Many people refer to advocacy (usually trial advocacy) as an art that can only be learned through experience. It would by be a stretch to call advocacy a science, but its not just an art either. Advocacy skills are very learnable, and there are many principles that can assist attorneys in improving them. Many of these principles can be found in my Rules of Advocacy. It's important to note not all attorneys agree with these rules, and it is often a matter of personal preference.
THE PROBLEM WITH ADVOCACY AS AN ART
In 1903 Frances Wellman Published the Art of Cross-Examination. This book became know as the hallmark of cross-examination. Even today it's often recommended to help people learn cross-examination. The problem with this book is it doesn’t teach people how to conduct an effective cross-examination. The book mostly discusses cross-examinations that went well. The problem with this is two fold: 1) If the cross-examination went well, then we don’t know if the cross-examiner got lucky the witness gave him a gift; or 2) If the cross-examiner implemented some kind of method to achieve good results it doesn't discuss these methods. It appears the book views cross-examination as a pure art, and effective cross-examination skills cannot be described. Most good trial lawyers including myself do not subscribe to this philosophy.
THE IMPORTANTS OF TESTING THEORIES OF ADVOCACY
It use to be common knowledge that attorneys win their case in closing arguments, and that you should only ask enough questions on cross-examination that you can argue the final point in closing. It originally made sense to win your case in closing arguments because you have the most latitude to argue your case, and there isn't a witness to rebut your arguments. A major problem with this theory is studies have shown 80%-90% of jurors make up their mind after opening statements. These studies came out long after it had been widely accepted that you win your case in closing arguments. But without testing the theory is was hard to determine how effective it was.
Many attorneys talk about trial tactics. While some of these tactics are effective in my opinion many of them are not helpful. One of the reasons I wrote down these Rules of Advocacy was to determine their effectiveness by discussing why they help or hurt the case.
DETERMINING THE EFFECTIVENESS OF YOUR TACTICS
It is important to determine how effective any trial tactic you utilize is, but this can be very difficult. Some tactics can be tested empirically; sometimes you have to use your experience, and sometimes times you have to take a rule on your own belief that it's effective. If nothing else any rule you are utilizing can be roundtable with other attorneys to determine if there is a consensus on it.
I often evaluate my trial tactics against the backdrop of my rules of advocacy. I look at the general, I look at the reason for the rule (there's no point of keeping a rule if the reasoning behind it doesn't apply), I determine if there is a reason to break the rule (either the reason for the rule doesn't apply, or it is outweighed by other considerations), and then I look at the outcome of my decision.
FINAL THOUGHTS
Advocacy is not a science, but there are rules attorneys can use to become better advocates. These rules are not written in stone, and are more guidelines that can be broken when necessary. It is important to assess the effectiveness of the rules, and when it is beneficial to depart from the rules. The effectiveness of many of these rules will be based on an attorney's preferences and personality. To use a basketball analogy Kareem had a great hook-shot, but the hook-shot wasn't effective for most players.
