Speak the truth. That is the first principle of effective advocacy. A lawyer engaged as an advocate must find some truth that can form the centerpiece of a theory of the case—the truth that, given the facts and the law, has the potential to yield the best attainable result for the client. That truth might be a fact or set of facts, a legal principle, a procedural point, a period of limitations, an interpretation of case law, or some combination of those things. That truth is a pearl of great price, a treasure buried in a field, for which the lawyer must search by investigating the facts and researching the law. Of course, methods and techniques of presentation have an important place in advocacy. However, the methods and techniques of presentation, whether oral or written, are secondary to the first principle: speak the truth.
The alternative is to ascertain what positions, if adopted by the court or jury, would yield the result that the client desires and then to search for arguments that support those positions. No doubt, this alternative is often adopted by lawyers; but, even aside from the moral ambiguities inherent in this approach to advocacy, it is not the approach that is more likely to persuade the court or jury. Speaking the truth—the truth that has the potential to yield the best result possible for the client given the facts and applicable law—not only is the right thing to do but also is more effective. That approach is more likely to persuade the court or the jury.
If speaking the truth is the first principle of effective advocacy, conviction is advocacy’s most important ingredient. Again, while a good advocate will use methods and techniques of persuasion, no method or technique will make the argument as convincing as will conviction. The advocate who wants to convince must speak with conviction. The advocate who is speaking the truth, and knows it, will speak with more conviction than the advocate who has adopted a position and then searched for arguments to support that position.
Every lawyer has been taught the importance of candor. It is self-evident that speaking the truth is necessary for candor. Adopting positions and then searching for arguments to support those positions tempts the advocate to eschew candor. Persuasion depends not only on the points for which the advocate argues but also on the points that the advocate is willing to concede. The advocate who speaks the truth will have, ipso facto, the candor to concede points on which the opponent is correct. The advocate who adopts positions favorable to the client and then searches for arguments to support those positions will find it more difficult to concede points that should be conceded.
Finding the truth that can form the centerpiece of a theory of the case, rather than adopting positions and then searching for arguments, has a further consequence: Namely, it produces a more focused and more concise argument. In the vast majority of cases, the decisive issues are very few; usually, no more than two or three. Adopting positions and then searching for supporting arguments is an approach that lends itself to contesting every possible point. A complaint with nine or 10 counts, or a brief arguing nine or 10 issues, usually results from one of two causes: either the lawyer is arguing points that are not decisive (which distracts the decision-maker from the issues on which the case turns), or the arguments on some points lack merit. Or both. But the lawyer who speaks the truth as the centerpiece of a theory of the case—the truth that, given the facts and the law, has the potential to yield the best attainable result—not only will be more candid but also will focus the argument on the decisive issues. Such a lawyer is less likely to argue points on which the case does not turn or to argue positions that lack merit.
It follows from what has been said that speaking the truth that, given the facts and the law, might yield the best attainable result makes the advocate more credible. The advocate’s credibility flows, obviously, from the advocate’s candor and conviction. But that credibility also flows from the fact that the advocate focuses the argument on decisive issues and does not assert arguments on multiple points that are not decisive or that lack merit. Credibility is gold for an advocate; without it, the advocate is destitute. Credibility and speaking the truth, needless to say, go hand in hand.
It also follows that speaking the truth that, given the facts and the law, might yield the best attainable result leads to greater clarity. At a minimum, that approach makes clear what the decisive points are; it focuses the court or jury on the centerpiece of the advocate’s theory of the case rather than on peripheral or secondary issues. More than that, the advocate who is speaking the truth will strive to make clear what that truth is and why it is true. “If only the judge or jury understands,” the advocate will think, “they will be persuaded”—which will focus the advocate on clarity. Too often, lawyers (and, I should add, judges) fail to make clear precisely what their contention is and why that contention is true. Confusion is the mortal enemy of persuasive advocacy; clarity is its best friend. Taking positions and then searching for supportive arguments, in contrast to speaking the truth, is more likely to produce confusion; speaking the truth is more likely to produce clarity.
In summary, speaking the truth is not only the right approach to advocacy, morally and ethically, but also the approach more likely to be persuasive. It results in the five Cs of effective advocacy: conviction, candor, conciseness, credibility, and clarity.
