Timeless Advocacy Lessons from the Masters H. Mitchell Caldwell† Janelle L. Davis†† Abstract This Article discusses seven key lessons to be learned from master trial advocates. By providing famous examples of their application in practice, the authors demonstrate that these lessons are essential to acquiring a winning verdict for your client. Introduction Great advocacy knows no time. From the agrarian society of eighteenth century America when future President John Adams repre- sented the British Redcoats accused of the Boston Massacre,1 to the early twentieth century when Clarence Darrow saved Leopold and Loeb from the gallows,2 and on through the latter half of the twentieth century when † B.A. (1972), California State University Long Beach; J.D. (1976), Pepperdine University School of Law. H. Mitchell Caldwell is a law professor at Pepperdine Uni- versity School of Law and teaches in the areas of trial advocacy, criminal law, and criminal procedure. He has published extensively in his subject areas including his work as co-author of the acclaimed LADIES AND GENTLEMEN OF THE JURY series which included Ladies and Gentlemen of the Jury, And the Walls Came Tumbling Down and The Devil’s Advocates, published by Scribner/Simon & Schuster. He is also a co- author of THE ART AND SCIENCE OF TRIAL ADVOCACY (2d ed. 2011). †† B.S. (2004), Texas Christian University; J.D. (2007), Pepperdine University School of Law. Janelle Davis is an associate at Thompson & Knight LLP in Dallas, Texas, where she represents clients in state and federal court proceedings. Her practice focuses on matters involving complex commercial litigation, products liability, and toxic torts. The authors acknowledge the Pepperdine Summer Grant Program and the efforts of Lacey Gray. 1 See Terry Votel, A Proud Tradition: Representing the “Unpopular Cause”, 68- APR BENCH & B. MINN. 7 (2011). Adams believed “that Captain Preston and the British soldiers deserved [an] effective defense.” Id. As a result, he took on the case and Captain Preston, as well as six of the eight soldiers, were acquitted when Adams “cast doubt as to whether Preston gave orders to shoot.” Id. The two remaining soldiers, “who were proven to have fired their weapons, were convicted of manslaughter [and t]heir punishment was to have their thumbs branded.” Id. 2 See Edward J. Larson, An American Tragedy: Retelling the Leopold-Loeb Story in Popular Culture, 50 AM. J. LEGAL HIST. 119 (2010). The young and intelligent duo 20 AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 35:19 Gerry Spence laid low a nuclear energy giant,3 master advocates have plied their craft. And it remains for contemporary trial lawyers to study their work, to learn from the masters, and hone their own trial advocacy skills. It is to this goal that this exercise strives. Eighteenth century agrarian America is a far stretch from the “instant access” society of the twenty-first century,4 yet certain fundamental axioms of advocacy still hold true. And even though attention spans have shrunk for most Americans, from the time of Darrow’s twelve-hour closing argument in defense of Leopold and Loeb to the time between television commercials,5 advocacy at its highest level remains a potent tool not to be relegated the dusty tomes of history. While the successes of the masters were often a function of charis- matic and intellectual qualities unique to themselves, there are certainly lessons to be garnered and skills to be emulated. This Article explores pleaded guilty to the murder of thirteen-year-old Bobby Franks, motivated not by money from ransom, but rather by the thrill of committing and getting away with the perfect crime. See id. at 130-32, 143. Their wealthy families hired Clarence Darrow, known for being an opponent of the death penalty, to save them from hanging. Id. at 128-29. After an incredibly compelling argument on the part of Darrow, the boys’ lives were spared. Id. at 143. They were sentenced to life in prison plus an additional ninety-nine years. Id. 3 See Philip N. Meyer, Making the Narrative Move: Observations Based Upon Reading Gerry Spence’s Closing Argument in The Estate of Karen Silkwood v. Kerr- McGee, Inc., 9 CLINICAL L. REV. 229, 234-35 (2002). Silkwood was an employee at Kerr-McGee’s factory who made claims that she was exposed to hazardous materials due to the company’s failure to follow necessary safety protocols. Id. Silkwood died in a car accident on the way to a meeting with a reporter from the New York Times, in which she intended to expose the company’s wrongdoings. Id. at 235. Silkwood’s father, represented by Gerry Spence, brought suit against the company on behalf of Silkwood’s children and family. Id. After Spence’s famous closing argument, the jury awarded $10.5 million to Silkwood’s family. Id. 4 See NEIL POSTMAN, AMUSING OURSELVES TO DEATH: PUBLIC DISCOURSE IN THE AGE OF SHOW BUSINESS 3 (1986); see also SOCIETIES AND CITIES IN THE AGE OF INSTANT ACCESS 3-4 (Harvey J. Miller ed., 2007) (“At the dawn of the 21st century, accessibility is undergoing dramatic, epoch-making changes. We are on the verge of the ‘second information revolution,’ based on near-ubiquitous access to computing, information and people through portable and wireless information and communication technologies (ICTs). We can already see changes created by the technologies of instant access. New possibilities for interaction created by mobile phones and the wireless Internet are making cities more dynamic, decentralized and complex.”). 5 RUDOLPH F. VERDERBER ET AL., THE CHALLENGE OF EFFECTIVE SPEAKING 38 (18th ed. 2008) (“Not only does the gap between speaking rate and processing create opportunities for inattention, but research suggests that the average attention span for adults today is twenty minutes or less.”). 2011] TIMELESS ADVOCACY LESSONS FROM THE MASTERS 21 seven of those lessons that have application to the efforts of those who labor in the trenches of trial advocacy. I. Develop a Tight and Compact Theory of the Case Theory of the case—an arcane phrase, if ever there was one. It is a phrase that is often overlooked; yet, it embodies a significant component of any case presented at trial.6 Master advocates recognize, perhaps intuitively, that a sound theory of the case is the fountainhead from which the successful flow of the trial proceeds.7 The theory of the case must be compact, pithy, and easily understood.8 When preparing for trial, master advocates understand that they need to take the evidence that will be presented and construct both a factual and legal theory of their case.9 The factual theory is their view of what happened and why,10 while the legal theory is their view of why these 6 Anthony J. Bocchino & Samuel H. Solomon, What Juries Want to Hear: Methods for Developing Persuasive Case Theory, 67 TENN. L. REV. 543, 548 (2000). [L]awyers should have anticipated what the jury might consider in its decision making. It is for the lawyer to anticipate what the jury needs to hear and how the jury needs to hear it in a particular case in order to decide the case comfortably. This process involves choosing an appropriate theory of the case and presenting it in a way that is palatable to the jury. The modern litigator’s arsenal should include those techniques designed for selecting appropriate case theories, for testing those theories, and then for making the theories understood at both an intellectual level and a psychological level through the use of illustrative exhibits or computer technology. Id. at 543. 7 See id. at 543-44. 8 Id. at 546. 9 Id. at 545. “[I]n developing effective factual theory, it is vital to remember that not only are the facts themselves important, but so is the perception of facts that will drive factual theory.” Id. It is imperative for advocates to recognize that “the reality of the facts and the common perception of them will [often] be at odds, and it is the [sic] for the lawyer to reconcile reality and the perception of reality for effective factual persuasion.” Id. 10 Id. “Factual theory defines what the facts of the case really are. The factual theory answers the question, ‘What really happened in the case and why?’ There can be several factual theories that evolve out of the same fact pattern presented pre- discovery.” Id. 22 AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 35:19 facts are legally sufficient to state their claim or defense or rebut their opponents’ claim or defense.11 Master advocates excel at the art of encapsulating their legal and factual theories of the case into clear and concise language. In his successful suit against Kerr-McGee,12 a nuclear processor, Gerry Spence very precisely set forth his legal theory of the case: What is the case not about? The case is not about being against the nuclear industry. You will never hear me say that I stand here against the nuclear industry—I do not. But it is about being responsible, about responsible progress. And without the truth, the progress that we all need, and want, can’t be had. It is that simple—that is what the case is not about.13 In this tight, short paragraph, Spence asserted that the defendant corpora- tion failed to act responsibly as it went about its business and as such, it should be held accountable.14 Spence also clearly set forth what the case was not about. He recognized that a broad assault against industry, specifically the nuclear industry, was not essential to successfully prose- cuting his action. He narrowed his legal theory of the case to one notion: responsibility.