A blupete Essay

On Being An Advocate, Part 3 to blupete's Essay
"An Essay On Lawyers"

While there are cases which can only be brought to an end after a full blown trial, most cases are sorted out between lawyers before so. Two experienced lawyers rarely come to blows in a court room unless it is over a case where there is a principle at stake, such as in a criminal case or a civil action in defamation. Two lawyers who are experienced in the law and its workings will usually, eventually, come to the business of settling most cases. Too often it happens that cases end up in a court room because of the inexperience of one or both of the lawyers who are working the case.
"Vulgar chess-players have to play their game out; nothing short of the brutality of an actual checkmate satisfies their dull apprehensions. But look two masters of that noble game! White stands well enough, so far as you can see; but Red says, Mate in six moves; - White looks,- nods; - the game in over." (Holmes, Breakfast-Table.)
Sometimes the end cannot be so easily seen by one or the other, and, the legal battle proceeds and one must bring all his talents and experience to bear so that the hoped for conclusion might come about. Most of the work is in the preparation and good preparation will make for an easier time of it in a court room, or, as often happens, settlement discussions might come about when the other side realizes that the case is being well prepared, for -- a thorough, detailed and exhausting presentation. Once in court: native instinct, supported by good preparation, will take over. Macaulay in referring to an accomplished advocate, writes:
"Without positively asserting much more than he can prove, he gives prominence to all the circumstances which support his case; he glides lightly over those which are unfavourable to it; his own witnesses are applauded and encouraged; the statements which seem to throw discredit on them are controverted; the contradictions into which they fall are explained away; a clear and connected abstract of their evidence is given. Every thing that is offered on the other side is scrutinized with the utmost severity; every suspicious circumstance is a ground for comment and invective; what cannot be denied is extenuated, or passed by without notice; concessions even are sometimes made; but this insidious candor only increases the effect of the vast mass of sophistry."6
Macaulay continues and points out that if a damaging piece of evidence cannot be denied, then, "some palliating supposition is suggested, or we are at least reminded that some circumstance now unknown may have justified what at present appears unjustifiable."7 The ability to raise searching difficulties on both sides of the case is an absolute requirement for the litigator, he always welcomes all tries at his various positions that might be made in advance of the final trail. It gives one the opportunity to strengthen the weaknesses of the case and make it more solid to withstand the onslaught at trail.

And always, and from the start, the advocate is preparing for his conclusion, or peroration. All along he is writing up and perfecting his summation in a special place found in the back of his trial note book, the parts of which, in those last few weeks before trial, is being written and rewritten as the essential points of the case are polished up. With care, and from the start, the pieces of evidence needed to support the final arguments are gathered and systematically gotten out. The arguments and the evidence must be built together as the case, over time, is prepared for trial.

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2011