and builds with all the impetus of a crescendo, the roll of the drums, the crash of the cymbals–sounds that say listen to this, it is important.”

On the other end of the spectrum, might you have fallen victim to something like either of the following critiques?

“Walk into any state or federal jury trial from Alaska to Florida, or from Maine to Hawaii, and you will likely discover the long-awaited cure for insomnia. Bottle it, sell it on a TV infomercial, and you could get rich. So what is this cure? It is boredom: ‘the sounds of lawyers droning on and on with their technical arguments, their redundant questioning of reluctant witnesses, the subtle points which are relevant only to them.’ George Bernard Shaw might as well have been describing modern ‘litigators’ when he observed that ‘[t]he single biggest problem in communication is the illusion that it has taken place.’ The vast majority of lawyers do not communicate effectively with jurors.” (Judge Mark W. Bennett, ‘Eight Traits of Great Trial Lawyers: A Federal Judge’s View on How to Shed the Moniker “I am a Litigator”’ (2014) 33(1) Review of Litigation 1, 1–2).

“Yet pity, please, the jury, entrapped in a strange and sterile place called a courtroom in which nothing grows and where no sounds can be heard, not the meadowlark’s song, not the lilt of a distant boy’s whistle, and where the good familiar odors of life are missing, the musty smell of last year’s leaves and the fresh odor of new buds in the springtime. Consider this jury caught there. See the lawyers beating away at them with mean monotonous sounds as if the jurors were their enemies. See the lawyers bent on killing them a little at a time, torturously stuffing those long, immensely dead words down them like one force-feeds a goose. See those poor people swallowing whole strings of dreary verbiage at a time—with no place to run—no place to escape. Surely none but the most malevolent would inflict such pain on their fellow man, the perfect pain of unbounded boredom”. (Gerry L. Spence, ‘How to Make a Complex Case Come Alive for a Jury’ (1986) 72(4) ABA Journal 62, 64).

Robust criticism, but certainly not isolated. As stated by the late William H. Rehnquist, former associate justice of the United States Supreme Court:

“[W]hen it comes to oral argument, the more flesh and blood you can insert into it, as opposed to a dry recitation of principles of law or decided cases, the more interesting and effective that argument can be”. (‘Oral Advocacy’ (1986) 27 South Texas Law Review 289, 299).

The underlying message: brevity is a virtue. Taking another passage from a former associate justice of the United States Supreme Court:

“It might seem that a ten-point argument has been overanalyzed. In reality, it has been underanalyzed. Counsel has not taken the trouble to determine which arguments are strongest or endured the pain of eliminating those that are weakest” (Antonin Scalia and Bryan A. Garner, Making Your Case: The Art of Persuading Judges (Thomson/West 2008))

In other words, as Blaise Pascal famously wrote, back in 1657: ‘I have made this letter longer than usual, only because I have not had the time to make it shorter.’

Returning to Spence, he did not stop there, but painted a picture explaining how we ought to raise developing orators:

“We should have sent our young warriors off to the poets and the bards and wild painters and dancers. We should have taken them to the country farm sales to hear the cry of the auctioneer who can sell us a bucket of accumulated junk as priceless treasure. We should have left them with the old Indian who would have taught them how to hunt and kill with grace and love” (p. 63).

If it is too late for you to spend your childhood in one of those uninhibited environments, do not despair, for advice is at hand:

“Most of all, lawyers must be storytellers. That is what the art of advocacy comes down to—the telling of the true story of one’s case. Drive down the highway in your car addressing the jury in the rearview mirror. Tell the story, the alarm on your watch set for three minutes. Tell them why you care about your client. When you arrive home, gather up your children and tell them a bedtime story for practice, for if you can explain it to your children then you finally have acquired the skill of speaking to a jury. I say this not out of disrespect for the jury but for the lawyer who cannot speak to children. It takes little skill to mouth the puckery brine of legal jibberish. But it takes skill, indeed, to relate a clear and understandable tale that our children will cherish.” (p. 65).