Robbins: The power of persuasion
You can be as right as rain, but in a courtroom, if you can’t convince the judge or jury of the rectitude of your position, you may as well be wrong.
The first year of law school is commonly referred to as 1L. I would wager that at some point during that first year, most 1Ls hear a riff that goes something like this: “If the law is with you, pound on the law; if the facts are with you, pound on the facts and; if neither the facts nor law are with you, pound on the table!” However, whether it is law, facts, or blustery insistence, each requires the trier of fact to buy what you are selling. Each requires the judge or jury to be sufficiently persuaded.
Merriam Webster defines the word “persuade” as “to move by argument, entreaty, or expostulation to a belief, position, or course of action.” The Cambridge Dictionary defines it a bit differently: “to make someone do or believe something by giving them a good reason to do it or by talking to that person and making them believe it.” Both definitions grab at the essence of it. Persuade means, by force of argument, to convince.
Just like there is more to life than Skittles and beer, there is, of course, more to law than lawyers in their suits and shiny shoes in litigation. Most times, by the time you get to court, it is at the end of a long and often tortuous road along which there are rest stops, signposts, detours, and diversions, each one of which offers an opportunity to calculate, calibrate, rethink, rearm, and persuade. Lawyers talk to one another and their respective clients, and the opportunities are rife to guide the craft of argument in your preferred direction. If I take a little off here, burnish a bit there, yield this but not that, can we come to a reasonable resolution before the court imposes one upon us? If the wind is in your face, tack left or right; if at your back, unfurl your sails!
Let’s go back to Webster’s for a moment and vivisect the definition. “To move by argument, entreaty, or expostulation to a belief, position, or course of action.” First, “move” to change one’s position, to go from here to there. “Argue,” to give reasons for or against something; to contend or disagree in words; to give evidence of; to consider the pros and cons of. “Entreat,” to plead with to persuade; ask urgently; to make an earnest request. And, last, “expostulate,” to reason earnestly with a person for purposes of dissuasion or remonstrance.
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All of these are true and honed arrows in the quiver of persuasion.
Back to 1L.
In law, then, how does one persuade?
First, one must know the facts. Without their full apprehension and the consequences of them, one is simply flailing. Second, know the law. If you are pushing for a precept that the law does not support, you may as well be a Sisyphus toiling to push the boulder of persuasion up an endless hill. Third, stay calm and carry on. Opposing counsel will surely snipe at you; they, too, have a job to do. Fourth, be polite and deferential. A screaming match does little more than strain your vocal cords and undermine you. Fifth, even when the gods of the law conspire against you, be respectful. There is nothing to be gained by histrionics, blame, or slander. If a ruling has not gone your way, after calm reflection, another course is often open and can be seamlessly charted.
After decades in this profession and more times before the court than I can count, I’ve concluded that “pounding on the table” is allegorical and mostly self-defeating. Cool, subtle, and rational most times win the day.
One must remember, too, that just because the other side is pushing back, they are not your enemy. Most times, anyway, all of us are just doing our job, which demands zealous advocacy in favor of our respective clients. Tempered, of course, with reason, preparedness, and sharpened with the arrows of persuasion.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” “Why I Walk so Slow” and “He Said They Came From Mars (stories from the edge of the legal universe)” and “The Theory of Dancing Mice” are currently available at fine booksellers.
