Chapter 1: The Advocate

Advocacy is a humanistic, ethical helping profession in which the advocate prepares to navigate success, failure, anxiety, and satisfaction in turn — and this chapter introduces the theories, strategies, knowledge, tactics, procedures, techniques, and skills that guide effective practice across judicial, arbitral, and administrative forums.

Chapter 1

■ ■ ■

1.1 Introduction

A. This Advocacy Book

B. Advocacy Sources and Resources

C. Forthcoming Advocacy Services

1.2 The Advocate

A. The Goal of the Advocate

B. Roles of Advocates

C. Character Traits

D. Balanced Approach

E. Client Relations

F. Collaborative Relationships

1.3 Civil Dispute Resolution Systems

A. Litigation

B. Arbitration

C. Administrative Hearings

D. Online Advocacy Solutions

E. Hybrid Dispute Resolution

1.4 Alternatives to a Trial or Hearing

A. Negotiated Civil Settlements

B. Criminal Plea Agreements

C. Mediation

D. Fact/Issue Finding

E. Mini-Trial

F. Summary Jury Trial

G. Moderated Settlement Conference

H. Collaborative Law

I. Private Judging

J. Special Masters

K. Court Mandated or Consensual Process

1.5 Storytelling Techniques

A. Use Primacy and Recency

B. Reasonably Repeat Information

C. Rely on the Rule of Three

D. Establish Realism

E. Develop Human Interests

F. Enhance Emotions and Reactions

G. Enrich Visual Senses

H. Utilize Impact Words

I. Create Images

J. Augment Imagination

K. Consider What Is Presumed

L. Employ Understandable Language

M. Be Reasonably Brief

1.6 Fundamental Approaches of Persuasion

A. Recognize Values and Principles

B. Actively Involve the Fact Finder

C. Focus on Responsibility

D. Reveal Inconsistencies

E. Present Alternatives

F. Offer Simple Explanations

G. Identify with the Decision Maker

1.7 Elements of Advocacy

A. The Persuasive Advocate

B. Involvement of Attorney

C. The Objective Partisan

D. Open-Minded Decision Makers

E. Recollections of Witnesses

F. Testimonial Truthfulness

G. Displaying Relationship with Client

H. Professional Accountability

1.8 Methods of Effective Presentation

A. A Good Person

B. Confidence

C. Expressive Ideas

D. Persuasive Expressions

E. Bearing and Mannerisms

F. Appearance

G. Tone and Pace

H. Visual Aids

1.9 Ethics

A. Sources of Decision-Making Power

B. Constraints

C. Professional Rules of Conduct

D. Attorney Misconduct

E. Client Demands and Satisfaction

F. Consequences of Misbehavior

1.10 Future Advocacy

A. Advocacy Forecasting

B. Legal Analytics

C. Data Availability

D. Quantitative Decision Making

E. Artificial Legal Intelligence

F. Lawbot Communications

G. Lifestyles and Relationships

H. Developments and Reforms

I. Predictive Prospects

—————

REFLECTING ON ADVOCACY

Justice cannot be for one side alone, but must be for both.

—Eleanor Roosevelt

Oh, do not ask, “What is it?” Let us go and make our visit.

—T.S. Eliot

The Love Song of

J. Alfred Prufrock

Introduction

Welcome to advocacy! You will learn how to efficiently prepare and effectively try a case. You will explore and discover what to do, when to do it, where to do it, and why to do it.

A. This Advocacy Book

This text explains civil and criminal trial practice in the federal and state court systems, arbitration procedures and hearings, and administrative law processes. Our dispute resolution system includes three primary forums: judicial, arbitral, and administrative. This book thoroughly covers strategies and tactics applicable in these tribunals.

Many of the skills covered in this text are useful in other types of practice including transactional lawyering and other non-advocacy legal work. Lawyers in many types of professional roles need to plan a presentation, tell compelling stories, ask questions, appraise facts, assess opinions, evaluate positions, persuade others, and understand how disagreements can be effectively resolved. These important talents are essential for lawyers to develop in crafting deals, counseling, negotiating, completing transactions, or in whatever professional work they do.

This book prepares you to be a highly professional, responsible, and competent advocate. You will face times of success (!), failure (#%?), enjoyment (yea!), weariness (sigh), fun (yes!), anxiety (oh, no), satisfaction (ahhh), frustration (ah, me), and peace (it’s over). This book is designed to provide you with the theories, strategies, knowledge, tactics, procedures, techniques, and skills to guide you through these advocacy experiences.

The sources of trial “law” include rules of procedure, statutes, case law, constitutional provisions, local court rules, orders and rulings, as well as customs and traditions. The sources of arbitration procedures also include the agreement of the parties and the applicable code of rules. The sources of administrative procedural law include statutes, regulations, and administrative and judicial opinions.

What occurs during trials and hearings follows common rules and procedures. A case tried in one jurisdiction is tried similarly in another jurisdiction. This book explains these common practices, as well as dissimilar practices.

Further, these materials analyze systems and methods used by successful lawyers in planning and presenting cases. Attorneys learn from each other and adopt and adapt successful positions and styles. We look to the past to decide what to do presently and for the future.

This text describes alternative trial and hearing strategies and approaches applicable in current as well as evolving forums. There is no single or singular way to try a case. Much of what occurs during a trial and hearing is determined or influenced by the advocate’s choice of strategies. The illustrations and examples of tactics and techniques presented will assist you in making well-reasoned judgments and informed decisions useful for all types of cases and tribunals, now and in the future.

The choices and decisions advocates must make—from the planning of what to do to the presentation of a case—are based on analytical legal reasoning and incisive judgments. This process is a primary focus of this book. Both the theory and practice of why and how advocates effectively think, reason, decide, and act are analyzed and explained.

The psychological and emotional dimensions involved in advocacy are also explored throughout this text. Trying a case can be a trying experience. The information presented in this book will assist you in developing the level of confidence and assurance necessary to try a case well.

Advocates make mistakes and problems commonly occur during cases. The key is not letting the mistakes and problems overwhelm or negate the presentation. Many problems can be anticipated and many mistakes can be eliminated through thorough preparation and an understanding of available solutions described in these materials.

Ethical issues arise during the preparation and presentation of a case. An underlying premise of this book is that advocates must hold themselves to high ethical standards. An understanding of professional rules and guidelines assists in identifying ethical concerns and becoming a responsible advocate.

The legal profession is a helping profession. A primary mission of advocates is to help their clients. This humanistic dimension of advocacy shapes and influences the work of the lawyer. The situations and problems presented in this book involve and affect the lives of diverse clients, parties, attorneys, and others. We encourage you to bring to life what you read so you can also experience this human dimension of advocacy.

Finally, a

B. Advocacy Sources and Resources

Sources of advocacy law and dispute resolution solutions continue to evolve. The *Supplement to Trial Advocacy Before Judges, Jurors, and Arbitrators *is a companion source of materials to this book. The Supplement contains three complete transcripts of a jury trial, an administrative hearing, and an arbitration, accompanied by commentary explaining the advocacy tactics and techniques. The Supplement also includes lawyering skills assessments and suggestions for learning advocacy online. See store.westacademic.com. Future revisions to the Supplement will include emerging advocacy materials. Further, the Preface to this text explains additional advocacy sources, including some of the following resources.

Clients and parties may search for advocacy information online through a variety of legal resource websites ranging from Wikipedia to proprietary sites to the Legal Information Institute to artificial intelligence data bases. They may explore dispute resolution websites about mediation (Mediate.com), arbitration (ADRForum.com), and administrative cases (state specific agencies). And they may learn about federal court procedures from United States district court websites. As a result, they will find some information and may be well informed or misinformed. They will also have questions about their options and need wise lawyers to advise and represent them.

Lawyers can review any number of books, websites, blogs, and AI systems that explain advocacy developments and describe successful strategies and tactics. Legal publishers offer an array of specialized civil and criminal advocacy texts. There are a variety of commentators and bloggers who post periodic legal updates, case opinions, and dispute resolution results. These and other resources are readily available to you.

Advocates can also learn advocacy skills from watching videos of lawyers trying lawsuits, administrative cases, and arbitrations. Professional videos provide educational demonstrations of a wide variety of lawyering skills including openings, direct and cross-examinations, and summations. These can be found online, in law libraries and legal publishing directories, and on YouTube video sites. The Preface to this book and the *Supplement *described in this section include references to worthwhile demonstration advocacy skills videos.

Virtual reality software has created educational and training programs for various businesses and professions. Novel programs may provide law students with the opportunity to try a simulated trial or hearing. These learning opportunities may well advance the process of becoming an effective advocate.

Cameras in the courtrooms provide a venue to view cases. Some appellate courts record their oral arguments, and some trial courts may record motions, hearings, and trials. And, ubiquitous video sharing and other social media websites provide even more opportunities to view reality, of some sort.

Observing real lawyers try actual cases is another valuable educational experience. Courtrooms in your locale provide a wide variety of civil and criminal cases. Court administrators can provide schedules of trials. Law clerks are receptive to helping law students attend trials. Trial lawyers will typically make themselves available to answer questions and explain what is happening. And judges commonly and graciously welcome advocates-to-be to their courtroom and chambers.

Administrative hearings and arbitrations may likewise be available to be observed. Administrative staff can provide schedules for public hearings. Arbitration administrators and arbitrators may allow observations with the consent of the parties.

Seeing, hearing, and experiencing the real thing provides highly informative educational training. Law clinics, internships, externships, and practicum courses have some of these experiences available. Pro bono opportunities during and after law school are another worthwhile source of advocacy practice and provide invaluable community legal services.

Movies, television programs, streaming productions, and the theater may replicate historic or fictional trials. The upside is that these experiences can be entertaining and educational. The downside is that so much of what is portrayed is unrealistic and exaggerated. There are also “reality” court shows that resolve disputes. Overall, these observations can be instructive, although it may be difficult to discern what might apply to actual cases.

And, there are marvelous and amazing artificial intelligence resources and assistance available.

C. GENerative AI (GenAI) and Large Language Models (LLMs)

As explained in the Preface, GenAI and LLMs are aligned with legal practice, since most everything a lawyer does involves words. Attorneys read words, analyze words, and write words. Today’s LLMs are very good at all those things. Tomorrow’s LLMs will be even better.

Lawyers read many legal documents and sources: contracts, agreements, settlements, statutes, rules, and case law. AI systems can understand those, too. LLMs can sift through texts at superhuman speed, identifying patterns, extracting key information, providing statistical result data, and even potentially giving predictive likelihood of events. This capability is particularly valuable in a field where the amount of reading is voluminous, and precise interpretations (and misinterpretations) can have significant legal consequences.

AI platforms can help lawyers analyze words. For example, LLMs can enhance the accuracy and efficiency of legal research by quickly identifying relevant precedents and legal principles. By automating routine tasks such as document sorting and summarization, LLMs can also free up lawyers to focus on more complex and strategic aspects of their work.

Advocates write words—and LLMs can assist there too – by helping draft pleadings, memos, motions, briefs, and other legal documents. LLM-backed tools can provide suggestions for language and structure based on vast repositories of legal texts. They can help ensure that the documents are clear, concise, and legally sound.

Moreover, LLMs can offer alternative phrasing or flag potential issues in a draft, allowing lawyers to refine legal terms, arguments, and presentations. As AI systems become more sophisticated, they may even be able to predict the effectiveness of certain legal positions or suggest novel approaches to complex legal issues. Overall, the integration of LLMs into legal practice has the potential to significantly enhance the efficiency, accuracy, and effectiveness of legal writing and drafting.

As GenAI and LLMs continue to evolve, these methods and systems will become increasingly integrated into legal practice, reshaping the way lawyers approach their work and represent their clients. When used properly and responsibly, AI can be a wise mentor and sage colleague. Throughout this book, we will provide periodic reminders of how these platforms can help lawyers do their work better, providing even more-useful services to their clients.

These AI resources and tools cannot and do not replace the work and obligations of lawyers regarding their advice to clients, the case strategies and tactics selected, and the content and submission of legal documents. Counsel remain ultimately responsible for everything that is done. Lawyers need to review all AI work to ensure it is accurate and reliable and that it meets all professional and ethical standards. Review the Preface.

D. Forthcoming Advocacy Services

Evolutionary changes in advocacy forums provide new and innovative approaches to dispute resolution. Some types of cases are being handled through virtual hearings (interactive video motions) and online exchanges of evidence and decisions (domain name dispute resolutions). Other innovative methods are forthcoming that provide fair and affordable justice, as discussed in later sections of this book.

Our traditional notions of justice view dispute resolution as an event that occurs in a place, such as a courthouse or a hearing room. Another view is that dispute resolution is a *service—*without boundaries. This notion provides additional opportunities for advocacy-trained lawyers to serve clients.

There will always be clients who need attorneys to represent them before tribunals. And consequently, there will be a need for professional advocates to present their cases before judges, arbitrators, administrative hearing officers, and jurors. Further, there will be new and evolving opportunities to offer legal services to clients before, during, and after disputes arise, including the following.

*Wise counselor. *The value added benefits that advocates can provide their clients are their insights, acumen, and judgment. Clients look to us for legal wisdom. There are no better client resources than knowledgeable and astute trial advocates.

*Risk manager. *We can help clients avoid legal disputes. Advocates know what causes disputes, and may be able to predict how and when they may occur. Smart clients may retain us to prevent disputes or reduce the chances they will occur and not just to resolve problems after they arise.

*Hybrid Professional. *Many advocates have other skill sets to offer clients. They may have expertise in technology, business, accounting, financing, education, engineering, employment, psychology, health care, artificial intelligence, or other professions that combined with their knowledge of the law provide clients with multi-talented advocates.

*Advocacy Adviser. *Because of the multiple options clients will have regarding pre-dispute, ongoing dispute, and post-dispute choices and decisions, advocates can guide them through these processes. The value of the advocacy adviser is reflected in saving clients money and time and avoiding worries and disruptions to their business or personal lives.

Project and Process Manager. Advocates can readily manage and monitor available dispute resolution procedures. A holistic dispute process can be subdivided into various components with specific tasks performed by a variety of professionals managed by the advocate.

Legal Collaborator. The migration of legal work from law firms to other legal providers—known as disaggregation—will continue to expand. Advocates will need to work with technologists, administrators, paraprofessionals, and other specialists to serve their clients, including AI experts.

*Prompt Engineer. *Various views consider whether an AI prompt engineer might be a career path for a law graduate. A prompt engineer provides relevant questions and instructions to guide Gen AI and LLMs to generate desired outputs and outcomes. Some contend that just as lawyers find it helpful to understand code, lawyers should also be prompt engineers. Others contend that the legal tools will be so good that prompt engineering will be limited to toolmakers, not law trained graduates who use the tools. It may well be useful to become proficient with AI or to have a legal background as a prompt law engineer.

*Global Supervisor. *Clients have interests that span countries and governments and involve ethnic and cultural diversities. Advocates will represent these expanded international interests and be versed and experienced in diverse geographical and geopolitical matters.

*Online Dispute Expert. *Dispute resolution services will continue to evolve beyond physical locations, digital hearings, video conferences, online submissions, and cyber proceedings. See § 1.3(D). The ongoing development of computer software and hardware may create cybernetic service locations for hearings and trials.

The Advocate

A. The Goal of the Advocate

Our goal is to win. This objective is the aspiration of advocates. A case is tried because other alternative efforts at resolving the dispute—negotiation, bargaining, and mediation—have been unsuccessful. The client anticipates victory, and counsel must make every reasonable effort to succeed. However, this goal of winning must be kept in perspective, for this end does not justify all means: ethical rules and norms must be maintained.

The advocate uses all reasonable approaches to present a case to secure a favorable outcome. This all-out effort is governed by rules, ethics, and common sense. A process that involves unreasonable approaches or acrimonious relations does not serve the interests of the client or the system of justice. The effective advocate must be determined, persistent, and compassionate.

B. Roles of Advocates

The most recognizable role of an advocate is to prepare and present the best possible case for a client. Another major role is as a risk assessor and dispute manager. Lawyers who are not advocates have related roles. Corporate in-house lawyers, transaction attorneys, legal professionals, and of counsel consultants advise clients about prospective legal risks. They often consult with advocates to determine the prospects for potential disputes, and they also frequently manage advocates.

Advocates perform a variety of specific tasks and roles:

• A legal analyst who assists parties in preventing disputes,
• A learned counselor who provides sound advice to clients,
• An officer of the court who follows ethical norms,
• An investigator who gathers and preserves information,
• A facilitator who promotes alternative resolution methods,
• A negotiator who makes good faith efforts to settle cases,
• A litigator who drafts pleadings and conducts discovery,
• A planner who prepares and argues motions,
• A manager who supervises support and IT staff,
• A collaborator who works with other professionals,
• A storyteller who crafts a persuasive, compelling narrative,
• An appellate lawyer who brings or defends an appeal, and
• A wise analyst who helps forecast and prevent future disputes.

An advocate may also perform other analogous professional functions:

• An artistic lawyer who is creative and imaginative,
• A scientific grounded attorney who is rational and logical,
• A technologist who implements GenAI and LLM technology,
• A lawyer psychologist who understands human behaviors,
• A legal historian who recreates time past, and
• An advocacy director who directs a dispute resolution play where the court or hearing room is the theater, the witnesses are actors, the exhibits are props, and the decision maker is the audience.

C. Character Traits

Our personality and character traits influence our professional approach and behavior. Effective advocates possess integrity, honesty, fairness, compassion, and respect for others. Lawyers who take unjust advantage of situations or who are disreputable will not be perceived as honorable or trustworthy.

Clients, attorneys, and decision makers must be able to trust an advocate. They rely upon the lawyer’s word and explanations. An untrustworthy attorney is an ineffective advocate.

The lawyer must also display a sincere and genuine belief in the merits of the client’s case. Parties expect this of their advocates. The lack of sincerity may cause decision makers to conclude that the attorney does not believe in or care about the case.

Additionally, lawyers encounter a full range of personality temperaments displayed by opposing counsel, witnesses, arbitrators, judges, and jurors. These individuals may be courteous or rude, cooperative or hostile, friendly or arrogant, pleasant or intimidating, dependable or unreliable. The advocate must adopt various approaches to deal with this broad spectrum of personalities.

D. Balanced Approach

Wellness, good health, and self-improvement are essential to the makings of a successful advocate. Attorneys suffer anxiety and stress due to: the pressure to win, unrealistic expectations, fear of failure, inadequate fees, excessive expenses, embellished ego, tension, worries, fatigue, peer pressure, neglect of personal and family matters, emotional withdrawal, and preoccupation with a case. Lawyers may take cases for professional and financial rewards and may also accept them to work with a specific client, obtain publicity, achieve fame, surmount a challenge, satisfy a legal fantasy, change the law, protect a client’s rights, or promote justice.

A number of effective ways advocates can deal with stress and anxiety while maintaining a balanced life include:

• Before accepting a case, reflect on the reasons why you are taking the case and your expectations.
• Maintain a proper relationship with the client. Involve the client in making decisions and avoid being too controlling.
• Don’t worry about events or matters that can’t be altered. Learn to let go and accept what cannot be changed.
• Assess your legal fees. You need to be fairly and timely compensated for your work, unless you are working pro bono.
• Monitor advocacy expenses. Clients are responsible for costs and need to be informed of expenses as the case progresses.
• Acknowledge problems, and seek reasonable resolutions.
• Expect that relationships with family and friends will be disrupted and ameliorate these situations.
• Discuss your feelings and attitudes with family members and colleagues.
• Monitor your workload to avoid becoming overwhelmed.
• Delegate responsibilities and tasks, and don’t interfere or second guess unnecessarily.
• Consider using other resources, such as GenAI and LLMs.
• Exercise your body regularly as well as your mind.
• Avoid alcohol and drugs and other harmful escapes.
• Afterwards, discuss the case with your client and colleagues.
• Celebrate the experience, whether you win or lose.
• Take a break and enjoy some rest and relaxation.

E. Client Relations

Clients place their legal fate in the hands of advocates. This reliance places enormous responsibility on the lawyer to justify the client’s trust. The exact relationship between the client and the attorney varies depending upon the needs of the client, the party’s familiarity with the legal system, and mutual views of the appropriate relationship. The key to an effective client/advocate relationship is communication and the continuing involvement of the client with the case.

The client and the lawyer in consultation with each other can identify the interests of the client, consider potential ways to compromise or win the dispute, and select a course of action to succeed. Clients may best determine what their needs are with the advice of counsel. The more a decision has a substantial legal or non-legal impact on a client, the more crucial it is to have the client involved in making that decision. The more a decision involves professional expertise and skills, the more likely it is the advocate can wisely make the decision.

Expectations by clients of their lawyers evolve. The more knowledgeable and sophisticated they are, the more demands they may place on their attorneys. In-house counsel, executives with law degrees, and parties with previous experience with litigation may expect high levels of efficiencies, alternative fee arrangements, cooperative relationships, all hopefully leading to future legal work for reasonable fees.

Clients expect their advocates to be proficient, skillful, accessible, talented, and reasonably affordable. There can be inherent tensions between what is the best course of action for a client and what is in the best financial interests of a lawyer. Ongoing and open discussions between clients and attorneys regarding these and related issues help create trusting and collaborative relationships.

F. Collaborative Relationships

Advocates engage in a variety of collaborative relationships. There are simple cases that may only require the skills of one advocate to resolve, or clients may only have the resources to retain a single lawyer. More complicated cases involve attorneys managing a support staff of paralegals, law clerks, IT consultants, prompt law engineers, experts, and other professionals. Complex and multi-district litigation cases commonly require teams of lawyers to work together.

Lawyers need to develop skills of cooperation and collaboration to succeed in these types of cases. Clients may retain several law firms in complex cases, one to handle discovery, another to work on potential settlement options, and still another to try the case. Some business clients divide advocacy tasks into components and out-source these jobs among specialized lawyers, legal research firms, case management administrators, document review companies, technology and AI specialists, financial experts, legal audit consultants, and other professionals.

Civil Dispute Resolution Systems

A. Litigation

Lawsuits may be brought in federal or state court, whichever has proper jurisdiction. Federal courts resolve disputes involving federal statutes and the federal constitution, disputes between citizens of different states in excess of $75,000, and special cases such as patent disputes and bankruptcy. State courts are courts with general jurisdiction and hear the vast majority of judicial disputes.

A plaintiff begins a lawsuit by serving a summons and complaint on the defendant who can reply with an answer. Litigation proceeds with the parties conducting discovery and bringing motions, with the case perhaps eventually resulting in a bench or jury trial. Federal and state constitutional and statutory provisions provide parties with the right to a jury trial in civil cases involving money damages. Other cases, including injunctive relief cases, are tried to a judge. Any party with grounds may appeal to an appellate court.

You learned all this in civil procedure. Litigation may be the only remedy available and may be the last resort parties rely on to have their dispute resolved because the trial process can be very expensive, time consuming, and painful. Other forums may be available or exclusive.

B. Arbitration

There are two primary types of arbitration. One is a contractual process where a neutral arbitrator (usually an experienced lawyer or a retired judge) conducts a hearing and issues a final, binding award. Procedural rules govern the case, such as the Forum Code of Procedure, which provide for discovery and motions. This system is widely used in numerous types of disputes and is becoming the preferred way businesses, companies, individuals, employees, and consumers resolve differences. Arbitration is typically more affordable and faster, and as fair as a trial.

Arbitration clauses appear in all types of agreements and relationships, including commercial contracts, financial documents, employment relationships, adhesion contracts, health care transactions, insurance contracts, and business agreements. Other forms of contractual adjudication include labor union/management arbitrations and professional sports arbitrations.

Another type is a non-binding process (often called court-annexed arbitration) that is mandatory in some jurisdictions. In this non-binding pretrial proceeding, a neutral arbitrator hears evidence and arguments and renders a decision. If the award is acceptable to both parties, the lawsuit is dismissed. If the decision is unacceptable, the case goes to trial.

C. Administrative Hearings

Administrative hearings typically resolve disputes involving government benefits or statutory remedies. A party may file a petition with an administrative tribunal, and an administrative law judge (ALJ) holds a hearing and decides the case. These proceedings are often similar to bench trials. The availability of discovery and motions may be limited.

Controversies resolved through federal and state administrative hearings include workers compensation cases, unemployment compensation claims, tax cases, social security claims, welfare actions, and other statutory and rule based claims. Administrative claims may also involve regulatory remedies with parties involved in a dispute over the enactment or enforcement of government regulations. Examples include utility rate setting actions and environmental cases.

D. Online Advocacy solutions

Parties with the assistance of lawyers or on their own may use modern electronic, digital, and computer assisted systems to obtain civil resolutions. Claimants may submit their claims and respondents may file their defenses online. The participants may present their evidence through online submissions. Arbitrators or hearing officers may review these submissions online and issue cyber decisions resolving the case. Examples are private association disputes and routine business disagreements.

E. Hybrid Dispute Resolution

An evolving contemporary resolution system involves a blend of traditional and modern methods to resolve civil disputes. Arbitration and administrative law cases may include a variety of communication methods to submit and present cases, including personal and video presentations, electronic submissions, and online conference hearings. Modified judicial proceedings may also incorporate some of these hybrid methods, while carefully preserving constitutional and statutory rights.

Not all future disputes may be resolved through our traditional notions of due process and in-person or remote hearings and trials. International diversity and cultural differences shape how global disputes are fairly and efficiently resolved. Advanced communication modes may develop methods for distant appearances in advocacy proceedings. As other professions, businesses, and government agencies develop cyber systems to conduct their work, dispute resolution forums may adapt their procedures to adopt similar methods providing fair, accessible, and affordable justice.

approaches See § 1.10[E].

Alternatives to a Trial or Hearing

Before placing their fate in the hands of an arbitrator, ALJ, judge or jury, clients and advocates need to consider how else a dispute may be resolved. Parties may be more likely satisfied if they control their fate through a settlement or other alternative dispute resolution (ADR) process. These include traditional methods involving personal interactions as well as video conferencing and email/text/online exchanges or AI-backed methods. Major dispute resolution methods are discussed below.

A. Negotiated Civil Settlements

Negotiated settlements are an essential part of the dispute resolution process. The large majority of civil cases are settled. Various factors influence the results of negotiation practice, including the willingness or unwillingness of the parties to go to trial or proceed to a hearing and the experience and ability of the attorneys to try cases.

Judges often take an active role in negotiations by encouraging and becoming directly involved in settlement conferences. Judicial approval or consent is not normally required for settlement of civil litigation unless the case involves a class action or an injury to a minor. Many judges require the parties to use a mediator. Arbitrators and administrative judges tend not to become involved in settlement talks as their primary role is to conduct a hearing and decide the case.

The type of settlement agreement depends upon the nature and circumstances of the civil case. Universal settlement documents include a release and a dismissal with prejudice that dispose of a case. The release is a contract between the disputing parties finalizing the settlement terms. The dismissal may be a stipulation executed by the attorneys, or an order signed by the decision maker based on an agreement of the parties. Federal Rule of Civil Procedure 41, similar state court provisions, arbitration rules, and administrative procedures commonly regulate these dismissals.

B. Criminal Plea Agreements

Criminal cases also involve negotiated settlements through plea bargaining. This process involves the prosecution and defense agreeing on a resolution that avoids the need for a trial, with the judge’s consent. The defendant is willing to forego a jury or bench trial and accept a plea to a lesser charge with the expectation of some leniency, and the prosecution is willing to compromise on the charged crime and punishment.

A defendant may plead guilty to the charges or enter a nolo contendere plea or admit to an “Alford” plea, depending on the jurisdiction. The defendant may plead “no contest” and neither agree nor disagree with the charges. With some pleas, the defendant neither admits guilt nor asserts innocence. With others, the defendant may admit that the evidence would be sufficient to convince a judge or jury of guilt, with the same effect as a guilty verdict.

Ultimately, defense counsel, the prosecutor, and the judge all have an obligation to make sure that the defendant fully understands the plea and its consequences and is voluntarily waiving constitutional rights. Commonly, an allocution of the defendant occurs with the judge asking questions of the defendant or the defendant admitting statements of fact or guilt. The plea agreement must be legally sufficient to support a conviction, and the judge must consent to accept the plea deal.

The penalty portion of the plea deal may include a variety of criminal sanctions. A sentence may be reduced in length or consequence, e.g., accepting life imprisonment in lieu of the death penalty. A monetary sanction may be imposed, e.g., restitution or a fine. A probation term may be set, e.g., five-years probation. And time served in jail may substitute for all or part of a prison sentence.

Criminal cases are typically resolved with a plea agreement. This resolution method is commonly accepted where: cases have strengths and weaknesses and compromise is appropriate, court dockets are over-crowded, prosecutors have too many cases to try, and defendants are guilty. Plea bargaining is a widely acceptable way of resolving criminal cases and achieving satisfactory criminal justice.

C. Mediation

Mediation is an informal process where a neutral professional assists the parties in reaching a mutually acceptable agreement. The mediator’s primary role is to facilitate a negotiated settlement between the parties. The mediator does not decide any issues or make any decisions but may offer opinions and predict likely outcomes. Mediations may be effectively conducted in person or online through video and audio communications. In many jurisdictions, mediation is compulsory in civil cases, and the parties must attempt to mediate a settlement in good faith before proceeding to trial. Although mediation is not commonly used in criminal cases, a mediator may assist the prosecutor and defense with a plea bargain to be approved by the court.

D. Fact/Issue Finding

Fact/issue finding is an informal process in which a neutral third person selected by the parties or the court reviews the civil case and submits a written or oral report that identifies and evaluates disputed facts and issues. This process is useful in resolving complex scientific, technical, business, or economic issues where the presentation of proof is extremely difficult, expensive, and time-consuming. The use of a highly experienced neutral assists the parties in reaching agreement on the undisputed and disputed matters. The neutral professional may be appointed by the court under Federal Rule of Evidence 706 or similar state rules.

E. Mini-Trial

A civil mini-trial is a private, consensual proceeding where counsel for each party makes a short presentation before a panel consisting of a representative of each of the parties and a neutral third person. This process, with the assistance and perspective of the neutral panel member, assists the parties in understanding both sides of the case in an effort to reach a mutually acceptable agreement.

F. Summary Jury Trial

A summary civil jury trial is a proceeding conducted by a judge, magistrate judge, or court appointed neutral with a mock jury selected from a jury list. It is a truncated jury trial condensed to one or more days in length, and sometimes is administered with the assistance of a private consultant. Counsel for each party makes a presentation consisting of a brief opening statement, the summary introduction of key evidence, and a closing argument. The jury deliberates and renders an advisory verdict or verdicts, which provide the parties with a reliable basis to predict what jurors would do after a complete trial. One party may unilaterally conduct this summary trial privately seeking the help of mock jurors as a focus group to evaluate the case. These methods are primarily used in major cases that are difficult to evaluate and where other ADR methods have been unsuccessful.

G. Moderated Settlement Conference

A moderated settlement conference is a forum for civil case evaluation and structured settlement negotiations between the parties and their attorneys. The advocates present their cases before an impartial professional or a panel of impartial third persons who evaluate the case and render an advisory non-binding opinion for use by the parties in settlement negotiations. This method may be used in non-jury cases.

H. Collaborative Law

A balanced approach to resolving civil disputes is known as the collaborative law method. The parties with the help of a professional versed in dispute resolution agree on their own process to settle their dispute and then proceed to follow that process to a resolution. The professional seeks to involve the parties in a mutually cooperative approach and result, which can be very effective in family law cases.

I. Private Judging

Parties to a civil dispute may agree to submit their dispute to a private “judge” for resolution. This person may be a former judge or special neutral or referee. Parties may prefer an expert who has experience deciding similar cases, and the hearing may be able to be scheduled much more quickly than a public trial and conducted more privately. The process is akin to an arbitration proceeding. In some states, the decision by the private judge can be enforced as if it were a civil judgment or may be reviewable by a public judge.

J. court appointed neutrals

Experienced and expert professionals may serve as court appointed neutrals (CAN) to assist the parties, lawyers, and judges in resolving all types of disputes. Federal Rule of Civil Procedure 53 permits these proficient and capable neutrals to serve a variety of roles that help cases proceed promptly and result in fair settlements. Similar state court rules allow for the appointment of skilled judicial adjuncts to perform these roles. See § 3.7(E).

These neutrals save parties time and money, assist lawyers in reaching accords, and help courts resolve cases. These judicial neutrals often serve in complex cases, class actions, multi-district litigation, and may serve in an appropriate criminal case. More information about their services can be obtained from the Academy of Court Appointed Neutrals (ACAN) at www.courtappointedneutrals.org.

K. Court Mandated or Consensual Process

A growing number of jurisdictions are mandating the use of one or more of these alternatives to resolve civil disputes prior to trial. Some states require the parties to attempt an ADR method (usually mediation) before a case may proceed to trial. Other decision makers by statute or rule have discretion to require parties to submit to a resolution procedure.

Parties may also agree to use one or more ADR methods instead of relying on the court system to solve their problems. Some parties believe the judicial system is too costly, too slow, and too unpredictable. They may well prefer and choose private mediation and binding arbitration to resolve their problems. This process is known as a med-arb proceeding, with the parties initially attempting to mediate, and if that fails, they then arbitrate their dispute.

Storytelling Techniques

Advocates are storytellers, and effective storytelling techniques are adaptable to advocacy. Advocates use language, images, words, pictures, and other devices to tell a compelling, interesting, and persuasive story. Good storytellers immediately draw the listeners into the story and maintain their attention throughout. Playwrights establish the circumstances of time and place, introduce the protagonists, develop a conflict, and then present solutions to the conflict. Advocates can look to these and other approaches in crafting a convincing story.

There are a variety of professions beyond the legal profession that focus and rely on storytelling as part of their success. Ingredients basic to all effective stories include narrative theory and story construction. Narrative theory provides the basis to understand the contents of what constitutes an effective story. Story construction can be an essential step in case planning and preparing the case for presentation.

Attorneys need to make choices in creating story lines. They can review and shape what happened and why, what really matters, what are the plot lines, who are the main characters and other actors, and what are the crucial factual issues and legal elements. The ending of the story concludes with the best way to resolve what happened—a choice ultimately to be made by the decision maker.

Advocates have alternative ways to tell their stories. There are critical decisions to be made regarding what is included in the story and what is left out, what is emphasized and what is minimized, and what solutions are available to resolve the dispute. That’s why it’s vital for clients to be involved in deciding what story is best told. Parties want to be proud and pleased with the story being presented by their lawyers, and they need to make their preferences known. The facts, the law, and client goals largely shape these choices.

A variety of other factors discussed below and in subsequent chapters influence the ultimate decisions and the final story to be told.

A. Use Primacy and Recency

People remember best that which they hear first and last. The doctrines of primacy—what a person hears first—and recency—what a person hears last—may dictate when critical evidence ought to be introduced during a case. These doctrines apply to the case as a whole as well as to each stage of the trial or hearing, including the opening statement, witness examinations, and the closing argument.

B. Reasonably Repeat Information

The more times individuals perceive something the more likely they will believe it and remember it. Evidence can be referred to a reasonable number of times to increase the chances that the fact finders will recall and believe it. What is reasonable depends on the circumstances of the case, the length of the case presentation, and the manner in which the information is repeated.

C. Rely on the Rule of Three

Advocates: explain what happened (opening statement), detail what happened through witnesses and documents (evidence), and summarize what happened (summation). This format follows a rule of persuasion: “Tell them what you are going to tell them, tell them, and tell them what you have told them.”

D. Establish Realism

A successful play or movie captures the audience so they overlook that they are attending a play or watching a movie. A poorly presented dramatic act makes the audience aware of what they are watching and anxious for the end of the make-believe story. The advocate, paralleling the goal of the playwright, may prefer that the fact finders forget they are decision makers at a trial or hearing and instead believe they are observers at an actual event unfolding before them.

E. Develop Human Interests

Advocates need to make all cases as interesting as possible to hold the attention of decision makers and influence the final outcome. Some cases are interesting by their very nature. For example, a murder case or a civil disaster event is inherently dramatic. Other cases, such as those involving commercial litigation and real estate, are not nearly as exciting, but can be made interesting.

For example, every commercial case is about people making business decisions. The advocate must present these people and these decisions in as stimulating a way as possible. As another example, every real estate case involves a unique piece of property. The advocate might be able to establish the special value or historical nature of this property to increase the interest level of the case. Even with seemingly mundane facts, the advocate must create and develop as much interest as possible so the fact finder will more likely absorb and remember the events.

Enhancing the humanistic aspects of a client, issue, or case also helps the fact finder understand, appreciate, and empathize with a party. This enhancement may create a “connection” or, even better, a “bond” between the decision maker and a party. This approach parallels other storytelling developments.

F. Enhance Emotions and Reactions

An advocate may be able to use the emotions inherent in a case as an actor relies on the emotions intrinsic to a play. An actor does not become the source of an emotional catharsis; it is the reenactment of an event that creates cathartic reactions in the audience. A good actor leads the audience to the threshold of emotion, and the culmination of that emotion is felt by the audience. An advocate tries to create an atmosphere in which the decision maker is affected by emotions at the right time. For example, in a wrongful death case, the plaintiff’s lawyer wants the jurors to feel grief in such a way that their compassion favorably affects their judgment during deliberations.

G. Enrich Visual Senses

Studies and experience reveal that individuals remember a much larger percent of what they both see and hear compared to what they just hear. Contemporary educational and entertainment approaches are designed to involve and influence multiple senses. People often communicate with images and videos and icons, such as emoticons and emojis, to augment or replace the printed word.

The use of documentary and computer exhibits and visual aids in advocacy cases increases the likelihood that the fact finder will recall and understand specific evidence and presentations. Increasingly, GenAI permits lawyers to readily create images, videos, diagrams, charts, and icons that are high quality and very effectual. These can be crafted without the need to hire experts—further democratizing the use of these tools, regardless of client budgets. Chapter 8 describes the use of effective exhibits.

H. Utilize Impact Words

Individuals react to words that are used to describe an event. Descriptive words emphasizing specific facts of a case create more vivid images of an event than neutral words. Descriptive language includes impact words that graphically describe a situation, such as “smashed” instead of “hit,” “huge” instead of “large,” and “shrieked” instead of “yelled.” These impact words affect the fact finder’s perception of what happened and are more easily remembered.

Impact words should be factually specific to accurately convey what happened and not exaggerate conclusions unsupported by the evidence. Thesauruses, dictionaries, and works of literature may serve as sources of such words and phrases. For example, in a truck/bicycle accident case, when the accident is described by the plaintiff merely as an “incident” this neutral term will not create a specific image of the accident. When the accident is described as a “violent crash” or “brutal collision,” a more graphic image of the accident is portrayed.

I. Create Images

Individuals learn and understand by forming images in their minds. When fact finders hear a word or listen to a description of an event, they visualize images based on what they have heard from a lawyer or witness.

For example, when an attorney says the word “chair” to a fact finder, each decision maker draws a mental image of a chair. That image might be of a wooden chair, a padded chair, a rocking chair, a desk chair, or a plastic chair. The advocate must make certain that the actual chair involved in the case is the image the fact finders picture in their minds. The more vital the details of this chair are to the case, the more precise the attorney must be in presenting details that give an accurate picture.

As another example, when an attorney asks jurors to assess damages for pain and suffering, the attorney must use words that make the jurors feel the pain and suffering. Injured parties need to describe what the injury really felt like. Witnesses need not only say they had a headache, but that it felt as if something was inside their throbbing head pounding with a massive hammer. Witnesses need not merely say that their leg was cut by a chain saw, but that they felt an intense scorching pain of hot sizzling metal slicing through their flesh.

J. Augment Imagination

The images created in the mind of a fact finder may be clear or hazy, complete or incomplete. An ideally communicated image should involve the senses and should reflect all significant details of an event. This, however, is impossible because everything cannot be completely recreated. The lawyer must make the critical images as realistic as possible to enable the fact finder to picture the event vividly and accurately. For example, counsel may need to decide whether to introduce a photo or a graphic image of a relevant chair or rely on the fact finder to imagine that chair.

K. Consider What Is Presumed

There is not enough time in a trial or hearing to introduce everything that could or even should be introduced to help the fact finder understand all the facts and circumstances of a case. Evidence law limits facts to those that are relevant. Common sense presumes the fact finder knows a lot about some things in a case based on information that is not introduced as evidence. There are many factual details that are never even mentioned that advocates presume everyone understands sufficiently.

For example, in a cycle accident case, it is presumed that fact finders realize that a bicycle has two rubber wheels, a seat, and a handle bar. Unless these factors are a major issue in a case, there are no detailed facts introduced to explain these basic components. To do so, would likely insult the fact finder. Advocates need to be aware of the general or specific facts that are presumed to be known to determine if they need to explain or augment any of those facts.

L. Employ Understandable Language

Clarity of expression is critical. Simple and clear language is preferable to complex legalese. Large words used only to show off vocabulary skills irritate the decision maker, while overly simplistic words and explanations sound condescending. Counsel need to select language appropriate to the background and experience of the fact finder.

M. Be Reasonably Brief

Audiences, including professional decision makers and jurors, have limited attention spans, which can be maximized if the presentation is interesting, dramatic, reasonably paced, and well presented. The length of a presentation must be based not only on what must be said, but also on the likely attention span of the finder of fact. The advocate needs to observe the decision makers and tailor a presentation to make certain they are paying sufficient attention.

Fundamental Approaches

of Persuasion

This section explains established and proven methods of persuasion that significantly influence the presentation of a case and that apply to all phases of a case.

A. Recognize Values and Principles

Decision makers often interpret facts, apply the law, and make choices based on their values, norms, principles, and beliefs. A primary task of an advocate is to attempt to identify these tenets and predict how a decision maker will decide an outcome consistent with these standards. Subsequent sections of this text will explore how advocates can best accomplish this critical task.

B. Actively Involve the Fact Finder

A fact finder who becomes mentally and emotionally involved in a case is more likely to be interested in the case and more likely to believe and remember evidence. The goal is to present the events in such a way that the fact finders think they are a part of the case, perceive they are observing what actually happened in the past, and feel the emotions of the situation. In a robbery case, the prosecutor may design questions that invite the fact finder to view the crime as if they were there in the moment instead of considering it from a distance as a past event. For example, questions to a witness such as the following may engage the fact finder to be at the scene: “As you began walking that first block from the bus stop, describe what you saw. . . . And as you hurried down the second block past those empty lots, describe what you heard. . . . And as you crossed to the third block after you heard those sudden footsteps, describe what you felt. . . .”

C. Focus on Responsibility

Most disputes involve issues of responsibility—and irresponsibility—and accountability—and the failure to be held accountable. Plaintiffs portray defendants as having breached their contract duties or tort responsibilities. Defendants assert that plaintiffs refuse to be held accountable for mistakes they made in breaching a contract or causing an accident.

These dual themes often determine who wins a civil case. The goal of the plaintiff is to establish that the defendant ought to be held solely or more accountable for errors; and the goal of the defendant is to show the plaintiff is more irresponsible and ought to lose. The reality is that both parties to a civil dispute usually acted in some questionable way and that both should be held accountable for their errant conduct. Whichever party convinces the decision maker that the opposing party is more irresponsible will usually win. Whichever party the decision maker believes ought to be held* more accountable* will typically lose.

D. Reveal Inconsistencies

Disputes obviously involve differences of facts, opinions, memories, and perceptions. In determining which party is right and which is wrong, the decision maker needs to understand the scope and degree of these inconsistent positions. The advocate can identify and emphasize the sources and reasons behind these differing viewpoints or positions. Once identified and highlighted, counsel can provide relevant and reliable evidence why their client is right and why the opponent is wrong.

E. Present Alternatives

The advocate must obviously avoid presenting mutually contradictory positions. Some situations require a presentation of alternative explanations. These presentations are most effective if they are described as alternative and not contradictory positions by avoiding the use of the terms “but” or “however.” It is better to affirmatively state a position and then add another explanation, using such terms as “moreover” or “further.”

For example, in a personal injury case, the plaintiff may contend that she was hit in the crosswalk while the defendant contends that she was hit outside the crosswalk. Plaintiff’s counsel could argue that plaintiff was in the crosswalk when she was hit, or even if she wasn’t in the crosswalk, she was hit negligently by the defendant outside the crosswalk. A more effective explanation to avoid this contradictory statement is: “The defendant negligently struck plaintiff where she was walking; moreover, we will prove that she was walking in the crosswalk.”

F. Offer Simple Explanations

The more straightforward and less convoluted an explanation, the more likely it will be understood. Counsel should provide the fact finder with as simple and credible an explanation of what happened as possible. This type of presentation fulfills the need of many decision makers hoping or expecting a reasonable, straightforward answer to explain a conflict, even when issues appear difficult or complex. This approach parallels the philosophical principle that the simplest explanation is most likely true, feasible, or achievable.^[1]^

Unfortunately, lawyers are not always trained to develop simple explanations, but are often taught in law school to present complicated explanations of both sides of a case. For example, in analyzing a criminal case, a criminal defense lawyer could argue that the defendant was not present at the armed robbery, or if the defendant was present, the defendant was not holding a gun, or if the defendant was holding a gun, it was used in self-defense. These possible explanations may generate a high grade in a law school exam, but will only convince a fact finder of the defendant’s guilt.

G. Identify with the Decision Maker

Decision makers are more likely to believe or favor a party if they can identify with that individual. Perceiving similarities between themselves and the witness or party helps form this identification. Fact finders may not consciously disbelieve a person because they do not identify with that witness; but the more a witness or party has in common with a fact finder, the more likely the fact finder will identify with and believe that individual.

Background information that establishes connections between the witness and the fact finders should be emphasized. Specific examples of similarities can be described during the direct examination of the witness. The questions should not be so numerous or obvious that the fact finders perceive that the witness is inappropriately being portrayed to be like them.

Elements of Advocacy

There are a variety of approaches to effectively trying a case. These variations reflect differences in opinions among successful advocates. This section describes alternative approaches to case presentation.

A. The Persuasive Advocate

Many lawyers believe that advocacy requires them to convince the decision maker of the correctness and righteousness of their client’s position by attempting to “sell” the position to the decision maker. Typically, these advocates insist that the decision maker find “in favor of” or “for” or “on behalf of” their client. The underlying premise is that a party deserves a certain result because the attorney has convinced the decision maker that party is entitled to win. A variation of this approach is to substitute “justice” for the “client” by arguing that our system of justice requires a result that favors the client, and to do otherwise would be unjust.

Another view is that the advocate provides the decision maker with favorable evidentiary information which lead reasonable people to come to one conclusion. This approach does not require that the attorney usurp the decision maker’s function. The responsibility remains on the judge, jury, arbitrator, or administrative law judge to reach a decision based on the facts, the law, and justice. Rather than attempt to cajole, sell, or otherwise convince the decision maker, the lawyer simply says: “Here are the facts, here is the law, and the result you should reach is clear.”

An approach that combines the benefits of both approaches may be most effective. The benefit of the first adversarial approach is that it can result in a very persuasive and compelling presentation, while a disadvantage is that the advocate may appear to be inappropriately partisan and manipulative. The benefit of the second approach is that the decision makers reach their own conclusion based on the information the attorney presents to them, while the disadvantage is that the attorney may appear to be uncertain or unconvincing.

B. Involvement of Attorney

The degree to which advocates should involve themselves in cases is a matter of disagreement among attorneys. Some argue that lawyers should not emphasize their specialized views during the case, while others argue that it is critical to establish their professional belief. By belief, we mean it appears to the decision maker that the advocate believes in the client’s case. This is distinguished from the advocate’s personal belief or opinion that cannot and need not be expressed. See Sections 1.9(C) on ethical duties and 11.7(D) on improper personal arguments. It is critical that the decision maker recognize that the lawyer believes in the client’s cause. Otherwise, it may appear that counsel is uncertain who is right and who should win.

Advocates who suggest that the display of involvement is necessary say things like “I will prove to you” and “We will introduce evidence to convince you of these facts.” Advocates who suggest that their involvement should be diminished use phrases during the case such as “You will hear evidence and you will conclude. . . .” These two positions do share common principles and may differ only in the emphasis placed upon them. The decision maker must be given the impression that the attorney believes in the client and the case presented. A decision maker is unlikely to find in favor of a party whose lawyer expresses doubts about whether that client should be victorious.

C. The Objective Partisan

The advocate has a dual role that needs to be balanced: being both a partisan and an objective participant. The attorney as partisan needs to present selective evidence to the fact finder and zealously argue for the client’s position. The attorney as objective participant must appear to present evidence in an objective way and provide reasonable explanations. If the decision makers perceive that a lawyer is too partisan, they will be less likely to believe the lawyer. Likewise, if the decision makers perceive that a lawyer is too objective, then they may be less influenced because the lawyer does not appear to advocate a position.

D. Open-Minded Decision Makers

It is difficult, if not impossible, for the decision maker to have a completely open mind before or during a trial or hearing. Fact finders may well have some biases and prejudices. Some decision makers may be partial to one side or the other, while others as a matter of first impression may be inclined to favor one party over another. Many advocates believe that no decision maker ever has a completely open mind and present their case based on this premise. Attorneys recognize that decision-making processes in cases may parallel other life experiences.

At the early stages of a case, the decision maker will begin to form impressions about the case, the lawyers, and the parties. The notion that decision makers impartially absorb information during a trial or hearing and wait to decide a case can be inaccurate. Some fact finders selectively listen for evidence that supports their initial inclination or position. Evidence that does not support their position is rejected, disbelieved, rationalized, forgotten, or not even heard. Some decision makers make up their minds well before the closing argument.

The lack of open-mindedness on the part of fact finders can affect the way an advocate presents a case. The goal of the lawyer is to provide information and reasons sufficient for the decision maker to want to find for the lawyer’s client early in a case, and then to continue to provide information and reasons to support that decision during the trial or hearing. It is much more difficult to change someone’s mind once it is made up or to alter an opinion once it’s formed.

The opening statement is an opportunity to remind the decision maker to withhold early judgments. The case presentation can be tailored to provide specific evidence and supportive facts to overcome perceived or real biases and prejudices. And summation is the last chance to explain how the facts and law support the favored outcome.

E. Recollections of Witnesses

In preparing a case, an advocate must determine the degree to which each has an accurate memory of an event. There exists a range of opinions among professionals regarding the ability of witnesses to observe and remember specific facts. Case experiences, psychological tenets, and empirical research augment these positions.

Some advocates suggest that eyewitnesses do not likely remember much. These attorneys believe that witnesses draw on the recollections they have, collect evidence from other sources (such as other individuals or documents), and use the law of probability to form a recollection. Other lawyers believe that eyewitnesses are able to draw upon the resources of their memory and accurately (or fairly accurately) recall things that happened in the past. The more reliable memory depends upon the ability of that witness to perceive and remember the event, the impact the event had upon the individual, the degree of neutrality and impartiality, and whether the person had any reason or expectation to notice or recall the event.

Cases which arise from situations that the parties did not anticipate may result in less complete and accurate recollections. For example, in a typical accident case, the parties do not expect they will be involved in an accident and have no reason to focus on the events that occur before an accident. There is little reason for them to concentrate on remembering actions or conversations occurring before the incident.

After the accident, however, witnesses to the event may pay close attention to what is said or how people act because they may expect to be called on to give a statement. It is more likely that the later part of their stories will be more complete and accurate. For another example, in a criminal case the victim may or may not have good reasons to be able to identify the defendant. Some victims are so scared or frightened during the crime that they are unable to look at the criminal, while other victims may want to get a good look so they can later help catch the criminal.

Advocates need to consider the impact of psychological reactions and experiences. Script theory is a psychological precept that suggests that human thought and understanding fall into patterns of familiar images, recognizable views, and specific events. The underlying concept is that humans view new facts as resembling pre-existing facts and harmonize new information with what they know and have experienced.

For example, as an attorney introduces evidence into a case regarding a store, the fact finder will begin to form images of a store. As the witness describes a parking lot, entrance, shopping cart, aisles, fruit displays, deli section, and check out, an image of a grocery store will gradually form in the mind of the fact finder that resembles stores familiar to the fact finder. The goal of the lawyer is to modify that image and frame a story that accurately reflects a depiction of the real and relevant grocery store at issue in the case.

F. Testimonial Truthfulness

The outcome of many, if not most cases, turns on the decision of the fact finder whether or not to believe witnesses. Credibility, believability, and truthfulness often determine the outcome of a case. There are two sides to these issues: one is the capability of a witness to tell the truth or a lie, and the other is the ability of the fact finder to discern whether a witness is lying or telling the truth. Psychological studies, sociological research, and legal case data provide insights into these issues.

Regarding the first issue, empirical research surveys show that many witnesses add details that they did not perceive and that they do not actually recall. This “filling in the details” phenomenon is often done unconsciously and without the witness intending to embellish or mislead. Some witnesses, however, intentionally exaggerate or lie. For example, cases involving the wrongly convicted who are subsequently freed based on DNA results demonstrate some of the inaccuracies and injustices of eyewitness identification.

Expert psychologists and sociologists have conducted extensive research on the malleability of human memory. These professionals have studied various deficiencies inherent in witnesses being unable to provide correct and consistent versions of events and conversations, caused by poor memories, parallel experiences, prejudices, peer pressure, and biases. These and related studies raise serious questions about the accuracy of some witness testimony. Advocates must address these concerns in presenting and in challenging testimony.

Regarding the second issue, the prevailing view, supported by clinical studies and data, is that fact finders may have a difficult time discerning whether a person is telling the truth or a lie. Professional decision makers including judges, arbitrators, and administrative law judges fare no better or worse, on average, than jurors in ascertaining truth tellers from frauds. This is significantly due to the “truth default” theory involving human honesty and deception detection.

It is fairly well established that humans have a propensity to believe each other, or to prefer to believe others, especially if they like or identify with them. It is more likely than not, it is generally believed, that people will be telling the truth (perhaps with some embellishment), rather than a lie. And so, many fact finders have a tendency to believe witnesses, and particularly, those that testify under oath. Contrarily, fact finders may discount or disbelieve witnesses they dislike or distrust, and more so if they harbor express or implicit biases or prejudices.

These realities affect the roles and responsibilities of advocates. The assessment of credibility and believability is a paramount objective in a case. Two opposing parties tell different tales, and it may well be that one, or both, are misguided, or deceitful, or lying about important details. It is up to the advocate to identify and explain why the fact finders may believe or disbelieve certain witnesses.

Consequently, a primary goal of the advocate is to provide facts and reasons why a client and supporting witnesses are being truthful and why the opponent and contrarian witnesses are not. An advocate needs to provide insights into why a party or witness is telling a more likely or a more convincing story, what motivations there are to tell the truth, and who is more believable. These efforts will be highlighted through examples in Chapters 7 and 9 on direct and cross-examination and in Chapter 11 on summation.

G. Displaying Relationship with Client

The nature of the case and the kind of client dictate what relationship should be displayed between an attorney and client. If the fact finder is likely to perceive the client as a credible or a good person, the advocate should display a close relationship with the person by talking with the party and appearing to like the party. In cases in which the fact finder may not identify with or may dislike a client, lawyers disagree as to the relationship they should establish in the presence of the decision maker.

Some lawyers believe that they should distance themselves from this kind of party, fearing that the appearance of a close relationship may hurt the attorney’s standing with the fact finder. Other lawyers, especially in criminal cases, believe that such a client needs visible support from the attorney. They fear the opposite reaction from the decision maker who may not support the individual because it appears that the client’s own counsel wants little to do with the person.

H. Professional Accountability

Inevitably, advocates make mistakes and errors of judgment. The attorney’s reaction to these situations increases or decreases the chances of winning.

When we make mistakes, we may be naturally inclined to think about ourselves first and what the decision maker will think about us and then find a scapegoat for our errors.

When we learn about some surprise information at the beginning of a trial, we may want to blame our client for not telling us about this information rather than ourselves for not properly discovering it.

When we ask an awkward question during jury selection, we may want to criticize the judge for refusing to ask such a question instead of blaming ourselves for not properly asking it.

When the witness makes a misstatement on the stand, we may be inclined to shift the blame to the witness rather than have the decision maker think we did not ask the proper or right question.

These reactions may be natural and normal, but they must be avoided by the professional advocate. There is no place for a lawyer to be concerned about professional or personal embarrassments during a case. The attorney should not unfairly blame the client or undercut the client’s position. Advocates must assume responsibility for mistakes, even if not directly theirs, and accept accountability.

Methods of Effective Presentation

All attorneys have talents and capabilities they can develop and enhance to make them more effective advocates. Methodical planning, thorough preparation, and intense practice can make a stalwart lawyer a competent and skilled advocate. This section describes some general principles of effective communication skills. Subsequent chapters contain additional techniques applicable to specific advocacy skills.

Some advocates have varying communication abilities. Court and hearing rooms need to be accessible for all participants. Title II of the Americans with Disabilities Act and § 504 of the Rehabilitation Act (covering federal funding recipients) explain that reasonable accommodations must be provided for persons covered by that legislation. Although United States district courts are not covered by the ADA, federal courts have a policy to remove barriers to court services by providing appropriate accommodations.

Accordingly, some of the following suggestions will need to be modified to reflect the needs and capabilities of counsel. If an assigned room has inadequate facilities, it may need to be transformed or another room selected. All counsel need to be aware of these issues and provide appropriate support and assistance.

A. A Good Person

Be good. A principle of rhetoric is that an effective orator is a “good person who speaks well.” The goal is to be a steadfast advocate who displays good will and an honest nature and who presents the case well.

B. Confidence

Appear confident and in control of the case. Thorough preparation develops the necessary confidence, and an effective presentation allows the attorney to remain in control. Successful advocates view the forum as “their” courtroom or hearing room, where they present their clients’ cases.

C. Expressive Ideas

Highlight the underlying ideas. In preparing a speech, effective speakers do not necessarily focus on the specific words they are to deliver but on the concepts and images they wish to express and evoke. A speech that is read from a prepared text is rarely interesting. Similarly, a memorized speech where the speaker merely recites words is also unpersuasive. Ideas can be accentuated that need to be explained and highlighted, using emphatic words for impact.

D. Persuasive Expressions

Maintain expressive contacts. It is critical to establish credibility and persuasion through appropriate eye contact and to avoid causing decision makers to doubt the advocate’s sincerity or to lose interest in what is being presented. Attorneys can speak with their heads up and avoid the extensive use of notes that prevent them from maintaining sufficient eye contact. Some lawyers get nervous and lose their concentration while looking a decision maker directly in the eyes. An effective way to look at someone is to focus on the bridge of the person’s nose rather than the pupils of the person’s eyes. The speaker avoids the intensity of eye contact, while the listener perceives that the speaker is looking at the listener.

E. Bearing and Mannerisms

Be and act naturally. Body language is a significant part of the advocate’s communication process. The key is congruence, that is, the body language of counsel should be consistent with the abilities of the lawyer and the message sought to be communicated. Good speakers employ natural gestures to make a presentation more effective, and an attorney should incorporate appropriate gestures into a presentation.

A lawyer whose body language lacks confidence or certainty is unable to be persuasive. An attorney who appears indifferent or uncaring may display an inattentive and insensitive attitude. Advocates are regularly on view in front of the decision maker, and inappropriate body language and gestures can interfere with communication.

F. Appearance

Appear natural. A speaker’s appearance often affects the listener’s perceptions of that person. An attorney who is properly groomed usually appears more professional and credible. The lawyer’s appearance should be consistent with the personality and approach of that lawyer.

Counsel should dress professionally and comfortably in a manner that reflects their style and the customs or rules of decorum established or promulgated in a jurisdiction. Many attorneys dress according to a standard they believe is expected of them by the decision maker. Some attorneys prefer to wear a distinctive piece of clothing during a trial to help the jurors remember and identify the attorney.

The appearance of a lawyer should not become an issue that detracts attention from the case presentation. A client may have a preference or expectation for how the lawyer should appear. Advocates may have to put aside personal tastes and conform their dress to the standards of a community or decision maker so as to safeguard and promote the client’s best interests.

G. Tone and Pace

Use variety. The tone, volume, modulation, and pace of an attorney’s delivery affect the listening capabilities of the decision maker. A dull, monotone presentation is as ineffective as a loud, boisterous approach. A balanced and well-modulated approach is usually most effective. Sometimes silence is the best thing that can be interposed; it can be an effective way to highlight a point, gain attention, or create a transition.

H. Visual Aids

*Enhance words with images. *As described previously, effective presentations can be enhanced with the use of visual aids, demonstrative evidence, and other exhibits. These devices augment the oral skills of advocates and recognize that there is more to advocacy than just the spoken word. Chapter 8 explains these uses in detail.

Ethics

The process of becoming and being an advocate includes an awareness of and adherence to ethical norms and standards. Attorneys must learn, understand, appreciate, and follow the values and rules that shape and direct their judgment and conduct. Attorneys are members of a community consisting of clients, colleagues, opponents, and the public. Each advocate is not only a lawyer but also a person, guided by professional and legal ethics and also by individual principles and societal standards. This section describes ethical guidelines and constraints within the adversary system and professional rules of conduct and behavior.

A. Sources of Decision-Making Power

Attorneys do not have the ultimate power to control the fates of parties, but attorneys can influence the source of this power. It is the ability of the advocate to convince the decision maker to right a wrong that activates this power within the adversary system. Lawyers influence the results of a case by selecting the theories to be advanced, the evidence to be introduced, and the law to be applied.

B. Constraints

Clients and cases commonly involve limited resources. The lack of sufficient funds or time may make it impossible to do everything that could be done for a client. Some cases may not justify significant monetary expenditures. The advocate must work within these restrictions to do the best possible job.

Lawyers have only limited available time. The time that an advocate can devote to a case is restricted by the professional hours available, the fee charged, and the attorney’s life outside the practice of law.

C. Professional Rules of Conduct

The rules of professional responsibility and ethical norms provide advocates with disciplinary regulations and principled guidelines. Many of the rules deal with an attorney’s external, objective conduct. Some deal with the lawyer’s internal, subjective thinking. It is often difficult to apply these rules and guidelines to cases where there are two or more versions of what happened, opponents who may dislike each other, and advocates who are skilled at creating plausible explanations and portraying questionable behavior as legitimate. Attorneys must develop an external and internal code of ethics and constantly monitor their own conduct to determine whether it complies with the standards of the profession and their own ethical values.

Every state has rules that establish these standards and impose restraints on a lawyer’s behavior. The Rules of Professional Conduct have been adopted with various modifications by the states. These rules codify norms that reflect the collective views and values of attorneys. State rules of procedure, case law, and local customs and traditions also regulate the behavior of attorneys. The remainder of this section summarizes ethical rules based on the American Bar Association (ABA) Model Rules of Professional Conduct that specifically apply to advocates.

1. Abide by Client’s Decisions

Model Rule 1.2(a) states:

[A] lawyer shall abide by a client’s decisions concerning the objectives of representation . . . and shall consult with the client as to the means by which they are to be pursued. . . . In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to the plea to be entered, whether to waive jury trial and whether the client will testify.

The United States Supreme Court has approved this rule and the following standard:

The decisions on what, when, whether, and how to conduct cross examination, what jurors to accept or strike, what trial motion should be made, and all the strategic and tactical decisions are the exclusive providence of the lawyer after consultation with the client. Jones v. Barnes, 463 U.S. 745 (1983).

The advocate has an obligation to discuss the objectives of the case and the strategies that are to be pursued with the client. The lawyer must consult with the client in making decisions regarding the goals of the representation and alternative ways these objectives can be achieved. It is often up to the attorney regarding how best to implement these decisions.

2. Competent Representation

The advocate must provide competent representation and act with reasonable promptness and diligence. Competent representation minimally consists of relevant legal knowledge, thorough investigation, adequate time, comprehensive preparation, and effective case presentation. The lawyer must render candid and timely advice to the client and exercise independent, professional judgment. Model Rule 1.1.

3. Confidentiality

What a client tells a lawyer and the advice a lawyer renders to a client are confidential and may not be revealed unless the client consents, or certain situations permit or require disclosure. Model Rule 1.6. The factual story a client tells an attorney is disclosed when the client testifies during a case. The legal theories discussed between the client and the attorney often form the basis for the theory of the case which is presented at the trial or hearing. Advocates must take care not to reveal confidences publicly or through easily accessible social media communications.

4. Conflict of Interest

A lawyer may not represent a client if that representation will compromise or be compromised by the lawyer’s responsibilities to another client or to a third person. Similarly, if the lawyer’s own interests conflict, the case should be referred elsewhere. A client, after being fully informed by the attorney, may willingly waive the conflict and agree to be represented. Model Rule 1.7.

5. Good Faith

Model Rule 3.1 states:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law. A lawyer for a defendant in a criminal proceeding or the respondent in a proceeding that could result in incarceration may nevertheless so defend the proceeding as to require that every element of the case be established.

Federal Rule of Civil Procedure 11, similar state rules, and related arbitration and administrative provisions contain a similar standard. These rules prohibit an attorney from presenting any claim or defense unless to the best of that attorney’s knowledge, information, and belief formed after reasonable investigation and research, it is well grounded in fact and is warranted by existing law or a good faith argument for the development of new law.

These rules establish an objective standard of conduct as distinguished from a subjective belief. An attorney who has a personal belief that a claim or defense is valid does not meet the standard. The attorney must have an objective basis in law and fact to support the claim or defense. It is insufficient for an attorney to merely have a “pure heart” in asserting a position. These rules require that an attorney have a “good legal head” and sufficient factual and legal support.

6. Expediting the Case

A lawyer must make reasonable efforts, consistent with the legitimate interests of a client, to expedite a trial or hearing and not delay proceedings for improper reasons. Model Rule 3.2. It is inappropriate for an attorney to engage in time-consuming discovery and motion practice if these strategies are not legitimately employed to promote a client’s case. It is unethical for counsel to employ delaying tactics that are used for the primary purpose of causing the opposing party to expend unnecessary resources or for unreasonably extending the time before the case is brought to a final resolution.

7. Truthfulness

Several ethical rules require advocates, clients, and witnesses to be truthful. The duty of loyalty an attorney owes a client does not countenance perjury. Likewise, a layer cannot call a non-client witness who will testify falsely. There is no constitutional right to testify deceitfully. Nix v. Whiteside, 475 U.S. 157 (1966).

Model Rule 3.3(a)(3) states:

A lawyer shall not knowingly . . . offer evidence that the lawyer knows to be false. If a lawyer . . . has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

Model Rule 3.4(b) specifically provides:

“A lawyer shall not falsify evidence, counsel or assist a witness to testify falsely. . . .”

Model Rule 3.4(e) further states:

Lawyers shall not . . . allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence.

And Model Rule 3.4(f) concludes:

A lawyer shall not unlawfully obstruct another person’s access to evidence or unlawfully alter, destroy or conceal a document or other materials having potential evidentiary value.

The obviously despicable nature of much of this conduct should not require a rule to prevent or remedy it.

8. Professional Assertions

There needs to be a factual and legal basis for professional questions, statements, and arguments asserted by advocates. They are to avoid personal proclamations.

The Model 3.4(a) “voucher rule” provides:

“A lawyer shall not. . .assert personal knowledge of facts . . .or state a personal opinion as to the justice of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.”

Advocates are restricted to stating and relying on professional opinions and positions and cannot “vouch” for something or someone based on their own personal views or beliefs.

9. Disclosing Controlling Authority

Model Rule 3.3(a)(2) states:

A lawyer shall not knowingly fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.

A lawyer must disclose all controlling authority—supportive or adverse—but is not obligated to disclose legal authority if it is not controlling. Precedent from another jurisdiction that does not bind the decision maker need not be disclosed. The attorney may rely upon the law from related jurisdictions and argue that this law ought to be adopted and apply, requiring the opposing attorney to argue against the application of this analogous law even though it is not controlling.

10. Influence

A lawyer may not seek to influence a judge, arbitrator, ALJ, or juror by means prohibited by law and may not communicate ex parte with such individuals unless permitted by law. An advocate should communicate with the decision maker about a matter in a case only if the opposing lawyer is present or involved. Model Rule 3.5. Communications that may improperly influence participants including social networks and public media should be avoided or tempered.

11. Complying with Rulings

Model Rule 3.4(c) states:

A lawyer shall not . . . knowingly disobey an obligation under the rules of the tribunal except for an open refusal based on an assertion that no valid obligation exists.

A lawyer must comply with the rulings and orders of the decision maker except in extraordinarily unusual situations or in which an attorney would decide to face a contempt citation and be penalized for disobeying.

D. Attorney Misconduct

A review of attorney disciplinary cases reveals that common reasons for lawyer malfeasance result from greed, alcohol or drug abuse, laziness, legal incompetence, and folly. Many lawyers who operate dysfunctionally will do so until they are caught, and do not stop because of a code of external or internal ethics. A client, colleague, partner, friend, or family member may be the person or persons who get them help.

A review of complaints filed with attorney licensing boards by clients against lawyers reveals that common complaints involve the lack of adequate or ongoing communications, inappropriate fees, unauthorized conduct, and breaches of trust. Lawyers can substantially reduce potential client problems by maintaining regular and sufficient communications, fully explaining the fees charged, obtaining the clear consent of the client to act, and avoiding inappropriate social media communications.

E. Client Demands and Satisfaction

Clients expect their lawyers to be knowledgeable and wise and also responsive and available. Smart phones, texts, emails, and other social communication methods make it easy to both send and expect prompt messages. Some clients will anticipate that their attorneys will be available when they want and need an answer or an update of what is, or what is not, happening in their case. Other clients may expect service at most anytime during the week and on weekends. Lawyers need to discuss these expectations and prospects with their clients to reach a mutual understanding of reasonable legal services.

Periodic and timely efforts by counsel to update their clients are practical and realistic expectancies. A common concern clients have is the failure of their lawyers to regularly communicate. Sometimes clients will need a prompt answer; other times they need to know their lawyers are working on their case; and other times they need an empathetic response.

Advocates may also feel pressure from their clients to win, sometimes at all costs, and sometimes by using inappropriate methods. Lawyers obviously need to avoid submitting to this undue pressure and explain why they cannot act accordingly, or withdraw from the representation. The demands of parties and the lawyer’s need to satisfy client interests must be properly balanced with doing what is ethical and proper.

F. Consequences of Misbehavior

The most egregious misbehavior by an advocate will be handled by the professional decision maker through an appropriate sanction, contempt citation, or a motion and order for a new trial or hearing, and by the appellate court through a reversal. Lesser mistakes and errors will usually prompt a reprimand by the tribunal or a professional responsibility board or licensing office. Other sanctions may be imposed by state or local ethics committees for misconduct, but this may not occur in a timely or sufficient manner to deter such misbehavior.

The lack of prompt and stern external sanctions should not be taken as a license to engage in questionable conduct that may win the case. The primary protection against abuses by advocates lies within each lawyer. The true sanctions are personal and professional, such as the loss of self-esteem, respect, credibility, and ultimately, cases and clients. It is critical for the attorney to develop and maintain a reputation as an honest, trustworthy, and ethical professional.

Future Advocacy

Our current advocacy system of justice will continue to evolve. So, what is ahead? What changes may occur in the near and distant future regarding the way disputes will be forecasted and resolved? What technological developments, such as GenAI and LLMs, will transform dispute resolution? How will you—the next generation of advocates—predict and resolve disputes?

Clients will demand efficiency and affordability regarding the resolution of their disputes. They may expect lawyers to be better at helping them prevent or reduce the chances that disputes will arise. And they will continue to expect that attorneys will solve their problems fairly and effectively.

This section summarizes what commentators and advocacy experts predict for the future – positive and realistic protopia destinations. A variety of contemporary advances will impact developments in modern advocacy. Legal predictive methods, artificial intelligence, data-driven sources, robotic developments, law analytics, quantitative analyses, and related approaches will likely affect future advocacy processes and outcomes.^[2]^

A. Advocacy Forecasting

Parties will expect more accuracy in predicting how disputes will be anticipated and resolved. Law practice involves insightful legal predictions. Forecasts and projections in business planning have resulted in successful modern business systems. These predictive methods are being used for legal events to construct and produce transaction deals and to foresee and resolve potential disputes. The nature of legal work will evolve as clients pay for and demand preventative measures and as lawyers become more adept at gathering and interpreting data.

Imagine how much more successful advocates could be if they can obtain reliable data and apply innovative ideas regarding common concerns and queries. Do we have a winnable case? What chance do we have of losing? What are our odds before this judge — for this claim? Should we use a different strategy? Massive databases already have access to hundreds of millions of cases and can provide smart lawyers with a range of useful information to these and other enquiries.

Predictive analytics has produced compelling results. In a London UK contest, one-hundred experienced lawyers went head to head—so to speak—with an artificial intelligence device to predict the outcome of hundreds of financial disputes. The attorneys correctly predicted 66% of case results while the robotic machine accurately predicted 87%, beating the legal professionals at their own game. Whereas lawyers provide anecdotes (termed “anecdata”), databases can provide true, more-granular data about courts, judges, claims, and defenses—illuminating the otherwise inaccessible or seemingly unknowable.

B. Legal Analytics

Legal analytics software can enhance the effectiveness of advocates. These systematic methods identify and produce data to discover new insights previously inaccessible. They also significantly increase the efficiency of tasks that traditionally require substantial human effort and time. The evolving generation of analytics technology allows attorneys to treat many legal tasks as analogous scientific data problems.

Some lawyering skills involving basic and repetitive tasks can be replaced by automation, artificial intelligence software, and robotics which eliminate labor intensive work. Software, including LLMs, can mimic lawyering skills. For example, software can extract discoverable information and assemble it for analysis—either by humans or by machines. For another example, software may forecast when a potential dispute may arise, resulting in litigation or arbitration.

Attorney attention and time can more readily focus on analyzing identifiable information, anticipating possible disputes, and seeking responsive resolutions. And, the growing use of software to predict various events may suggest to clients that similar methods may be employed to reasonably predict potential legal disputes and the timing and terms of resolutions. Similarly, just as social media research has successfully identified and targeted people who are likely to buy products or vote for certain candidates, similar software focuses on decision makers.

As advocates know more about judges, arbitrators, ALJs, or jurors, they can more accurately assess the likelihood of decisions favoring one party over another. These inquiries must be reasonable and appropriate, without interfering with independent legal results. Litigation-analytics software has existed for years, so the genie is already far out of the bottle.

These approaches raise transparency and privacy issues that may postpone or restrict some developments. How transparent do we want our justice system to be? How scrutinized do we want decision makers to be? Do we want to embark on invasive inquiries? Much of what occurs presently protects the privacy of individuals through protective orders and settlement deals. Many confidential decisions are made in civil and criminal cases. How much openness will the public demand? How much intrusiveness will decision makers tolerate? Is analyzing public court information even “intrusive”? How far will the community be willing to go in disrupting present systems and outcomes?

C. Data Availability

The availability of more accessible and affordable data will provide advocates and clients with valuable sources of information. As described previously, data-driven methods have achieved successes in other professions, including the financial, commercial, and sporting worlds. The legal world may focus on developing data-driven information regarding dispute incidents, case types, tribunal results, and advocacy outcomes to better manage client expectations and case strategies. These efforts can produce useful case analytics, more informed decisions, comprehensive discovery, insights on experts, and access to model documents.

Quantitative processing, in addition to traditional qualitative assessments, can provide advocates with actionable knowledge based on reliable data. This information can provide law firms and in-house counsel with innovative and successful approaches to case forecasting, resource management, benchmarking, procedural improvements, accurate billing, and financial operations. Better access to law-related information can make legal quantitative predictions more available and common.

Court data is notoriously hard to access, but there is some reason for optimism. For example, Harvard has scanned and open-sourced 6.5 million judicial decisions for its Caselaw Access Project, representing 360 years of U.S. legal history. So that foundation of United States law is available for any software to utilize, especially with LLMs, for free.

In contrast, downloading the documents in the U.S. Federal Courts’ case management software, PACER, would cost about $2 billion. The law that binds us all appears behind a colossal judicial paywall. Given that massive cost, determining analytics (e.g., odds in this court, for this claim, for this judge) may be prohibitively expensive. Should this communal law that governs us be truly “public”—as in “free”? How much innovation and transparency could that spur?

Technological resources have changed the way investigations and fact finding are presently conducted. Internet and GenAI searches can provide substantial information that was not readily obtainable some time ago. Further tech developments may make it possible to discover even more accessible information to support or defend cases. Again, privacy and confidentiality issues might balance the extent of these developments.

Lawyers, and consequently law students, must become more “data fluent.” That is, our profession must become familiar with identifying data, locating it, gathering it, and analyzing it. It is an important resource and a legal skill that has historically been untapped and undeveloped. It has become vital and essential, and accordingly we have to become more knowledgeable about how it impacts the law and how it shapes the future of advocacy practice. And this education can begin in college and continue through law school.

D. Quantitative Decision Making

The expectations by decision makers for compelling evidence available via cameras, recordings, digital resources, scientific data, AI tools, and objective sources will continue to increase. Jurors especially may expect empirical and unbiased evidentiary proof to be presented based on what they observe is available through the media and social networks. They may wonder why advocates are not presenting convincing evidence that they anticipate would be available if only the lawyers knew where to uncover these facts.

Social media communications, texts, emails, tweets, messages, cameras, and videos can determine what happened and whether a party said or did something helpful or adverse to a case. Enhanced and more easily available sources may expand what can be discovered about events, crimes, and accidents. The next major communication advancement may increase or decrease the value of anticipated and expected evidence.

Scientific or quasi-scientific research continues to uncover deficiencies with eyewitness testimonies, as well as ways to improve reliability. There are more opportunities to verify stories people tell today than years ago. Advances in these areas may significantly affect the use and impact of the direct and cross-examination of witnesses and their credibility.

The way we learn and communicate has and will continue to change. Multi-media presentations and video enactments replace spoken word and oral testimonies. Professionals present simple and complex issues in concise and entertaining presentations. Educators rely on technology, computers, and monitors to help students learn. Many individuals are unwilling to sit and listen to lengthy presentations. They expect trials and hearings to rely on and use modern and efficient communication methods. These expectations may especially impact opening statements, the presentation of evidence, and summations.

E. LLMs and Legal Artificial Intelligence

The Preface and Section 1.1[C][ have introduced artificial intelligence platforms and our interactive book technology. As legal LLMs and GenAI—with access to all of the law—exceed the capabilities of even the most-expert lawyers, our profession will need to assess how we can best add value to our client work. Law based LLMs will transform traditional delivery of legal services.

AI science has a truism: “Not everything that can be counted counts; not everything that counts can be counted.” In the law, many things count (e.g., effective arguments, claims, defenses, applicable rules). In software, many of those things can be counted; others cannot. Did the judge and your opposing counsel get into a high-school ruckus or college brouhaha? That counts, but in legal-research databases, that fact is unlikely to be counted. Humans will often have an edge for “things that cannot be counted.”

Augmented reality and virtual reality (collectively, “XR”) have some promise, potentially enabling virtual legal experiences. Simulated experiences might involve avatars as witnesses and advocates. Fact finders might look at an accident or crime screen through XR headsets. Future developments could provide professional advocacy training opportunities and real life experiences that impact the way events occur and how people exchange information and outcomes.

Evidence access can dramatically help advocates do their work. Searching massive document collections can substantially enhance the gathering of relevant facts. New information can be discovered that presently is not readily discernable by humans, with factual patterns beyond the reach of manual analysis readily revealed by computers.

A developing field called “affective computing” allows machines to discern human emotions—through video, audio, and words spoken. This field holds significant potential in the legal domain, particularly in trial advocacy. By better detecting and analyzing human emotions, legal professionals (and perhaps decision makers) can gain insights into witness credibility, juror reactions, and courtroom outcomes. For instance, emotion recognition software can be used to evaluate witness sincerity, or the technology might assess the impact of arguments on a jury or a judge.

Affective computing could also aid in the selection of jurors by analyzing their nonverbal cues for biases or predispositions. Lawyers and courts should understand this technology’s capabilities and ethical implications, ensuring its responsible integration into trial preparation and courtroom strategy. It may well be that human assessment, however imperfect, may be the best way to discern whether witnesses are telling the truth and parties are deserving of victory.

These AI developments will aid and augment the work of lawyers but not replace the role and involvement of advocates. Counsel will continue to advise clients, select strategies and tactics, and implement these decisions. Attorneys, as will be emphasized throughout this text, remain ultimately accountable and responsible for their efforts and endeavors.

F. CHATBOTS

A chatbot is a software interface that simulates intelligent conversations. In the past, chatbots have been effective. With today’s LLMs, chatbots are even better. The Turing Test was envisioned in 1950, where Alan Turing thought that machines will have achieved human-like intelligence when a machine-created conversation was indiscernible from a human-created conversation. With the advent of LLMs, the Turing Test is now history. Machines can now converse with us in a way that’s indistinguishable from humans.

In the legal domain, chatbots can permit natural language interactions via text, voice, or video with a computer learned in the law to gather information, conduct legal research, direct client interviews, generate documents, review legal matters, and engage in other law tasks. Chatbot deployments are common and will be increasingly used. There are and will be successful commercial, proprietary, and governmental efforts to adopt and adapt chatbots to change and improve the practice of law.

Chatbot application platforms can and will provide legal transaction and dispute resolution legal services. But there will always be the need for a human interface to ensure that there are proper results and just outcomes. That human would be you.

G. Lifestyles and Relationships

Changing professional lifestyles may affect how cases are tried. Trying cases can be a very exhausting and time-consuming experience, and professionals and participants may perceive that it ought to be replaced by a system of justice that is less onerous and arduous. A simpler and less time-intensive process may produce more affordable and accessible justice.

Global transactions and international relationships will require responsive and effective ways to prevent and resolve disputes. Distances and time differences may require the development of more available processes. Continuing differences among countries and cultures will affect how disputing parties will accept or expect their disagreements to be resolved fairly and reasonably.

H. Developments and Reforms

The development of online and video communication methods may well modify advocacy proceedings including case presentations and evidence submissions. Advances in conducting meetings with web based applications and devices will continue to expand online interactions, video conferences, and mobile collaborations. Events and circumstances that limit distant and local travel and engagements require businesses and individuals to communicate and exchange information via remote communication services. These experiences may affect the way parties and attorneys adjust their work and how dispute resolution tribunals alter their procedures.

Ongoing economic developments, community health issues, and societal transformations may contribute to further changes and reforms. It may be more economical and efficient to conduct some procedures from afar. It may be more prudent and sensible to conduct certain proceedings by way of video, audio, email, text, and innovative communications. The traditional ways advocacy has been conducted may evolve into various procedures, some of which would require legal and rule changes. Presently, many tribunals require that trials and evidentiary hearings be conducted in person while motion and other proceedings may be conducted remotely.

Further examples include: More motions could be resolved through written electronic submissions. Civil jury trials may be regulated or delayed, as has happened in the past, due to societal disruptions or necessary reforms. Witnesses can present their stories through affidavits and declarations, more akin to continental legal proceedings. Document exhibits can be preserved on secure websites with password access by the participants. Advocates could present their openings and closings by means of printed submissions or interactive video. And decision makers and fact finders may use similar methods to manage witness examinations, obtain information, and decide cases. Temporary or systemic changes will need to conform to our justice standards of providing just, speedy, and inexpensive determinations of cases. See Fed. R. Civ. P. 1.

The goals and roles of an advocate are the same in all types of proceedings: to take effective actions to successfully advance the cause of the client and to achieve a favorable outcome. The case strategies and tactics available to lawyers are similar whether advocacy occurs in a trial or hearing room or in a video presentation or online. The applied techniques that may differ are discussed in the relevant sections throughout this book.

I. Predictive Prospects

Historically, analogical reasoning was and is the basis of lawyer decision making. Casebook learning, the Socratic method, logical assessments, and inductive and deductive analyses traditionally formed the basis of thinking like a lawyer and law school curricula. Presently, programmed learning, problem analysis, seminar discussions, case studies, internship observations, externship programs, practicum experiences, and clinical training supplement basic law school education. Novel virtual reality technology involving simulated happenings and proceedings may augment professional legal training. The advancement of GenAI and LLMs will further expand these prospects and encounters.

Modern methods of assessment and analyses may provide renewed avenues of legal thinking and decision making. Advocates will become wiser and be able to exercise more informed judgments with new sources of objective data and contemporary analytics and AI methods. The future developments described in this Chapter reflect these advances.

There are limits to what can and may happen. The past cannot always predict or control the future. Law is a complex and adaptive system.

As commentators have suggested, quantitative legal prediction is more akin to weather forecasting rather than tide predictions. It can be instrumentally helpful to lawyers who must ultimately make the best decisions in consultation with their clients. A client might agree that a slim chance is worth taking, and clients and their lawyers should know those chances.

These protopian notions may not impact future dispute resolution, and they may or may not improve our current legal system. But changes are afoot.^[3]^ And it’s challenging—and necessary—to predict and ascertain potential changes. What are your predictions?

———

Advocacy Supplement

Examples of the skills described in this book appear in the Supplement to Trial Advocacy Before Judges, Jurors, and Arbitrators. This Supplement contains transcripts with commentary for three cases:

A jury trial, Rita Riley v. Garfield House Apartments

An arbitration, Bingham v. Ecotronics

An administrative law proceeding, Mr. Scratch v. Jabez Stone

These cases demonstrate the strategies, tactics, and techniques that are explained in this text. The transcripts reflect how a case is tried respectively before a jury, an arbitrator, and an administrative law judge and augment the individualized examples appearing throughout this book. See Preface.

Interactive Advocacy

[http://trialadvocacy.net/](http://trialadvocacy.net/" \t “_blank)

A special feature of this book is your access to Generative AI and Large Language Models to enhance and improve your advocacy skills. You will be able to employ AI functions to assist you in preparing and presenting a case. Our specially designed feature will allow you to actively interact with GenAI and LLMs augmented by this book’s entire text, allowing you to further understand and successfully implement all aspects of advocacy. You’ll be able to work with our customized LLMs to develop and expand your lawyering skills through technology.

This specially designed LLM-backed tool can supplement your individual case preparation and planned presentations. You can obtain assistance by prompting the system with queries and directions, and then by reviewing, editing, rejecting, accepting, and selecting those responses that seem the best case approach. Ultimately, the final choices and decisions will be yours to make and implement.

Your professor may provide instructions and guidance regarding what can or cannot be accomplished with this AI augmented book feature.

To access a Generative AI tool grounded in this chapter’s expertise,

• visit* <[trialadvocacy.net](http://trialadvocacy.net” \t “_blank)> * which can also be accessed with this*

QR code: !

1. This principle, often referred to as Ockham’s Razor, resonated with Aristotle, Aquinas, and other philosophers. ↑
2. See, e.g., Quantitative Legal Prediction—Or—How I Learned to Stop Worrying and Start Preparing for the Data-Driven Future of the Legal Services Industry, 62 Emory L.J. 909; Theodore W. Ruger et al., Essay, The Supreme Court Forecasting Project: Legal and Political Science Approaches to Predicting Supreme Court Decisionmaking, 104 Colum. L. Rev. 1150. ↑
3. Research and read the latest from Richard Susskind, Shara Evans, and Jordan Furlong and other legal commentators. ↑