Young lawyers learning about advocacy need to understand how judges think if they are to master the skill, says Reuben Guttman.
Young advocates or trial lawyers often labour under the conception that communication is a one size fits all effort. Be smooth, don’t be nervous, be flamboyant, and engage in fanfare. Really? For my trial advocacy students at Emory Law School, this is sometimes their vision of a trial lawyer. Yet advocacy is a two way street. Before an advocate formulates the content and form of his or her message, the most important question to ask is “Who is receiving the message?” Advocates, or trial lawyers, are teachers. Judges and juries are their students. How does the trial lawyer, as a teacher, deliver a message that resonates with each particular student?
Last year at Emory Law School, I convened a panel of four judges with the hope of giving students an insight into their lives. It was enlightening for the students to learn that these judges had dockets ranging from a couple hundred to several thousand cases. The students learned that these judges were tasked with deciding matters that they had never studied in law school. Their support ranged from one to several law clerks and the law clerks themselves were all recent law school graduates. This group of judges ranged from civil cases to criminal matters with divorces, large scale securities class actions, business disputes, discrimination cases, and maritime matters in the mix.
Breaking the monotony
There is a saying that justice is blind. And of course there is a perception that judges are powerful – which they of course are – and that they know everything. While sitting in federal court a couple of weeks ago, I was watching a judge hear a dozen motions before it was my turn to argue. He was jovial. He was witty. He engaged the litigants with humour. I liked him. I had seen this behavior before with jurists. I realised of course that some judges usually do this to break the monotony of the job. They are human beings. As I sat and watched this particular judge, I thought about him sitting high on his bench in a courtroom with 35 foot ceilings and the walls adorned with paintings of judges who had preceded him. I thought about why the US government spends so much on these ornate courtrooms. I realised that without these accoutrements, judges would seem like mere mortals. And of course, the proceeding itself would not be cloaked in the same solemnity.
For the advocate, it is important to understand that at the end of the day, their messages will be evaluated by humans; whether they are judges or jurists. They will have lifetime experiences, families that they go home to, perhaps pets that they feed, and like other humans, they will have had their successes and failures. They will have fears and concerns.
If there is a takeaway from all of this, it is that advocacy is a two way street. What you may think is the right message, or form of message to deliver to the decision maker, may not necessarily be the one that resonates. What you may think is the right style may not be appropriate for a particular audience. This is just something to think about; communication is a two way street.