I hope, dear reader, that the deep irony in the title of this column, “Advocacy from the human perspective,” is not lost on you.
Let’s be frank — from whose perspective, if not a human’s, could we possibly view advocacy, anyway? To the best of our knowledge based on our present understanding of the animal kingdom, no other species regularly engages in legal advocacy. Or engages in advocacy at all. So what’s with the title?
Now that I hopefully have yanked your attention away from the plethora of quotidian tasks and pursuits that occupy you, I will explain.
My thesis is simply this. In an understandable and necessary desire to transform law students into rational, logical, linear thinkers, law schools risk draining the lifeblood and spontaneity out of law students.
It is without question essential that lawyers hone their intellect and knowledge of the law as they proceed through their careers. But it is my contention that advocacy at the highest levels involves a good deal more than our logical, reasoning minds. It is my contention further that effective advocates should, and must, take into account a whole host of instincts, intuitions, traits and abilities that are hard to define and that do not always dovetail with the kind of linear, logical thinking we lawyers are trained to focus on. These traits and skills include things we generally don’t talk about in the legal profession — things such as common sense, creativity, humility, curiosity, self-awareness and, most important of all, understanding human nature and the human heart.
Lawyers are well advised to pay careful attention to these and other less obvious components of effective advocacy, and nourish them, if they want to maximize their persuasive power.
A NEW TESTAMENT EXAMPLE
One of the most sublime examples of my thesis is found in a nonlegal setting in the New Testament. Imagine it is about 2,000 years ago and you are in a hot, dusty corner of the Roman Empire called Judea. A dramatic scene unfolds. A woman has been accused of adultery. The required punishment is death by stoning. The crowd is anxious to carry out the sentence. The tension is palpable. Into this scene strides Jesus of Nazareth. He understands the belief system of his audience and he knows that they think carrying out this grisly sentence is not only necessary, but required by law. He has only seconds to act.
If Jesus had undergone the sort of legal training offered in modern law schools, he might have based his argument on policy: “My friends, listen to me. Killing this woman serves no valid societal purpose. Blessed are the merciful. Let her go!” Or he might have based his argument on the simple proposition that killing is brutal and wrong and establishes a bad precedent.
But Jesus never went to a modern-day law school. He didn’t base his argument on policy or precedent. Instead, he fashioned one of the most stunning and effective arguments in history not by resorting to logic but by calling into play his knowledge of the human heart. Here is how this gut-wrenching scene plays out in the Book of John, Chapter 8, verses 4 through 11:
“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?…But Jesus stooped down…and…said…, He that is without sin among you, let him cast a stone at her.…
“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.”
With one sentence — “He who is without sin, let him cast a stone at her” — Jesus has quelled the crowd and saved the woman. As advocacy goes, it doesn’t get any better than this.
Let’s stop the action and analyze this in slow motion. What was so powerful about his appeal to the crowd? What can we as advocates here, today, learn from this spectacular example of effective advocacy which is two thousand years old?
I submit to you that wrapped up in this one story is a key lesson that all of us should heed. The lesson is simply this: Great advocates do not prevail only by making logical, linear, analytical appeals to their audience. Great advocates prevail because they have cultivated the intuitive side, the empathic side, the feeling side of their character and personalities. They are perceptive students of human nature, what makes people tick, and the human heart.
I submit to you that Jesus’ appeal was so powerful — and let’s not forget that group dynamics plays a big part in this story — because Jesus’ challenge was the equivalent of daring people to say that they are perfect, and to shout it out in front of their friends and family. Let’s be honest — only a liar or a charlatan would have the nerve to stand up in front of a peer group and declare his or her perfection. Any one of you readers want to give it a try?
Jesus understood the human heart so well in this story that he used one pointed, poignant question to save the woman’s life. It goes without saying that I am using the example of the adulteress not to make any religious or theological point whatever. I use it because it provides a vivid and compelling example, from the world’s sacred literature, of effective advocacy.
Other examples can be found in the literature of every faith tradition, and the world’s great secular literature.
Now at the risk of being repetitive, let me say again: I am not minimizing the need for rigorous preparation or mastery of the facts or of guiding legal principles. These things, rooted in the kind of analytical and logical thinking and training our law schools offer, are absolutely essential. They are the bedrock of effective advocacy and without them you cannot succeed. But I do contend that developing one’s reasoning and intellectual and analytical side does not give you the most complete set of tools that you need in your advocacy toolbox.
I am a huge New York Mets fan. I now live in West Hartford, Conn., the southern tier of Red Sox nation, and I delight in using hackneyed sports analogies. The more banal, the better. So here is a sports analogy that illustrates my point. Forgive me if you’re not a baseball fan.
A lawyer who has failed to develop the more intuitive, nonanalytical, empathic side of his or her skill set is like a pitcher who can throw a 98 miles per hour fastball, but has no curveball and no slider and no changeup. The advocate who fails to nourish the other side of the toolbox — the skills, traits, abilities and intuitions that often go overlooked in the legal world — is left with only one pitch. If you have only a fastball, good hitters know what pitch to expect and can often hit it out of the park.
THE NONANALYTIC SIDE
Let me put this another way. I think in its zeal to teach law students how to think like a lawyer, and act like a lawyer, law schools — and law firms as well — sometimes send the message that young lawyers should stifle their true selves, act like someone they are not and ignore the care and feeding of the nonanalytical side of their personality.
As they progress in the legal profession, I’m afraid some law students are led to believe that if they show too much compassion or common sense or simple decency, they will be ridiculed for not being a “serious” person, or an “aggressive advocate,” or not being willing to “go for the jugular.”
I remember one law school class in which a professor asked why torture should not be permitted. This was more than two decades prior to the terrorist attacks of September 11, 2001. Various students offered answers such as “torture violates international law,” or “you cannot trust the information obtained from someone who gives it under duress.” Finally, one student put his hand up and blurted out, “Torture should not be permitted because it is wrong.”
That was the right answer. I’m here to tell you that if you have come to the conclusion that accessing your intuition and your own personal, idiosyncratic style — what makes you you — is incompatible with effective, zealous advocacy, rethink this. You are dead wrong. More on these topics in a later column.
Douglas S. Lavine, a judge on the Connecticut Appellate Court, is the author of Cardinal Rules of Advocacy (National Institute for Trial Advocacy 2002) and Questions From the Bench (American Bar Association Section of Litigation 2004). Much of this column is derived from a speech presented at Widener University School of Law in Wilmington, Del., this past May. Attorney John Tener provided assistance in formulating these thoughts and words.