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PERSUASION Michael E. Tigar Edwin A. Mooers Scholar and Professor of Law Washington College of Law American University Washington, D.C. PERSUASION, PAGE 1 DEDICATION This book is dedicated to the memory of Edward Bennett Williams. ACKNOWLEDGMENTS I have been shown many kindnesses by many people. Judge Timothy Corcoran, John Segal, and Priscilla Anne Schwab of the Section of Litigation Special Publications Committee believed in this project, even when my trial commitments delayed its completion. Jennifer Bell did heavy typing under difficult conditions. My wife Jane B. Tigar read and edited the manuscript with her customary love and her considerable expertise. My most fervent thanks must go, as before, to all the clients whose life or liberty I was permitted to defend, and to all the great lawyers with whom I have worked. Major Debra Meeks remains, for me, one the best examples of courage and principle that I have ever known; I am glad I could help. Harold Haddon of Denver has stood with me through many struggles, always with wise counsel, great advocacy, a sense of humor, and love. All my colleagues at Haddon, Morgan & Foreman deserve special thanks. Most recently, Ronald G. Woods of Houston, Texas, shared with me the duties of lead appointed counsel in the case of Terry Lynn Nichols, accused in the Oklahoma City bombing. One could not have a finer friend and colleague. PERSUASION, PAGE 2 TABLE OF CONTENTS Page Foreword: Edward Bennett Williams and the Art of Advocacy Chapter One - The Elements of Persuasion Introduction A Note on the Organization of this Book The Dialectic of Advocacy The Primacy of Story Stories in Famous Trials Elements of Classical Rhetoric Invention: Principles of the Story Demonization Chapter Two - Beyond Invention: The Speaker and the Hearer Introduction Round Characters and Flat Characters Economy of Expression Personifying the Fictitious Person Arrangement: Trial Materials Arrangement: The Story Itself Style Memory Delivery Voir Dire: You As Hearer, Jurors As Hearers Chapter Three, Part I – Elements of the Opening Advocate Duties, Juror Duties Dividing Into Parts Stating Your Theme Using Exhibits Keeping Alive the Sense of Justice Chapter Three, Part II – The Opening Statement – An Example Chapter Four – Persuasion During Trial Just Sitting There Objecting Direct Examination Techniques Cross-Examination Techniques Exhibits as Signposts Review of Demonstrative Evidence Media and Trials Chapter Five, Part I – Elements of the Closing When to Plan the Closing Opening and Closing – What Is the Difference? Juror Involvement Setting the Scene Keeping the Story at the Center Responding, Anticipating, Rebutting Chapter Five, Part II – Closing Argument – An Example Chapter Six, Part I – Elements of Argument to Judges What Is the Same What Is Different Themes of Argument Responding and Rebutting The Value of Questions PERSUASION, PAGE 3 Chapter Six, Part II – Persuading Judges -- An Example Conclusion A NOTE ON CITATIONS Notes are at the end of chapters, except for Part Two of Chapters Three, Four and Six. For those chapters, I have put my annotations to Edward Bennett Williams’ words in a modified footnote form, to discuss the techniques of argument he is using. Citations to Examining Witnesses are to my 1993 book, also published by ABA Press. The entire transcript of the Nichols trial is on the Internet and in a Westlaw database, OKLA-TRANS. Openings and closings in that trial are also available as part of a series of trial materials reprinted by the Professional Education Group, Minnetonka, Minnesota, all of which may be ordered directly from them at (612) 933-9990. PEG also sells a series of books that are annotated transcripts of lawyer arguments to juries and courts. It is called “Classics of the Courtroom.” These books are well worth owning. Some of the material in Chapter Four is drawn from the brief we filed in Gentile v. State Bar of Nevada, 111 S.Ct. 2720 (1991). PERSUASION, PAGE 4 Foreword: Edward Bennett Williams and the Art of Advocacy This book is about persuasion -- how we convince judges and jurors through argument to find for our clients. It is about a study that once dominated legal education, then died away, and now is reborn. This book is about ideas that every law school once made the centerpiece of its teaching, and to which few law schools today pay much heed. Most lawyers have, one time or another, read the elegant and persuasive words of Daniel Webster, Abraham Lincoln, Mark Twain, Clarence Darrow. Many have studied the arguments of other great advocates in the common law tradition. What marks their arguments? What makes them memorable? A lawyer in Houston once showed me his collection of books about great trials. “I keep reading these things in my spare time,:” he said, “and I keep finding arguments that I have used or wanted to use, and that I thought were original with me. We really are part of a tradition.” On the way to writing this book, I was appointed counsel to Terry Lynn Nichols in the Oklahoma bombing case. In the three years that followed, I learned again what Edward Bennett Williams had taught. I had already begun work on this book, and had chosen to use the Connally and Alderman/Ivanov cases as examples of persuasive advocacy to juries and to judges. As I prepared for the Nichols trial, the significance of Edward Bennett Williams’ work in those cases was borne in upon me. Connally was charged as the result of a cynical and misguided plea bargain. His acquittal after trial was based on a trial record that spoke volumes about prosecutors forgetting their objectivity. The Alderman and Ivanov cases, as they came to the United States Supreme Court, were about whether government should be accountable in an adversary hearing when its agents deliberately violate the law and invade privacy. I began to reflect on Williams’ work in a new way. We are tempted as lawyers to regard our persuasive skills as simply “tools of influence,” as Professor Martha Nussbaum describes them, with no higher justification than that they produce results. But the well-lived life of the advocate must include concern for how we use those tools. Their highest and best use is against government attempts to stifle democratic rights, and to use state power in illegitimate ways. Edward Bennett Williams was not simply a “hired gun.” The cases I have chosen as examples prove that. A political leader, a Mafia figure, a Soviet spy – what did they have in common? All three were the targets of unlawful or unethical conduct by government. I have more than thirty years in the law. In the case of Terry Nichols, I saw a desire to get a death sentence at any cost that led advocates and those who worked for them to engage in some of the most unprofessional conduct I have witnessed. The intriguing thing was that much of this conduct translated into trial strategy that the jurors found repellent. A contest between adversaries with such disproportionate resources can never be an even match, but I was again struck by how our tools of inquiry and influence – rooted as they are in a long tradition – rightly are seen as valuable in the quest to defend democratic rights. As the dedication says, this book is for Edward Bennett Williams. I discuss principles of advocacy, the study of which I began in Ed’s office. More than thirty years ago, he hired me at a difficult time in my life. Shortly after his death in 1989, I wrote a column in Litigation. I tried to capture some of the qualities of Edward Bennett Williams’ advocacy. He was educated in the tradition of classical rhetoric. He understood and loved to discuss the elements of our art. This is what I wrote, with just a few notes added: PERSUASION, PAGE 5 * * * * * * * It is hard to say what makes a great trial lawyer. Those we celebrate have been students of society, quick to resent injustice, eloquent in defense of freedom and fairness. I recall telling my father, when I was about 11, that I was thinking of becoming a lawyer. He thought for a time, then went back to his room and came back with a copy of Irving Stone’s Clarence Darrow for the Defense. This, he said, is the kind of lawyer you should be. Through high school and college, I devoured books on Darrow: his autobiography, the Weinberg collection of trial excerpts, Attorney for the Damned, the fictionalized Inherit the Wind. In college, I began to read of a Washington lawyer who had defended Frank Costello, Jimmy Hoffa, and even – though this was harder to understand – Senator Joe McCarthy. Edward Bennett Williams had also written a book, One Man’s Freedom. Unlike other lawyer books, it was not self-glorifying. It was a series of arguments for progressive change in the system of criminal justice, coupled with such things as the duties of a lawyer and the prospects for international law. My first week in law school in the fall of 1963, I picked up an issue of the California Law Review and there was an article on the Teamster monitors and more about Ed Williams. By the end of my second year, I was put together a résumé, asking that he consider me for a job when I finished my clerkship. The time for job interviews came sooner than I expected, and I went to the offices of the ten-lawyer firm that Ed Williams headed. He offered me a job that day, and I accepted. During the years we spent together, I learned what it means to be a trial lawyer.

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