Rule 41 of Keith Evans’ Common Sense Rules of Advocacy is what he calls “Newton’s Rule.”
Isaac Newton’s third law of motion, of course, was that for every action there is an equal and opposite reaction. Evans applies this rule to trial advocacy to suggest that you never want to get into a confrontation with your finder-of-fact, whether that’s a judge or jury: “The rule is simple. You push and they’ll push back.”
There is a little bit of contrarian in everyone, and nobody likes to be told what to do. If you exclaim to the jury that they can’t possibly convict your client, their knee-jerk response is going to be: “You don’t think so? Well, just watch us.”
The take-away from this, according to Evans, is that instead of demanding, you invite:
Instead of telling, you suggest. You don’t insist they look at something: you suggest they might find it helpful if they did. You don’t pull, you lead, and you lead gently. Stick and carrot has no place in advocacy: it’s exclusively carrot.
“This isn’t a subtle advocate’s trick,” Evans continues. “It a rule of human conduct.”
As a public defender in Philadelphia, I used a variation of this rule while dealing with indigent clients during plea bargaining. Getting clients to listen to a paid lawyer is never a problem. After all, they never would have hired you unless they thought you knew what you were talking about. And juvenile clients tend to listen to you because, well, you are an adult and you seem to know what you are doing.
But court-appointed adult cases are different. You don’t respect what you don’t pay for, and many people have an innate distrust of public defenders. Many clients suffer under the misconception that, because the government pays the lawyer’s fee, the lawyer is actually looking out for the best interests of the government. Many don’t realize that public defenders are actual lawyers: “You should go to law school some day. You would be a very good lawyer.” And most people assume that public defenders would far prefer to plead out a case than go to the trouble of taking the case to trial: “You just want me to take the deal because it is less work for you.
None of this, of course, is true. Nobody gains any trial experience, derives any satisfaction, or makes a name for him- or herself by pleading cases out. Any idiot off Craigslist can stand up in court and represent the client through the plea colloquy. That’s not why we go to law school or decide to become trial lawyers.
Because of this mistaken perception of public defenders, I learned early on not to give any inkling that I was invested in a client’s decision to accept a plea offer even if I absolutely, positively believed it was in the client’s best interest to do so. I also learned not to discuss the terms of a plea bargain on the table until much later on in our discussions.
I would usually begin with the client’s legal posture and facts of the case to put the client at ease that I knew his/her case no matter how many other people I was representing that day. I would then lay out my strategy for fighting the case if we decided to take it to trial. Only then would I mention the terms of the plea deal — and even then almost parenthetically. As I then continued onto other matters, you could often see the client looking distracted – he or she was still thinking back on the terms of the plea. What happens if I accept the deal? And how much time will I get if we take this case to trial and lose?
Evans also applies the “Newton Rule” to argument. For example, he says, you never call opposing witnesses a bunch of liars. This will only raise the hackles of the contrarians on the jury. Instead, you gently and subtly suggest that the other side might be trying to pull the wool over their eyes. This turns peoples’ contrarian natures to your advantage: Nobody likes to be hoodwinked.
You can find Evans’ other 99 Common Sense Rules of Advocacy here. Although I do not agree with Evans that seasoned veterans will take much away from this book, the rules should be helpful both for new practitioners and for those of us who are in-between.