As Louis Nizer observed, “Juries decide issues on fact”; thus, with a jury, “you win cases because you have established the facts in your favor.”(1)
Similarly, when judges are the decision-makers, you win cases when you establish the law in your favor. If it were otherwise, our system of justice could be properly criticized for resolving cases not based on the merits, but based on who has the best lawyer. In our experience, most verdicts by judges and juries are decided on the merits. As a result, truth and justice generally prevail.
In your role as a lawyer, you have three important responsibilities to perform with respect to the substantive content of your argument. First, you find and gather the pertinent facts, relevant law and any other materials that might have value in your argument. Second, you evaluate the collected materials and select the most helpful. Third, you design and build a persuasive argument out of these selected materials.
Creativity is invaluable in meeting this third responsibility. Sir Walter Scott observed that in collecting, evaluating and selecting the most useful material, the lawyer’s work is like that of a mason, who gathers and selects the most appropriate stones for construction. But the best lawyers, according to Scott, are more like architects, who use knowledge, thought and creativity to design new and original buildings.
When you practice your art at its highest level, you use the raw materials — the facts and the law — to create something new and original: a convincing argument.
Consider the classical concept of invention. In Cicero’s time, “invention” was considered the most important faculty of persuasion. Invention in that context means developing and selecting the material or the line of argument that makes a case convincing.(2) The concept is as old as Plato and was discussed thoroughly by Aristotle.
The primary challenge of invention is to identify the ideas and framework by which the hard facts and other content are made most persuasive. In classical oratory, when speakers were searching for material to develop an argument, they turned to a list of topics.
On this list, they would find ideas such as honor, patriotism, laws and the relationships between things. The list was designed, at least partly, to inspire the speaker to think “outside the box” of the specific facts and law at issue and to suggest other lines of argument.
As a lawyer, you routinely address certain issues such as the legal elements of the case, the defenses offered, the credibility of witnesses and the burden of proof — appropriate and necessary concerns. Nevertheless, if you want to make the strongest argument possible, you must look beyond the obvious to identify other issues or values that may be at stake.
When you argue in a breach of contract case, you might talk simply in terms of “strict enforcement of agreed terms.” Alternatively, you might employ ideas such as “honoring commitments” or “fulfilling corporate responsibilities.” Below are two good examples of “thinking outside the box” in legal argument.
In the Leopold and Loeb case, the media regularly reported that the defendants’ wealthy families had been able to hire the best legal counsel and would receive special treatment from the courts. Clarence Darrow in his closing argument turned this problem into a strength. He argued against the imposition of the death penalty in this way:
If we fail in this defense, it will not be for lack of money. It will be on account of money. Money has been the most serious handicap that we have met. There are times when poverty is fortunate. I insist, your Honor, that had this been the case of these defendants’ age, unconnected with families supposed to have great wealth, there is not a State’s Attorney in Illinois who would not have consented at once to a plea of guilty and punishment in the penitentiary for life … .(3)
Another example of creative thinking is undertaking a burden that is not legally yours. Thus, as counsel for the defense in a civil or criminal case, you might decide to tell the jury directly what the defense will prove, rather than pointing out to the jury that the burden of proof belongs to the plaintiff or to the prosecution. For example: “Ladies and gentlemen of the jury, we are going to prove to you that Mr. Smith is innocent.”
Herbert Stern advises, “Never defend any case. All cases must be prosecuted.”4 Whether the best defense is a good offense will be for you to judge in your own particular case.
No matter what strategies you pursue, crafting your argument ought to be a creative act, one that will smartly present the merits of your case and win over the judge or jury.
1 Louis Nizer, How to Prepare a Winning Case in “The Trial Masters: A Handbook on Strategies and Tactics that Win Cases,” Prentice Hall (1984)
2 Harry Caplan, translator, “Cicero: Rhetorica ad Herennium,” Goold, ed., Harvard University Press (1988)
3 Maureen McKernan, “The Amazing Crime and Trial of Leopold and Loeb,” Notable Trials Library (1989)
4 Herbert J. Stern, “Trying Cases to Win,” Professional Education Systems Institute (1991)