By Bruce Bryan | Bryan Appeals
As a young lawyer, I wondered what made great advocates great. Were the skills of an effective advocate innate to them or could they be learned?
John W. Davis was a skilled advocate in the early twentieth century. He rode circuit through the mountains of West Virginia and rose to become Solicitor General of the United States. After forming Davis Polk, the New York City Bar Association asked him to tell their members how to become effective advocates. His answer was disappointing in its simplicity, yet complex in its application. He said the winning advocate understands that his object is to persuade.
“Whatever tends to attract judicial favor to the advocate’s claim is useful. Whatever repels it is useless or worse.” To Davis, “the whole art of the advocate consists of choosing the one and avoiding the other.” Most importantly, the skills of an effective advocate could be learned.
In the past twenty-five years I have learned how to make effective written and oral arguments to trial and appellate judges. I have researched and applied the advice of the great lawyers and judges. As an Adjunct Professor at Cornell Law School, I teach a course on Advanced Persuasive Writing and Oral Advocacy. It has honed my skills and taught me how to teach others. There are many skills possessed by effective advocates. I will mention three.
First, effective advocates know their audience. You must understand how judges think. Like an archer who pulls back a bow and aims an arrow at a target, you must have one aim – to persuade the judge to rule in your favor. Measure all you say and do by this standard. Judges think analytically but are also human. They are persuaded by logic and reasoning yet can be affected by sympathetic or adverse facts. Focus judges on the best reasons to win. Accurately emphasize strengths and explain weaknesses in your position.
Second, effective advocates understand principles of psychology. Among other things, apply the rule of primacy which holds that what is said first has great power. Employ the rule of recency which holds that what is said last is most memorable. Use the rule of repetition in moderation. Repeat a memorable phrase to make a lasting impression.
Third, effective advocates make the complex simple. You can’t persuade if you’re not understood. Judges are busy and their time is limited. Arguments must have a “blue line.” I call it the “blue line” because it comes from a story I was told by a local pastor. His wife had a brain tumor and the best chance to save her was an operation performed by a renowned neurosurgeon in Boston. Among other things, the couple was afraid they wouldn’t find the neurosurgeon’s office in the complex of buildings where the surgery was to be performed. The day came and they traveled to Boston. With trepidation, they entered the hospital’s main doors, went to the receptionist’s desk, and asked how to find his office. The receptionist replied: “It’s very simple. You see the elevators over there,” she said as she pointed. “Take an elevator to the fifth floor, get off, look down at the floor and you’ll see a painted blue line. Follow the blue line and it will take you right there.” They did as she said and easily found his office. A legal argument must be that simple to follow.
We each have the ability to be great advocates, whether to judges or others. To persuade judges, learn how they think – what attracts and what repels. Logic and reason play a key role but so does psychology. Because the chance to persuade is brief, make the complex simple and show judges the “blue line” to winning.
Beginning this April, Bruce will teach a series of CLE classes for the OCBA entitled “The Winning Advocate | Persuasive Writing and Oral Skills in Trial and Appellate Courts.”