Posted Jul 01, 2012 07:50 am CDT
Editor’s Note: Jim McElhaney’s 25-year run as Litigation columnist for the ABA Journal will come to a close this fall. During those years, McElhaney’s straightforward advice on trial practice became one of the most popular features in the magazine. To recognize McElhaney’s contributions, the Journal is reprinting some of his “greatest hits” from the past quarter-century. This article originally appeared in the Journal’s November 1999 issue under the headline “The Sin of Self-Persuasion.”
Nick Wheeler stopped Angus and me outside the Donut Hole, across the street from the Court of Common Pleas.
“I need help,” said Nick.
“What’s the problem?” said Angus.
“I’m trapped in a bad case that keeps getting worse, and I want out,” said Nick. “I agreed to help Mike and Ellen Pollock try a patent infringement suit. It may be worth as much as $150 million or $200 million—it’s a contingent fee case—but the way the Pollocks are approaching it, they’ll be lucky to get anything.”
“Doesn’t sound like the Pollock twins to me,” said Angus. “They’re supposed to be good lawyers.”
“That’s what I thought when I agreed to work with them,” said Nick. “But they’re patent lawyers, not trial lawyers. They’ve never had a big damages case before, and they want me to help them out with the entire trial.”
“What are they doing that’s hurting the case?”
“All sorts of things,” said Nick. “Big and little.
“For example, I’ve explained again and again that the most important key to getting big damages is proving big fault. There is a lot of evidence that the defendant deliberately stole their client’s idea and then created an elaborate cover-up to try to hide what it did.
“But Mike and Ellen are ignoring all that. They say the chronology of events establishes everything they need. And it may, for the purpose of getting past a motion for a directed verdict. But you don’t win a lawsuit by putting on the most minimal case the law requires. The Pollocks don’t seem to appreciate the persuasive power of showing their opponent’s skullduggery. There’s a great story in this case that they’re just throwing away.”
“Then there’s the problem of how to meet the defendant’s arguments,” said Nick. “They don’t see the danger lurking in the other side of the case. Whatever the problem, they always think the best answer is in some little bit of circumstantial evidence or maybe just a superficial quip—as if a trial were a contest of verbal agility, like a high school debate, instead of society’s moral arena where right grapples with wrong.”
I liked that, so I wrote it down. Nick continued.
“Next is the way they look at their client. They can’t conceive that anyone would disbelieve a thing their client says. They think he’s the most credible witness they’ve ever seen. But the truth is, the defendant’s CEO is pleasant, intelligent and articulate. Unless you listen very critically to what she says, she makes a better impression than the plaintiff does.
“The problem is, Mike and Ellen so thoroughly believe in their case that they’re unable to step back for an objective look at their weaknesses or the other side’s strengths. Trial is six weeks away, and they’re not remotely ready to do what’s necessary to win.”
“Self-persuasion is a great human weakness to which we are all prone,” said Angus. “The tendency of people to become irrationally convinced of their own position in any dispute is one of the main reasons we need lawyers in the first place. It’s a real service when your own champion shows you some of the gaps and defects in your case.
“But trial lawyers are not just counselors. We’re also advocates. We identify with our clients and we have a natural tendency to believe in the cases we present.
“That’s an advantage up to a point. It can help make us more persuasive if we don’t let it cloud our vision.
“But getting carried away with our own rhetoric can cause so much damage to our credibility and the plausibility of the cases we argue that self-persuasion is one of the Seven Deadly Sins of trial lawyers.”
By this time we had worked our way to the back booth in the Donut Hole and were each having a cup of coffee. That’s when Andy Lundquist joined us.
“What’s the big deal about a little harmless overstatement?” said Andy. “Everybody does it.”
Angus smiled. “How many times did you testify in the last case you tried?” he said to Andy.
Andy looked like he thought Angus was trying to trick him. “Not once,” he said. “Did you think I slept through ethics and professional responsibility in law school?”
“Did you conduct a jury voir dire in the last case you tried?” said Angus.
“Of course,” said Andy.
“Do an opening statement?” said Angus.
“Direct examination?” said Angus.
“Cross-exam?” said Angus.
“Yes,” said Andy.
“And final argument?”
“Without a doubt,” said Andy. “What’s your point?”
“Just this,” said Angus. “I count at least five key points at which your credibility was a key component of what you did in that trial. No matter what the legal theory is, you’re the most important witness in every case you try.
“Take voir dire. Right from the beginning, the jurors start sizing you up and deciding whether they can trust what you say, or whether they have to keep wondering when you’re exaggerating, or what you’re holding back.
“In the opening statement, you get to tell the story of your case, while the judge and jury consider the source—you—as they listen. And if your story doesn’t fit their inner scripts, they will reject both you and what you say.
“On direct examination, you vouch for every witness you call, even though the law says that has changed and that you can attack the credibility of any witness you want. The implied promise you make when you put a witness on the stand is that he will tell the truth. If the jurors feel they can’t trust you, they’re a lot less likely to believe your witnesses. By the same token, if they don’t believe one of your witnesses, they’ll hold it against you.
“On cross-exam, it’s virtually your turn to testify. You get to tell the witness what happened with leading questions. Do it right and the witness has to reluctantly acknowledge that you’re telling the truth—making your credibility grow. But do a dishonest cross-exam where you suggest something that turns out to be untrue, and your credibility falls apart.
“And if by the end of the trial the jury decides you speak with forked tongue, the finest rhetoric isn’t going to save your case.”
“I understand that,” said Andy. “But why do you think believing too much in your own case is destructive?”
“Partly because it destroys your critical ability to throw out what the judge and jury are not going to believe,” said Angus. “It undercuts the sense of proportion you need to determine how much damage a withering cross-examination of your most important witness will do or how bad it will be if you can’t deliver one of the key facts you promised the jury in your opening statement.
“Another part of it is the lowest-common-denominator effect. One bad argument hurts you and your entire case. While slips and honest mistakes are forgiven—if you correct them yourself—you are judged more by the worst you do than the best.
“And part of it is the paradox of persuasion. The people who get carried away with their own rhetoric argue too hard. They obviously have something to sell, and that creates serious sales resistance. The harder you push a silly point, the less credible you are. The tendency to make mountains out of minor circumstantial incon?sistencies may be the life’s work of some academics, but it does not win many arguments that are tried in the court of common sense.”
“So I guess it’s a real problem,” said Andy.
“Getting carried away by your own rhetoric can cause so much trouble that some lawyers suggest it’s a mistake to try to believe in your client’s case,” said Angus. “Present it as positively as you can, but don’t make the inner leap of faith that it’s true.”
“Do you agree with that, Angus?” said Andy.
“Basically, I think you can’t sell what you won’t buy,” said Angus. “If you can’t believe in your case, cut it down to size so you can dismiss it or send it away.
“If you’re defending a criminal case, for instance, you don’t have to believe in the innocence of your client to believe that the prosecution hasn’t proven its case, or that the prosecution’s witnesses have testified dishonestly. But if you don’t believe in the integrity of your theory of the case, it’s in trouble.”
“Right,” said Myra Hebert, who had just walked in. “Sincerity is the most persuasive tactic there is. Once you learn to fake it, you’re set.” Myra seemed surprised when no one laughed.
After we were back on the street, Nick Wheeler told Angus, “I’m going to use some of your ideas and try to talk to Mike and Ellen Pollock one more time. I think I owe it to them—and their client.”
A week later, Nick was all smiles when he saw Angus. “The Pollocks’ patent case got put off for 90 days and I got fired,” said Nick. “They said they wanted someone who was more committed to their case. I haven’t been so happy in months. Want to go to the Donut Hole? I feel like a chocolate éclair.”
“I think you’ve earned it,” said Angus.