Monday, June 29, 2009

Legal Advocacy: The Importance of Credibility

It cannot be stressed enough just how important credibility is when you are a lawyer. I'm not talking about the credibility of witnesses, though that is obviously also an issue of great importance - either bolstering or attacking it, depending on the circumstances. I'm talking about the credibility of the lawyer - both with the judge and the jury (if relevant). I'd say it is most important with the judge or judges (like for an appellate panel).

If you read any (good) treatise on good legal advocacy, this is stressed heavily. But what does it mean?

A layperson may not realize that it is often one of the parties who actually writes a judge's order. You may go to a hearing to argue a motion or an oral argument in circuit court on appeal from an administrative matter and, at the close of the hearing, if you win, you will be asked to write the order that the judge will sign. Often those are basic "you win for the reasons stated in the record" kind of orders, but sometimes, it is a more complex issue. Thus, what you really want is to write your own order and submit it with your motion with the intention that the judge will sign it. And no judge is going to sign your order unless she or he finds you credible in your advocacy.

A total scorched earth approach, questioning and nitpicking every single small point does not lend itself to credibility. Then you look like you are simply arguing for the sake of arguing and opposing for the sake of opposing, and aren't willing to cede any ground, even that ground which you truly should. That makes you appear unreasonable. And if the other side doesn't do the same, then they seem reasonable in comparison. Which order do you think a judge is more likely to sign-the one written by the most or least reasonable party in the suit?

You gain credibility by conceding points where the law truly says the other party should win. You also gain credibility where you concede points that the other side should probably win, but only after a bit of a fight, because that fight wastes everyones time and energy. One thing judges do not like is to have their time wasted. You gain credibily by an unbiased presentation of the facts. Certainly where there is a factual dispute, you advocate for the position you think the evidence supports, but where there are independently verifiable facts, particularly where you are dealing with a written record, citing to it in a misleading way can only destroy your credibility once the judge reads the record and sees that it doesn't match your claims. Better for the judge to conclude that about the other party - then whenever an issue comes up, the judge will turn to YOU for the answer, because the other party simply won't be trusted to give an accurate answer (for instance, if at oral argument, the judge forgets about a particular detail in the record and wonders what happened - or even for something that is outside of the record, like what has happened since the record was taken).

If you gain a reputation for an unbiased representation of the facts, even where it may hurt your client. you gain a reputation for credibility that will serve you well.

I've thought about this in the context of online discussions, where certain ideological groups never cede a single inch or grant any validity to any of the points in contention. Sure, there are idiots who "troll" and don't really have any valid points to make, but it seems like people are shoved into that category all too quickly simply for not being a synchophant, and you get no-debate echo chambers instead of any rational discussion. I wonder if any of those bloggers would still act like that if they had real legal experience where they had to build credibility with a neutral arbiter like a judge instead of having dictatorial control over their own little fiefdom of the internet.

But back to the issue at hand. You need credibility to be an effective advocate. Credibility on the facts and on the law. You have to make sure you are accurate. You have to make sure you communicate it clearly to the judge. And you have to be reasonable. Clients may love it when you are unreasonable and take the scorched earth approach, but it will annoy the hell out of judges (well, unless you are a prosecutor - then the judge can be an extension of the prosecution. Ok, that isn't quite fair - there are lots of biases judges can have).

Credibility is something hard earned and easily and quickly lost. Mislead a judge once, leading to that judge to sign an order that is contrary to the law (or the facts) - and that judge is then reversed on appeal - that judge will remember you. And the next time, even if you are right, the judge certainly isn't going to take your word for it. And ultimately, it is your clients who will suffer.


Krystyn41 said...

This is completely false..but I take it that you aren't practicing law anymore? The reason why the Judge lets the lawyer write the order is so that he can screw the guy who loses. This is what happened to me countless times until one day the light bulb went off. Geezz the law is so corrupted with unscrupulous people and to find an honest person is kinda like rummaging around in a haystack.

DBB said...

That is a rather cynical view to take. Not that all judges are fantastic - plenty aren't - but credibility does matter. And there are plenty of honest attorneys. I've met them. I am one.