The Winning Argument.

The Winning Argument

Ronald Waicukauski Paul Mark Sandler JoAnne Epps American Bar Association www.abanet.org/abapubs/home.html 210 pp., $85

Many treatises and articles are dedicated to techniques for arguing cases, but few are as succinct and focused as The Winning Argument. Although it is only 210 pages, the book--written by three attorneys, one of whom is also a law professor--covers all aspects of preparing and delivering effective arguments at trial.

The authors clearly articulate the important principles of persuasion so often taught in trial advocacy programs. They explain that presentations must be goal-directed and address the most persuadable decision-makers. They must be based on reason, appeal to emotion, and use the best evidence in the most memorable way. And they must be delivered in a manner that enhances communication between the lawyer and jurors.

Arguments often cover a wide range of legal and factual issues and may include rhetoric that does little to advance a position. Any point made in argument that doesn't help achieve the goal is wasted.

More important, the goals of any argument, and the points made, should focus on those who will decide the case. Not all decision-makers can be persuaded, at least not to the same level of commitment. An argument should resonate with their life experiences, beliefs, and values. When the issue is communicated as an important one, it both captures the listener's attention and gives the listener a feeling of importance--the case is in his or her hands.

Plaintiff lawyers must directly state the issues to be decided. They must present facts and logical conclusions that jurors will adopt and use during deliberations. Otherwise, aggressive defense jurors and anti-plaintiff biases will cause the argument to founder.

In Chapter 4, "Winning Argments Are Founded on Reasons," the authors review the classic forms of Aristotelian rhetoric: inductive and deductive reasoning, generalization, analogy, and causal correlation. While most trial attorneys are familiar with these, even experienced attorneys are sometimes surprised by an opponent's argument.

The authors--whose backgrounds include defense work--review methods the defense bar uses to identify fallacies and weaknesses in arguments. The analysis gives insight into how to anticipate arguments that might be made against a plaintiff's position and how to counter them.

In Chapter 6, "Winning Arguments Appeal to Emotions," the authors acknowledge the power of emotion in persuasion, but they fall short of providing the practical guidance many lawyers need. For example, although they note that attorneys should be sensitive to listeners' feelings, the authors give little direction on how to do so.

In all fairness, teaching lawyers how to demonstrate emotional intelligence, subtlety, and restraint may be outside the scope of any book: It must be taught and tested in trial advocacy courses. Nonetheless, the points the authors make serve as valuable reminders that emotion drives decisions and verdicts.

In Chapter 7, "Winning Arguments Use the Best Medium for the Message," the authors stress that successful arguments incorporate visual aids that emphasize relevant facts so as to make them memorable. Both the evidence and the visuals must be sequenced to begin and end the argument strongly.

This does not mean that trial presentations ought to be merely narrated slide shows. Vivid language, rhythm, metaphors, and silence can all help make an argument memorable and persuasive.

Some trial attorneys bristle at the idea of designing and rehearsing an argument. Some believe that spontaneity is their most important asset, that they cannot relate on an emotional level if their arguments are rehearsed. Unfortunately for them, most components of effective argument cannot be produced--consistently--off the cuff.

Persuasive argument requires deliberate design and diligent practice. Lawyers who want to improve their arguments can use this book to begin that process.

Phillip H. Miller practices law in Nashville, Tennessee.