Ethics and advocacy.

Most lawyers agree with the ideal that ours is a learned profession and an honorable calling. Most lawyers admit that the system work when we behave professionally and civilly and--most of all--ethically. Most lawyers wish to act according to the ethical standards we espouse. Most lawyers agree that they know--and can perceive instance by instance and case by case--that there is a line where partisanship ends and chicanery begins.

But many of us also see some difference between this ideal and what we call the real world. We see high roads not taken by both our opponents and ourselves.

There is a vast difference between short-term advantage seized by questionable means and long-term satisfaction gained from playing by the rules. As lawyers we win and will continue to win cases by adhering strictly to the ethics of our profession. Our faith is not only in this set of values but in ourselves as well. Self-confidence and sound ethics are the hallmarks of lawyers who plead passionately and persuasively for their clients.

To survive and prosper as a lawyer today, is not easy. But survive we will. Not resorting to tactics that might let us prevail in the short run but by holding fast to a guiding principle. I propose the following survival kit for today's attorneys based on the premise that good ethics is good advocacy.

First principle: Never lie. This is something I learned in kindergarten, as the recent best-seller, by Robert Fulghum, All I Really Need to I Know I Learned in Kindergarten, says. Truthfulness is an essential component of ethical behavior. Nothing rings truer than the truth.

When lawyers seem uncertain that what they tell the jury and the court is true, others are unlikely to believe it also. Persuasiveness comes mainly from credibility.

Good advocacy isn't proving that something untrue is true. Good advocacy is persuading jurors your client ought to win because the facts on which his or her case are based arc true. We all tend to trust and be persuaded by people who are convinced that what they are telling us is true, and, conversely, mistrust and be unpersuaded by those who seem not to have convinced even themselves.

Confucius cautions us to beware the man whose stomach does not move when he laughs. We all look for comparable signs of probity. Juries sense sincerity and innately trust a lawyer Those words and actions convey strong ethical values.

We get some good advice from the commentary to the Michigan Rules of Professional Conduct: "A lawyer has authority to refuse to offer testimony or other proof that the lawyer believes is untrustworthy." Now here's the punch line: "Offering such proof may reflect adversely on the lawyer's ability to discriminate in the quality of the evidence md thus impair the lawyer's effectiveness as an advocate." Absolutely. Amen.

Good ethics is good advocacy. First principle: Never lie. Second principle: Never cheat. Never hide evidence from a jury. Never select certain pieces of relevant evidence for presentation and omit others. Our best advice on avoiding this slippery slope comes from Ecclesiastes. Loosely paraphrased, the passage reads: He who digs a pit will fall into it.

There is another kind of cheating at trial that employs the technique of persisting with a question when an objection to it or to a similar question has already been sustained.

Again, we get some good advice in this regard from the Michigan Rules of Professional Conduct. At [sections] 3.5 the commentary is: "An advocate can present the cause, protect the record for subsequent review, and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics."

Good ethics is good advocacy. First principle: Never lie. Second principle: Never cheat. Third principle: Never steal. Let's look at the example of stealing time. Efficient examination of witnesses and efficient argument persuade. Does any one believe that the angry O.J. Simpson case jury, which got that way because of the theft of their time and freedom, will be receptive to what the lawyers say? Of course not, persuaders. Some cross-examinations that you have seen are brilliant ones. They are commando raids. They are not the invasion of Normandy. Never steal.

Good ethics is good advocacy. First principle: Never lie. Second principle: Never cheat. Third principle: Never steal. Fourth principle: Never take unfair advantage. Behavioral scientists tell us that there is an expression of ourselves in everything we do. We, including jurors, seek in others what we would cultivate in ourselves. We seek character, honor, fair play, good sense, and hard work.

Good ethics is good advocacy. Four simple ideas. Four principles. Never lie. Never cheat. Never steal. Never take unfair advantage. Ultimately, these principles require us to make some highly personal decisions. When we raised our hands and took the oath of our profession, we swore to employ such means only as are consistent with truth and honor. We have already made that most deeply personal commitment. The irony and difficulty of this oath is that it makes our highest duty, as lawyers also our most intangible--hard to grasp and difficult to articulate. Essentially the oath is a duty of loyalty not to persons, not to a specific case nor to a particular client, but to the institutions and the procedures of the law that make the justice system work, no matter how imperfectly.

We teach others. Every single day that We represent a client in court, we teach others. We teach all those who come to the system--those who have faith in it and those who have lost faith in it. We do not perform a public service if we violate the four principles of ethics mentioned earlier, and I suggest that we do not win cases that way. If we muddy the waters of decision making by obfuscation, we get muddy decisions.

Jury studies done in Chicago in the early 1960s and in Massachusetts in the late 1980s show that juries decide cases based on a story model. Jurors listen to lawyers' presentation of the facts of the case and then decide what happened. Then jurors decide what they want to do about the story they have heard. All questions arc resolved by what fits, or does not, within the human story the jurors have settled on. Mainly, they ignore the burdens of proof. They decide what really happened. They don't go away with crime unsolved or the responsibility of the parties undecided.

Shouldn't we seek in all our cases, in order to appeal to that story model of jury decision making, to be on the side of the simple truth?

In our closing arguments, don't we use that as our theme? The simple truth. (Never lie.) Don't we seek to be on the side of common sense? (Never cheat. Don't we seek always to be on the side of fair play? (Never steal.) Don't we seek always to appeal to the jury's sense of simple justice? (Never take unfair advantage.) These are the principles that prevail in closing argument and win our cases.

When we teach trial advocacy, we tell advocates to always stop a minute and take a deep breath before beginning an exercise, making an argument, or conducting an examination. Stop, collect your thoughts, and then begin.

I think we all need a similar talisman to get us off to a good start. Here is mine. Well, not originally mine--originally Sir Thomas More's, but nevertheless mine in that I repeat it before every jury argument. "Lord, let me be able in argument, accurate in analysis, correct in conclusion, candid with my clients, and honest with my adversaries. Stand beside me in court so that I will not, in order to win a point, lose my soul."

Good ethics is good advocacy.

Thomas H. Blaske is a partner in Blaske & Blaske in Ann Arbor, Michigan. This article was adapted with permission of the Advocacy Institute, Institute of Continuing Legal Education in Ann Arbor.