Client Advocacy Isn’t Personal: A Lesson from the National Trial Advocacy Program
The Bencher—March/April 2019
By Edward S. Robson, Esquire
For those who practice primarily in civil litigation, there are regrettably few opportunities to hone courtroom skills—and even fewer to receive constructive feedback from knowledgeable colleagues. The National Trial Advocacy Program, which I recently completed, provides both. The three-day program is hosted by the American Inns of Court in conjunction with the Inns of Court College of Advocacy in London. It is conducted by a group of experienced English barristers, the small subset of British attorneys whose practice consists exclusively of litigation.
The program relies on the “Hampel” method, a six-step training methodology widely used in England and Wales. It requires the barrister trainers to provide detailed criticism on specific facets of participants’ mock opening and closing statements, oral arguments, and witness examinations. Participants benefit both from receiving criticism of their own performances and those of their peers.
Although the trainers’ comments are meant to address particular issues in a participant’s performance, some comments have broader application that all litigators should consider. One such criticism is to avoid injecting personal opinion into courtroom advocacy. Indeed, since the program, I have noticed that this a common practice for many attorneys. Attorneys that inject their personal opinion and, by extension, themselves into their advocacy create a variety of risks for themselves and their clients.
Attorneys inject themselves into litigation anytime they do something that invites an evaluation of their personal credibility, skill, or judgment. Although there are a variety of situations in which this can arise, it commonly comes up in oral argument and closing statements. The practice is disfavored in both contexts, albeit for different reasons and with different results.
Injecting personal opinion into oral argument often takes the form of “I think” statements. “I think the prosecution has failed to present a prima facie case.” This rhetorical style makes for unpersuasive and anemic oral advocacy. “I think” or “I believe” invites a court to think—and perhaps opine—“I don’t care what you think, Mr. Robson.” Saying “I believe Jones v. Smith requires XYZ” invites a court to question the judgment of the attorney in a way that saying “Jones v. Smith requires XYZ” does not. Moreover, like the passive voice, it suggests a lack of confidence and obscures the source of the information: “I do not think that this is a breach of the agreement” is less informative than “the plain language of section 1.1 permits the client to terminate the agreement and so there is no breach.”
Vouching for a client or referencing personal experience at trial is another particularly perilous way attorneys can inject themselves into litigation. Vouching for a client by claiming “I would never represent a client that would do XYZ” invites a jury to evaluate the scruples of the attorney in a way that saying “Mr. Jones credibly testified that XYZ” does not. Introducing personal experiences of the attorney converts the attorney from an advocate to a litigant.
Using these techniques can be the basis for reversal of a jury verdict and violates the rules of professional conduct. A number of state and federal courts have reversed jury verdicts after attorneys injected their personal opinions, often in bizarre ways. For example, the Eighth Circuit Court reversed a jury verdict in a sexual harassment case after plaintiff’s counsel provided the jury with an account of the counsel’s experience of being sexual harassed by her law school professor. A Florida appellate court reversed a jury verdict after counsel explained how his client’s “day-in-the-life video” gave the counsel nightmares. This type of conduct also violates Rule 3.4(e) of the American Bar Association Model Rules of Professional Conduct, which prohibits attorneys from claiming personal knowledge of the facts or stating their personal opinions at trial.
Avoiding personal commentary in court proceedings is more than a trial practice technique. It is the tip of a larger lesson on how to reduce stress in sharp-elbowed litigation. Injecting yourself into litigation can take a subtle toll on you. If you take the client’s problems so personally that you are willing to put your own credibility on the line, you have likely compromised your ability to give objective advice. It causes you to suffer through litigation in the same way your client does. Every obnoxious move by opposing counsel and every adverse ruling becomes a personal affront that begets stress, anxiety, and possibly unethical retaliatory behavior. Clients, attorneys, and the entire litigation process benefit when attorneys cultivate and maintain a professional detachment that allows them to evaluate both the strengths and weaknesses of their case and to dispassionately assess the behavior of the adversarial party.
While it is easy to recognize the risks of getting personal in litigation, refraining from such actions requires a conscious, conscientious effort. The world has become a less formal place, and courtroom advocacy is not immune from the trend. Influenced by unrealistic dramatic portrayals of attorneys in books, films, and television, clients expect their attorney to assume the client’s problems as if they were their own. Clients sometimes misconstrue detachment as disinterest and interpret undisciplined passion and ad hominem arguments as effective advocacy.
The British tradition of more detached, but pointed, courtroom advocacy sets a helpful example for American lawyers. Small changes, such as avoiding personal opinion in the courtroom, can help counsel maintain the separation that makes for effective advocacy. Excising the “I thinks” and similar statements from courtroom vocabulary can make for more persuasive arguments. Avoiding references to the client as “we” and to the arguments as “ours” can help to create the space necessary to consider the issues, rather than the personalities. If a client’s case depends on the credibility of a witness, counsel should endeavor to have the fact-finder evaluate the credibility of the witness, not the attorney. While no panacea exists, such conscious changes remind both litigator and client that we serve our clients best when we represent them and not ourselves.
Edward S. Robson, Esquire, is the managing shareholder of Robson & Robson and focuses his practice on litigation arising from commercial transactions, disputes among business owners, unfair competition, and mergers and acquisitions. He is a member of the Villanova Law J. Willard O’Brien American Inn of Court in Philadelphia, Pennsylvania.