By Dr. Ken Broda Bahm:
Looking at the question, “What does a federal judge expect from an Assistant United States Attorney (AUSA)?” U.S. District Court Judge Michael H. Simon of the District of Oregon, in a recent issue of the DOJ Journal of Federal Law and Practice (Simon, 2020), gives his answer in an acronym with ten parts: (1) know your client; (2) know your audience; (3) know the standards to which you will be held; (4) know how to advocate; (5) know the law; (6) know at least a little about every other discipline; (7) know how to be a professional; (8) know yourself; (9) know what’s right, and do it; and (10) know “the other.”
The answer, which I think applies to advocates generally and not just AUSAs, boils down to his suggested mnemonic, “Casa le Pyro,” which is “house [of] the fire,” or loosely “house on fire.” The fact that the phrase is an amalgam of Spanish or Italian (Casa), French (Le), and Latin or Ancient Greek (Pyro), just speaks to its universality. Judge Simon writes, “Just think of yourself as the heroic firefighter rushing into a burning house (a “Casa le Pyro”) to extinguish the flames of injustice and protect everyone inside.” In this post, I wanted to not just share Judge Simon’s list, but also add my own perspective to each from a communication professional’s perspective. Here are some thoughts on each of the ten.
1. Know Your Client
Judge Simon stresses the importance of understanding American history, since for an AUSA, the client is the United States (not, he stresses, any particular leader or administration). I would add that even for advocates representing a private party, it is essential to understand your clients — not just their legal concerns, but their psychology as well, including their goals, worries, and fears. For plaintiffs, that can mean understanding the degree and effects of their loss. For defendants, that can mean appreciating the force of accusation and the distraction of unwanted litigation. For both, understanding what for them counts as a “win,” and why, is a necessary for testimony preparation and for strategy generally.
2. Know Your Audience
The audience in Judge Simon’s article is conceived broadly as judges, jurors, opposing counsel, and the public generally: An advocate in court will appropriately focus on the decision-maker, but their advocacy can carry a broader impact. The judge suggests listening carefully and reading all you can on your audience. I would add that when that audience is a jury or the public, then it is beneficial to conduct jury research, like a focus group or a mock trial. Even when that isn’t possible, it is still important for the advocate to think about that. I believe it helps for advocates to think of themselves as students of public opinion. Learn what you can on what is on the public mind, and how those attitudes might impact your case.
3. Know the Standards to Which You Will Be Held
Because his audience is U.S. attorneys, Judge Simon’s focus on this point is on the high degree of integrity and candor expected of someone representing the United States. That point applies, as well, to all legal advocates, who should see themselves not as just fighters in the arena, but officers of the court. One thing I would emphasize is that the standards that apply to all attorneys are not just legal standards, but psychological standards. For example, you may not have a legal burden of proof on a particular issue, but you also need to think about what expectations a jury or judge might apply, just based on common sense. Golden Rule notwithstanding, jurors like to consider how they would react in similar circumstances. So it boils down to the broad question, “What would they expect of someone in my position?”
4. Know How to Advocate
This section gets significant attention in Judge Simon’s article. He emphasizes the foundation — ethos, pathos and logos — as well as the need for economical and effective written persuasion, along with high quality oral argument and trial advocacy. In particular, he stresses the need for a “Silver Bullet” in the form of a self-contained appeal in the first moments of your presentation, noting that this is important not just for juries, but perhaps especially for judges. He also mentions the importance of mock trials. “Back in the days when an experienced trial lawyer might have completed several hundred jury trials or more by mid-career, that lawyer might have developed a moderately accurate intuition to help answer these questions.” He notes, “These days, however, most of us have not tried nearly that many cases to verdict.” For that reason, the era of fewer trials has made mock trials more important in order to develop a more research-based substitute for that accumulated intuition. I would add that mock trials aren’t just for juries. You can also prepare for your judge or arbitrator by recruiting mock decision-makers or by roping in your colleagues to be part of a “murder board,” that helps you both assess and prepare.
5. Know the Law
This one might sound like an obvious one: Lawyers should know the law. But Judge Simon’s perspective is that when it comes to both substantive and procedural law, the lawyer representing the U.S. should be the expert. He also encourages lawyers to study law outside of the confines of their own case or niche. Seeing the law as “a seamless web” helps them to think creatively and comprehensively about the possibilities for their case. I would add that it is essential for lawyers to not only know the law, but to also have a good idea of how jurors and judges are likely to understand it and apply it. There are often significant gaps about jurors’ comprehension, particularly when faced with instructions that are not in plain English. A good advocate should be playing to both the accurate understanding and the likely understanding.
6. Know At Least a Little About Every Other Discipline
This one is really interesting: Judge Simon recommends that good advocates should be broadly educated and should know at least something of nearly every other discipline. Being this kind of Renaissance figure with a familiarity of mathematics, hard sciences, social sciences, economics and also philosophy, psychology, and linguistics, has a practical benefit. It makes the attorney knowledgeable about fields of knowledge that can often bear on the case. But the underlying benefit, in his view, has to do with creativity: “People who are curious about many different things and have taken the time to acquire at least a modest amount of diverse general knowledge are more likely to see connections and find creative solutions to problems than people who tend to limit their focus.” I have tried to follow that advice in this blog. I will often write about social science because that is my background, but I also strive to find lessons in politics, music, films, and even memes. These days, a good advocate should look for knowledge and inspiration in everything.
7. Know How to Be a Professional
Judge Simon emphasizes the professional responsibility for ethics and civility be carried by government attorneys, and I would add, all attorneys. It isn’t just a matter of living up to your role, but also of maintaining your credibility in the eyes of your fact-finders. That credibility is one of your most important assets and one of the easiest to jeopardize. What I recommend is that, for all fact-finders, you make sure the following is clear:
- You respect them and you respect the process.
- You know what you are doing.
- You do not waste time.
- You do not insult their intelligence or honesty.
- You keep your promises.
8. Know Yourself
Advocates are not all cut from the same mold. While everyone should follow Judge Simon’s advice of displaying “confidence tempered by humility and decency,” advocates should also do an honest inventory and know where you are good and where you aren’t; and also know what styles and strategies you can credibly pull off and which ones you can’t. That is another reason to arrange mock trial or focus group research, or to at least enlist your colleagues in order to have them hear you practice: You need some straight feedback on how you come across.
9. Know What Is Right And Do It
Judge Simon emphasizes that attorneys working for the government should focus on what justice demands and aim to put that into practice. For all attorneys, there is the natural obligation to do what is right for their client, and I would add that sometimes this means admitting your weaknesses. Instead of using your considerable skills in advocacy in order to fool yourself into thinking there are no weaknesses, you should aim to be straight with both your client and your fact-finders. If you can acknowledge a weakness, while still working toward the best outcome that the facts and the law allow, you are likely to be both more strategic and more credible.
10. Know “The Other”
This last bit of advice might be the most abstract, but Judge Simon’s point is that people, other than just the parties, are likely to be affected by a case, and good advocates should bear that in mind. Cases have an impact on victims, witnesses, other defendants, as well as society as a whole. This might be particularly acute in federal criminal prosecutions, but I believe that there is the potential in nearly every case for a general social message. As much as the instructions focus on the individual case, and as much as jurors honestly try to restrict themselves to those facts, there is no escaping that we will see the case as an example of something: safety, personal responsibility, trust, autonomy, etcetera. Seeing the case as a kind of morality play, while asking yourself, “What value would a juror be supporting by agreeing with my side of the case?” is a very useful step in trial preparation.
Much of Judge Simon’s advice and my supplements focus on the basics. But that is the point. As technical and as demanding as legal advocacy can be, and as drawn out as the litigation process is, it helps to remember that it rests on a foundation of professionalism, effectiveness, and honesty.
______
______
Other Posts on Advice to Advocates:
- Know the Difference Between Debate and Trial Advocacy
- Use B.A.T.A. to Get Better
- Remember Why You Went to Law School
______
Image credit: 123rf.com, used under license