Vail Daily column: The art of law
You sometimes hear that a given profession — or any undertaking for that matter — is more art than science. And while that’s true, particularly in the eyes of those most intimate with it, I suspect it is more true in the practice of law than, say … science.
While there are to be sure about a zillion statutes, rules and regulations to consider, to say nothing of the zillion-and-a-half prior decisions that make up what is known as precedent, much of law is how that volume in finessed. Now, don’t get me wrong, by “finessed” I don’t mean to say “gamed.” While the language of a statute or a rule is often subject to interpretation and a precedential case is seldom squarely on all fours with any particular matter, what I mean by finesse is the spin one places on one’s shot, the force with which it is delivered and the means and pace by which a case and one’s strategy is revealed.
In short, there is more than one way to skin a litigation cat.
Start At The Beginning
Let’s start, though, as Julie Andrews taught us, at the very beginning.
First, what is the distinction between case law (also known as common law) and statutory law? Well, it’s really fairly simple. Statutory law is law created by the legislature. A statute is an edict, if you will, that dictates an action that you must take or forbear from taking. A statute is a law that was created to address a specific situation, one that is adopted by the legislature, enacted into law, and encoded into a book of statutes.
Common law is the law created over time by prior court decisions. Think of Brown vs. Board of Education, Roe v. Wade. These cases and others like them set a legal tone and precedent that other courts generally follow, but sometimes carve out exceptions and distinctions. Rarely, down the line courts overturn a case upon which years, or sometimes decades, of precedent have been built. A good example is the Dred Scott case (technically Dred Scott v. Sandford), an 1857 case wherein the U.S. Supreme Court held that African Americans, whether slave or free, could not be American citizens and therefore had no standing to sue in federal court. Blissfully, although never officially directly overturned by case law, the Dred Scott case was effectively relegated to the trash bin of shame and history by adoption of the 14th Amendment to the U.S. Constitution.
So within the confines of precedent and statutory law, as guided by the rules and regulations that dictate how a case is shaped and ultimately unfold before the court, is where the creative juices of attorneys flow. While it may seem that we litigators are buttoned up and constrained, there is, in fact, wide latitude for interpretation. Essentially, the rules provide that we may argue any position which distinguishes, extends or modifies existing law. We may, of course, also use it as a sword when the weight of law is with us. And when circumstances dictate, we may argue that prior law should not apply; it is unjust, unfair or just plain wrong.
While all of the foregoing is true, that is not really what I mean by the “art” of law. The art is in the strategy and in the delivery.
An example here might help.
Anyone can draw the figure of a person. Even I am capable of a stick figure, a rendition of which your 3-year-old could likely out-perform. Take a Michelangelo, however, and few with any sense at least would argue that his work outshines mine by a country kilometer. But now take Picasso or Van Gogh; different, to be sure than the more classical Michelangelo but appealing and compelling in their own ways. What they have in common (excluding, mercifully, my stick man — unless the emotion one is trying to evoke is sympathy or pity) is that while the subject may be the same, the emotion that the presentation evokes is entirely different.
I have seen very effective attorneys who are bulldogs. They “tell” the jury how it is. They will not broker any dissent. Delivered properly, they can be quite compelling. I have also seen effective trial counsel who are the incarnation of Atticus Finch, gentlemanly to a fault. Of course, there is everything in between. The one commonality, however, that effective trial counsel share is preparation. Kids, listen up; there is no substitute in life or in a courtroom for doing your homework. Even the least sophisticated person in a jury can generally sniff out a three dollar bill.
Not only is it essential how an attorney crafts and shapes her case before it comes to trial, but the theater of the trial itself is critical. The jury judges nearly as much sometime on how it views the lawyer as the facts laid out before it in an often dizzying smorgasbord. Sometimes, there is simply too much for the jury to digest and the attorney must be an effected and a trusted guide.
Hollywood has made much of opening and closing arguments and, indeed, they count. The attorney must be forthright, clear and believable. A good attorney doesn’t compromise his integrity, peddling what is unbelievable and what, oftentimes, the attorney often doesn’t buy. Best to leave it out and to craft a case out of what can realistically be subscribed to by persons of good faith. A good attorney must also owe up to the holes and weaknesses that every case contains then endeavor to explain them in context. At the end of the day, a good attorney is one whom the jury believes because he is believable. And the best way to get to being believed is to simply, but carefully, tell the truth.
Courtroom is theater and to be effective, one must craft one’s presentation to be engaging. One must tell one’s story simply. If the jury cannot follow you, then they’re not likely to set up camp in your corner.
Just like Kabuki or Martha Graham, law is theater, but it is theater which must generally be played with a deft and subtle hand. Or maybe, come to think of it, it is more like a Gypsy Rose Lee performance where, layer by tantalizing layer, what lies beneath is breathlessly revealed.
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 Stevens, Littman, Biddision, Tharp and Weinberg LLC. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) and seen on ECOTV 18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at either of his email addresses, firstname.lastname@example.org or email@example.com.