To make a convincing case, you must believe in your client’s cause. You must believe that your argument is sound and of some moment. You should believe in the position you advocate.
It’s tawdry, unethical, and unprofessional for an attorney to advocate a position he or she doesn’t believe in. Judges have a right to expect that counsel on both sides believe in the positions they advocate, even if either or both may turn out to be ill-founded in fact or law.
Belief in the client’s cause is not automatic on getting instructions. And it’s not necessary at that stage. The crucial time to believe in the case is when you must present it. When initially instructed, you might not know enough about the law or the facts to warrant faith in the client’s cause. You might even harbor misgivings about your client’s legal position or factual narrative or about the client.
Whether or not you have doubts about the case, seek further instructions and clarification; learn more facts and circumstances; research into the client as well as the client’s and other key players’ pertinent activities, backgrounds, businesses, operations, and transactions. Then research the law. When you do have doubts, the research and preparation may dispel them. If your doubts remain, frankly warn the client about the risks of shellacking, or suggest negotiated settlement.
Each time you’re consulted about a dispute, consciously consider settlement. Sit down with your colleagues and discuss the propriety or prudence of settling the dispute. Make this a phase of your preparation. Don’t be a warmonger; don’t be trigger happy; but don’t be a pacifist either or even a conscientious objector. Pick your battles. If you decide not to settle, then build up your weapons of war.
If, on the other hand, you proceed amidst debilitating doubts, you will telegraph your doubts and fears onto the bench, and the bench can recoil in mistrust, not only of the case but also of its proponent.
Commit yourself to your client and devote your time and thoughts to the client’s work. “Advocates must try to be totally committed,” says The Devil’s Advocate. Iain Morley, The Devil’s Advocate, 3rd ed. (Sweet & Maxwell, 2015), 39.
Think of your clients and share their angst, pain, or predicament. Moderate the outmoded idea that you shouldn’t be emotionally involved in a client’s case. Control, but don’t suppress, your emotions. Be professional but not clinical—don’t be aloof or detached. You’re a human being, not a machine. Turn your client’s case into a cause. Litigate with missionary zeal.
“Enter action with boldness.” Robert Greene, 48 Laws of Power, 227.
Entering litigation with boldness and zeal, and preparing your persuasive writing accordingly, will lend communicative fervor to your written work and make you more believable. You’ll sound more convincing because you are convinced. That’s the way to go about this honorable profession of ours.
But balance your devotion to your client with your overarching duty to the court and the legal system. In your own professional and career interests as an advocate, never try to shovel bad law or nefarious policy down the court’s throat just to please a client or win a case. And don’t inveigle lies into the proceedings! Never aim to win at all costs.
To foster that lifelong ethos that can engender an illustrious biography, earn a sparkling reputation, and leave a worthy legacy, you should believe in every cause you advocate. To galvanize yourself for battle and secure the necessary belief in your client’s cause, formulate a thesis for every argument you plan to present to a tribunal. Test your thesis for rhetorical fiber and potency by writing “on some notepaper, ‘I contend that –’” and completing the sentence. John Trimble, Writing with Style, 27.
Force yourself to articulate a good reason why you’re going into battle. What am I contending? What’s this about? Why am I doing this? Why am I advocating or defending this position? Give yourself a larger-than-life purpose springing from jurisprudence or justice. That’s your thesis. Construct the story in the fact section of your brief “around a thesis, a point of view that is advanced by the argument.” Gerry Spence, How to Argue and Win Every Time: At Home, At Work, In Court, Everywhere, Everyday (St Martin’s Griffin, 1995), 119 (italics in original).
Formulating your thesis is similar, though by no means identical, to articulating a claim for a piece of academic legal writing. In legal scholarship, a claim must be sound, among other things. Your thesis in written advocacy should be equally sound. In both genres of legal writing, forcing your claim into one not-too-long sentence capsulizes your thesis, helping to “focus your discussion” and “communicate your core point.” Eugene Volokh, Academic Legal Writing, 5th ed. (Foundation Press, 2016), 11.
What’s a thesis but a topic with an attitude favorable to the client’s case?
Chinua Asuzu, Brief-Writing Master Plan (Partridge, 2022), 2–8.
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