Monday, June 24, 2013

The Skill of Advocacy

I attended the Florida Workers' Compensation Institute Spring Forum in May. As usual, there were many interesting discussions and presentations. I am particularly fond of the judicial panel (in the interest of full disclosure, I moderated this panel). 

Of course there was much discussion of Westphal and other recent case law from the First District Court of Appeal. These gatherings of workers' compensation professionals are always abuzz with such conversations. I heard similar conversations and prognostications at the Florida Workers' Advocates meeting in June. One defense attorney confided to me that case law decisions which are ambiguous and controversial are a boon to that attorney's practice. Lack of clarity may be good for business, apparently. 

I voiced the proposition that there is a fixed quantity of "predictability" in the marketplace (any intellectual marketplace). The result being that participants in such marketplaces are in a seemingly constant quest to obtain more of the predictability.  For example, as insurance carriers gain predictability in case outcomes, claimants might arguably lose predictability, and visa versa. There is a value to predictability. It is the logic behind stare decisis, the legal maxim that describes the courts' affinity for precedent. This is the foundation upon which all attorneys provide advice to clients. No litigant wants to hear their advocate say "I don't have any idea how this will come out."

That does not mean that counsel must be prescient or psychic. Litigation is fraught with risk and the unknown has been the downfall of many an attorney. The old adage "don't ask a question you do not know the answer to" is repeated by seasoned attorneys for a reason. However, there can be predictability without certainty. Appellate and trial decisions need to be written with sufficient recitation of the facts so that a competent attorney can determine whether each decision is or is not likely to impact her or his present case. Additionally, attorneys need to remain focused upon the holding of the cases upon which they rely. Dicta may be the best one has, and if so it is what one uses. However, knowing and understanding the actual holding is critical. Too many rely on the opinions of others (headnotes, summaries, etc.). Attorneys should read the opinion, know the holding, and then advise their client from that foundation. 

Attorneys should know that the OJCC publishes all trial decisions in a database. It is accessible on the OJCC website, This means counsel are able to search for decisions by any judge, or interpretations of any statute section, procedural rule, or case holding. This tool empowers attorneys to find precedent that may illuminate the way their trial may proceed, if the trial order was issued by the judge that will hear their case. Or, it may provide an argument in favor of a similar decision before this judge in this trial, even though it was rendered by another judge in some other trial. 

Great attorneys are focused upon drawing the inference that a particular piece of authority is either "on point" or distinguishable. Great attorneys never lose sight of the fact that the skill of making those analyses and arguments is one of the true keys to effective advocacy. Great attorneys read, analyze, and use their openings and closings to educate the finder of fact about the impact of opinions that support their advocated outcome or which may not, and should therefore be distinguished. 

In the end, perhaps, the point is not whether the authority could be described as ambiguous. In the end, advocates can advocate, but they cannot force courts or judges to be focused or succinct in their opinions or orders. The point is rather that no two cases are necessarily identical, and the art of advocacy is in the ability to convince the Judge why some decision or order is or is not the clarity which resolves these questions, this trial, on this day, with these facts. I have seen many advocates who are very skilled at precisely that process, and are successful because of it. 

Unfortunately, there are also counsel who present ample argument without the citing authority. There are counsel who seem unfamiliar with critical facts of their case. There are counsel who are unwilling or unable to focus upon the critical factual issues or decisional authority in either opening or closing. 

The finder of fact undertakes a difficult responsibility in deciding a case. The difficulty is diminished when both counsel focus on the issues, define the dispute, and provide the authority which could support their advocated outcome. Which kind of attorney would you want to represent you?

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