Modern Advocacy

Two galloping horses. A single rider, with one foot on each. The three are approaching a fork in the road.

Call me melodramatic, but this is the image that bubbled up in my mind as I examined the material I received from the Advocates Society this week.

The Advocates Journal contained an article by Sheila Block entitled “Advocacy Lessons from the Past”. It is an engaging piece sprinkled with references to the succinct styles of Maloney, Dubin and Robinette. The author reminds us of advice from Orwell on writing, relishes ‘beautiful, simple language’, and questions whether today lawyers focus enough on the fundamentals of persuasion.

In the same envelope was a flyer announcing a special litigation presentation – “Mediation Advocacy”. The program description sensibly points out that litigators don’t leave their courtroom skills to chance, and goes on:

“The majority of cases are won or lost before going to trial and you need to be just as vigilant about your advocacy skills outside the courtroom.”

No doubt there is some Venn diagram-type overlap between the skills required for court and mediation advocacy: ability to absorb the factual record, knowledge of the underlying legal rights.

But there the similarity ends.

Court advocacy focuses on persuading a disinterested, impartial judge. The target of mediation advocacy is the opposing party and their lawyer. In court there are rules of evidence and admissibility. In a mediation the goal posts have been dismantled and taken away. Human psychology is the key in mediation; in court we hope for decision-making based on a cool appraisal of the facts and the law.

Court advocacy is to mediation advocacy, as tennis is to cage fighting. Without an umpire.

Developing a style for one, will not help you with the other.

Should litigation lawyers be expected to do both?

I think we should choose horses.