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 [VOL. 1: p. 290

ON ADVOCACY *

ABRAHAM L. FREEDMAN t

I.
INTRODUCTORY.

It seems only natural that a discussion on advocacy should come

from one who is himself an advocate. Indeed, it appears quite obvious
that only an advocate can speak with knowledge of advocacy. Yet
on analysis this is not so obvious a proposition as it seems on the
surface. For advocacy partakes so much of the qualities of art that
it may well be questioned whether advocates themselves are conscious
of the attributes which underlie their success. Just as the writer and
the artist generally fail to meet our expectations when they under-
take to describe the sources of their power, so also is there a feeling
of inadequacy when an advocate consciously seeks to describe the
elements which make up his art. For in a sense the artist who suc-
ceeds has become a man of action. What has been hidden and un-
conscious has taken on an external form; and wise though he may be
instinctively, he is not necessarily gifted with the capacity to under-
stand the hidden mainsprings of his action or to explain how they
break forth from intuitive comprehension into specific action. This is
why most of the descriptions which the advocate gives of his own con-
duct are no more than ex post facto probings toward an explanation
which will match what he has already instinctively done.
Thus it is that when an advocate has finished speaking on advocacy
what remains-after the first enthusiasm of his audience at surcease
has subsided-is the gathering up of a few more or less obvious rules
of conduct, and if his address has been sparkling and entertaining, a
sprinkling of some interesting personal anecdotes either from his own
experience or which, with hasty erudition, he has summoned from the
past.
I point out these deficiencies which are common to every at-
tempt such as this, not to engage you in the hope of something better
• A lecture delivered at Villanova Law School.
t Former City Solicitor, City of Philadelphia; LL.B. 1926, Temple University;
member of the Philadelphia Bar; formerly, Professor of Domestic Relations, Temple
University Law School; Lecturer on Family Law, University of Pennsylvania Law
School; author, Freedman, Law of Marriage and Divorce in Pennsylvania.

(290)
MAY 1956] ON ADVOCACY

on this occasion, but rather to plant your expectations on realizable

ground.
I hasten to add, however, that my theme is not to demonstrate
that there is nothing to be said on advocacy. The very difficulty of
penetrating the mystery of advocacy makes the tantalizing theme ever
attractive-worthy of continuing exploration.
II.
THE ROLE OF THE ADVOCATE.

The work of the advocate has always had a fascinating attraction.

The high drama which surrounds his activity and the human material
with which he usually deals are sufficient to excite the deepest interest.
When we recall that the arbitrament of disputes through the means of
advocacy is the substitution of persuasion for force, we approach an
even deeper basis for our interest in advocacy.
The courts are the instrumentalities by which organized society
puts down the controversies which rise up for solution. The advocate
determines and shapes the materials which call forth the courts' de-
cisions.
As the law comes to deal more and more with economic and
social factors and as government itself spreads its activity more openly
into these realms, the advocate in presenting individual cases to the
courts deals with the effect of these factors; he holds them up to
public scrutiny and consideration in circumstances where they collide
with currents which have their impulse from other individuals, other
groups, or the State itself. Advocacy, therefore, is the window through
which there is presented on public display the conflicting social cur-
rents in society and the debates regarding the choices to be made.
It is therefore inevitable that the advocate so often assumes the
role of libertarian. For out of the complex activity of men in organized
society it is he who finds through the channel of litigation the means
of presenting for open debate and individual determination the choice
of policy to be made between competing interests. Thus he stands as
the representative of the individual in his claim of individual right
against other individuals, personal or corporate, no matter how powerful
they may be. Thus he stands also as the representative of individual
right as against the power of organized groups. Indeed, thus he also
stands as the representative of organized groups which seek protec-
tion against the superior power of the State itself.
And thus, by a remarkable device, the advocate, representing
individual parties and maintaining their individual interest, spreads
into view abstract questions of the utmost breadth.
292 VILLANOVA LAW REVIEW [VOL. 1: p. 290

The advocate, then, serves a dual function. He represents the

individual litigant whose interests are merely in the decision of his
own case. Yet at the same time, in fashioning the material for deci-
sion, he summons up for presentation in the public forum of the court
a living segment of society in action and with it the clashing claims
of competing social needs. Then, in the courtroom this material is
surveyed, and in the light of its evaluation the court's decision is
made. Much of the merit of judicial decision depends on the capacity
of the bar to produce the relevant material.
So a living, organized society goes about its immediate affairs
intent upon its activity and little inclined to indulge in speculation re-
garding the nature of the processes which it sets in motion. But
when disturbances reach the point of litigation they are brought to
the bar of justice where the skill of the advocate can summon up for
conscious consideration and examination the very forces which other-
wise would operate without conscious consideration. In the courts
the judgment must be made between competing policies and competing
rights which in competitive society had been determined more or less
entirely on the basis of power.
This dual function of the advocate, in which he represents the
individual litigant and yet at the same time helps in the airing and
ultimate clarification of great social problems, is constantly illustrated.
The Gold Clause Cases' were just lawsuits. Yet much of the
financial foundation of a society, on whose health sound public finance
depends, was there determined. Political and social issues of the highest
order were entwined in the effort to liberalize and yet stabilize the cur-
rency. Some thought the effort revolutionary and were certain that it
marked the path to the destruction of the nation's solvency and its finan-
cial integrity. Others thought it was but an effort at experimentation in
a realm too long thought sacrosanct. Yet the will of a popular President,
supporting a great popular cause which had its impetus in the terrors
of depression and the ominous shadow of danger to the existing struc-
ture of society, could not rest on its own fiat. With the same form of
respectful submission as every private litigant, the government itself
had to justify in terms of law rather than of its will or even of the
national advantage, the program it had espoused. What a harnessing
of power in submission to law.
The great school segregation cases 2 were decisions involving the
rights of a few individual litigants. Yet within the confines of a legal
1. Norman v. Baltimore & 0. R.R., 294 U.S. 240 (1935).
2. Brown v. Board of Education, 347 U.S. 483 (1954).
MAY 1956] ON ADVOCACY

proceeding the deepest currents of conflict within our society were ex-
posed to the rational processes of argument and judicial decision.
What a ventilation of social conflict. What a dramatic exhibition of
the draining off into the forum of reasoning debate, of deep and violent
passions.
In the steel seizure case,' again the channel was a legal proceed-
ing. But in it followed to an ultimate judicial decision a debate of
the highest policy considerations dealing with the authority of the
State against the individual.
The blue eagle of NRA, designed to change and regulate the
methods and philosophy of American business, was brought to earth
by the legal blow struck by a neighborhood chicken dealer."
Reaching conclusions in matters of this kind by judicial decision
is an enormously powerful safeguard for the security of the social
structure. It proclaims that the strongest and most passionate views
must ultimately be put to the test of reason and find solution through
the processes of law rather than force. The judicial processes are
the great safety valves through which may be let off the ferments of
change and the explosions of conflicting interests. The advocate is
the engineer in charge of these valves.
Above all, it is the essence of the advocate's work that in the
civilized atmosphere of courts of justice he urges the claim which he
represents and no matter how fierce may have been the contest, he
ultimately submits in peace to the decision of the courts.

III.
THE SCENE IN WHICH THE ADVOCATE IS CAST.

Advocates, to whom the courtroom is so familiar, tend to become

unaware of the uniqueness of the scene in which the advocate is cast,
a uniqueness which a fresh impression would at once convey. It is
only by making the effort to see the scene with eyes uninfluenced by
familiar impressions that we realize how much the courtroom itself can
teach us about the advocate.
In the courtroom perhaps the most consistent element in the
various qualities which the advocate reveals is his ability to center
all attention upon himself. It is this which makes him appear to have
a commanding appearance, a penetrating eye, or a hypnotic power. It
is this which makes him appear to dominate all others in the court-
3. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
4. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
294 VILLANOVA LAW REVIEW [VOL. 1: p. 290

room and thus to appear stronger and more powerful than they. This
willingness to assume complete responsibility, to take over the risks
of his client, to confront his adversaries, to deflect upon himself the
sharpest dangers to his client, is what ultimately creates the impression
of the masterful.
Yet a courtroom means a judge, whether an individual judge
or a judge and jury. And it is before the judge and jury that the
advocate performs his work. The understanding of the role of the
advocate becomes easier when we turn from him for a brief glimpse
at the role of the judge. The parental figure represented by the judge
clarifies our understanding of the advocate. The advocate represents
a confrontation of authority in the mask of humility. This masterful
man must work within a framework of subordination. He may un-
leash against the witness all the weapons in his armory but-aside
from the restraint of his own integrity-the only check upon his sar-
casm, scorn and even brutality to the witness is the ever present test
whether he is pleasing or offending the judge or the jury. If there
is one point upon which all trial lawyers would agree, it is that the ad-
vocate must never offend the judge or the jury. For all his efforts
are directed to the single issue of their decision. It is their decision
which will swallow up all the doubts, the turmoils, and the uncertain-
ties of the struggle.
Accordingly, within the framework of the constraint put upon him
by the judge and the jury, the advocate must dominate the scene. The
client turns helplessly to him for care and protection. Men successful
in their own affairs, when they come into his hands are childlike in
their faith and in their helplessness. His role is nothing less than
parental. Yet in this very process of dominating his clients and seek-
ing to dominate the witnesses and masterfully engaging in combat
with opposing counsel, he is the subordinate and indeed the child of the
judge. Even the nomenclature of the courtroom is loaded with echoes
of subservience and the effort at placation. "May it please Your
Honor", "With submission to Your Honor", are phrases so well-worn
on the tongue of the advocate that it must be surprising to contem-
plate what it would mean to hear them said in any other walk of life.
Accordingly, aside from specific capabilities and talents, the ad-
vocate must have the psychological qualities which render it possible
for him to express his aggressiveness while at the same time main-
taining unbroken the paradoxical role of humility before the judge and
jury.
The stage on which the advocate acts is so fascinating, among
other reasons, because it is a microcosm with all the exaggeration which
MAY 1956] ON ADVOCACY

the compression of life into a stylized, dramatic form creates. The

advocate is the chief actor in the play, and yet remote and above him
participating and yet outside the play itself and holding the ultimate
power of judgment, is the judge. How profoundly similar is the ad-
vocate's role to the lot of every actor on the stage of life.

IV.
THE QUALITIES OF THE ADVOCATE.

The role which the advocate plays, the scene in which he is cast,
all make demands upon him. What are the qualities which best fit a
man to play the part of an advocate?

1. Physical appearance. Reference is often made to the physical

appearance of the advocate. He is described as having a commanding
presence or majestic or sonorous voice or a penetrating eye. In many
cases these descriptions are accurate; but one can easily recall masters
of advocacy apparently lacking in grace or charm. These qualities,
of course, are desirable, and blessed are those whose physical appear-
ance gives them either an attractiveness to their fellow men or a quality
of commanding presence. It is clear, however, that the basic element
here sometimes confused by external appearances, is the ability of
the advocate to center attention upon himself and to create the im-
pression of the masterful.

2. Curiosity. A ceaseless, restless striving in an endless sea

of facts and circumstances is one of the outstanding qualities of the
advocate. Such a lawyer will break down the incomprehensible resis-
tance of his client to the discovery of the facts, even those which are
helpful to his case. He will not accept his client's assurances that
there are no relevant documents, but will himself ransack the files.
In the course of preparation, he will lead and even force his client and
his witnesses through every path and byway in the search for facts.
When an advocate laments that his client has disappointed him
on the witness stand in the revelation of some fact hitherto unknown
to him, he reveals only the lack of thoroughness in his own prepara-
tion. For in reality, strange to say, the client with all his protestations
of the justice of his own position, nevertheless erects a barrier between
himself and the advocate in ascertaining all the facts. He will be sure
that certain facts are irrelevant and not bother to speak of them. He
will be sure that certain witnesses know nothing that would be of
 VILLANOVA LAW REVIEW [VOL.. 1: p. 290

value and not bother to give the advocate the clue to the discovery of
what they know. He will not bother with seemingly irrelevant docu-
ments or leads which point the way to evidence of the greatest value.
Like the archeologist digging in the wastes of time the advocate must
struggle against the accumulated assurances of his client that all the
facts have been revealed in order to find what facts truly are available.
3. Clarity of mind. Clarity of mind is an essential quality of an
advocate. It is, of course, an essential ingredient in many other ac-
tivities,-such, for example, as lecturing. In law it is a quality desir-
able also for the office lawyer- But with the advocate it is of the
essence. For court and jury, who are the objects of his efforts at
persuasion, are all of them human beings with difficulties of their
own which tend to draw them away from concentration. What the
advocate seeks to convey must be crystal clear if it is to win their
interest and ultimately their admiration and approval.
4. Imagination. The quality of imagination will make it possible
for the lawyer to establish hypotheses which will aid him in the search
for facts and ultimately even in the reduction of the mass of facts into
some unified whole. Imagination will put him in the place of the
participants; will make him feel and understand the motivations of
their actions and the form in which men of such a nature would act.
It will lead him to search for facts of which as yet he knows nothing
but which he will already be able to imagine must have existed. His
imagination will create positions on which to take his stand, tentatively
to be sure, but secure enough to justify the search for the facts which
they presuppose. That same imagination will give him a compre-
hension of the effect of the evidence as it is presented to the court.
It will give him an ever-present awareness of the luminous whole;
and from it he will detect why a witness's story seems but a fragment
of what he knows and when an opponent's case is glaringly lacking
in some element, which would already have been made known if it were
true.
Imagination will help him in the great work of synthesis of the
raw material thrown up in the course of preparation and ultimately
in the synthesis of the contradictory evidence of both sides. In his
own mind the facts and impressions he has absorbed regarding the
case will fall into some luminous picture which has form and pattern.
New impressions, new circumstances, new facts developing at the trial,
will all be incorporated into an ever-changing but always vivid image
which the advocate will always have present in his mind.
MAY 1956] ON ADVOCACY

This imagination coupled with clarity of mind will make the ad-
vocate able ultimately to make the contrast between the evidence of
one witness and another and finally between the plaintiff's case and
the defendant's case. It will make possible the description of the
details of an automobile accident case in a simple graphic form. It
will make possible the escape from the technicalities of medical lan-
guage and the conversion into human terms of the forms of illness and
of human suffering. It will make possible the presentation on appeal
of the panoramic picture of what may require hundreds or thousands
of pages of printed record. These qualities of clarity of mind, imagina-
tion and capacity for synthesis, are essentially the capacity to see clearly
through a maze of details and, dealing with large ideas, to give even
the petty and the detailed its broad human scope. With these quali-
ties the advocate will have, in Mr. Justice Holmes' phrase, an eye
microscopic in its intensity and panoramic in its scope. With them
the advocate will not only satisfy the interest of the court and jury; he
will do more, he will engage their gratitude as fellow human beings who
have discovered points of mutual interest, who feel a reward is due
to one who has done what in essence is a sublime thing: created order
out of chaos.

5. Capacity for expression. The clear, constructive image in the ad-

vocate's mind would be imprisoned there did he not also have the
capacity for its oral or written expression. It is not a smooth tongue
or the easily tripping phrases, that I have in mind. It is the ability
to describe the image which already is clearly in the advocate's mind,
to depict it in such a way that it emerges with clarity equal to that
which the advocate already has in his own mind and with the added
element of vividness of imagery and expression; the capacity so to
illuminate the image that it finds a brightness in the hearer's mind.
It is this brightness which creates the heightened emotional effect and
gives to the hearer the sense of the dramatic and thus adds conviction
to logic.
Much has been written about style of speech from earliest times.
Customs in these matters of course change and a Roman orator of
Cicero's day would be thought a caricature of an orator today. But
the essential elements upon which the advocate plays are immutable.
It is still the human mind and the human heart which the advocate
seeks to move and persuade. Words are the means, the instruments,
which he must use. Yet their power is not lightly to be weighed.
They are the symbols by which human beings have learned to convey
 VILLANOVA LAW REVIEW [VOL. 1: p. 290

their thoughts and the style of the speaker is the means he employs
in the use of this mighty weapon of words.

6. Quick and intuitive mind. Quickness and readiness of mind are

essential to the advocate. His work in a courtroom permits him little
time for contemplation. Unlike the office draftsman, he has no time
for revision or correction. What comes to his mind spontaneously
must serve as the finished product. He must deal with a swiftly chang-
ing scene, yet deal with it with assurance and imperturbability. This
is impossible to the mind which although capable even of profound
effort, moves slowly and spirals from change to change to its ultimately
evolved conclusion.
The distinguishing hallmark of the advocate is the capacity to
improvise and above all to act spontaneously and intuitively in the
heat of the battle. This spontaneous and intuitive quality draws
on sources deeper than the intellectual abilities of the advocate. It
draws upon unconscious sources and is fed by the wellsprings of emo-
tion. It is this quality which defies analysis and is even difficult to
depict. It is known, however, from the unvarying skill with which
the true advocate makes his spontaneous choice from all other pos-
sibilities open to him.

7. Humor. A courtroom is a place of serious business. All its sur-

roundings emphasize the grave nature of the judicial proceeding. The
heavy engagement of the participants in the proceedings and the strange-
ness of the surroundings to the lay witnesses and parties, have often
been adverted to as causes for uneasiness in a place where above all
it should be possible to be at ease. In appellate tribunals the element
of strangeness is lacking, for the actors are the professionals who are
presumably familiar with the scene. Nonetheless the limit of time
imposed upon arguments in appellate courts with the consequent neces-
sity of concentration of so much in so little time, and the drama of
argument, create an atmosphere of tension similar in effect to that
which prevails in the trial courts among the litigants themselves.
In the trial court and on appeal, the careful and restrained use of
humor, spontaneous and appropriate to the occasion, brings relief and
gratitude to the parties, their witnesses and to the court and jury.
If the humor is such that it illustrates the advocate's point, then all
the greater is its effect. Above all, humor sparingly indulged in
reveals the objectivity of the advocate. It makes it impossible to think
of him as a chained lion in whom the lust to destroy his adversary
has swallowed up all other considerations. It shows him instead as
_MAY 1956] ON ADVOCACY

civilized, mindful that there are other things in the world than the suc-
cess of his client's case, able to appreciate the views of his opponent
and to concede whatever merit it may have.
8. Sincerity. Sincerity is a quality which perhaps more than all others
has been artificially copied; yet it is most highly to be prized when it is
genuine.
The role of the advocate is often misunderstood and in no area
is misunderstanding more widespread than in the problem of his com-
mitment to a cause which has an adversary equally committed to the
other side. How then can both advocates be sincere?
Some would explain that the successful advocate is able to persuade
himself of the justice of his client's cause and to forget conveniently
the merits of the other side. These elements indeed exist. But they
are far from the complete explanation. For we must not forget the
complexities and the conflicting currents which exist in reality. They
are magnified by the ever-present and troublesome disparity between
law and justice. So it will often happen that an advocate can sincerely
press his view because it is supported by the existing law, and con-
versely his opponent may with equal sincerity present his own view in
an effort to persuade the court to overthrow an established rule of
law because justice requires it. This may well be due to the fact that
the hypothesis of our legal system is that justice will be better served
in the long run if rules of law are followed in every case than if they
are made to yield in each case where individual justice would seem
to require it. This is the old problem behind the growth of equity
jurisprudence, which, in Blackstone's words developed to correct in-
justice where "the law, by reason of its universality, is deficient." And
now the problem is that the rules of equity have crystallized and
hardened with the years.
Nor must we fail to notice that even in apparently unjust cases
a litigant may be exposed to a specific act of injustice which may
excite the utmost earnestness of the advocate. What better illustration
can there be than a confessed criminal whose lawyer knows that he is
guilty but feels a burning resentment at the use of the third degree
methods on his client.
The popular question, how can a lawyer maintain a view which
he knows from his client is without justification, poses a problem that
is rarely encountered in real life. It seems so simple to ask how a
lawyer can honorably represent a confessed murderer. But there are
questions of degree of wrong; questions of sentence as well as guilt.
And when one comes to grips with the problems of another human
 VILLANOVA LAW REVIEW [VOL. 1: p. 290

being there inevitably arise currents of involvement and association

which pull upon the human sympathies of the advocate and create in
him a longing to alleviate or to help. There is no criminal whose life
story will not furnish some reason for sympathy and pity.
When one considers the backwardness of some rules of law it
is easy to understand how much room there is for a sincere advocate
who is willing to dash himself against the apparently irrefragable
obstacles of settled principles. Indeed it is often such an advocate,
who is less learned and less respectful of precedent, who may create
a breach in an apparently unbreakable rule of law.
Even in the more prosaic domain of civil law there are few con-
troversies in which one side is black and the other. white, and there
are sufficient areas of human justification or sympathy on each side
to involve each advocate in a commitment to his client.
Again, a jury's verdict may have justly decided the facts, yet the
advocate may feel an abiding sense of injustice because of the trial
judge's actions toward the parties or their witnesses.
9. Objectivity and fairness. The advocate must combine the passionate
conviction of the justice of his case with an unbreakable objectivity.
This objectivity will save him from demagoguery, from blind partisan-
ship, and from the inability to see the merits of his opponent's case.
It will be possible for him to be free from distortion in his statement
of the facts; to include what harms as well as what helps his case, and
to be free from despair every time the course of the trial or argument
takes an adverse turn.
Perhaps the most powerful form of oral argument is one which
presents the facts objectively, fairly reveals the arguments that can be
made on both sides and then, marshalling the factors which weight the
scales to one side, emerges with the true conclusion. Such a conclu-
sion seems almost unanswerable. The best form of advocacy, there-
fore, as well as the fairest, is that which brings the advocate most
closely to the form which the opinion of the court will ultimately express.
There, too, in its fairest form will be found an objective and accurate
recital of the facts, a recognition of the arguments that may be made
from them on each side and the ultimate choice of the conclusion
resulting from the weight leading in that direction.
The objectivity of the advocate reflects itself in many aspects
of his work. It will save him from the perils of overtenacity. We
all know the advocate who insists on answering every point the other
side has made and who cannot let any point, even the most trivial, go
unanswered. He burdens the court or the jury with his laborious ef-
MAY 1956] ON ADVOCACY

forts and obscures the merits of his case in a jungle of details. A

lack of objectivity leads downward to the petty. It trades for the
passion for justice, a passion for success.
The objectivity of the advocate is, however, a different objectivity
from that of the judge. With the advocate, objectivity must be ever
present and yet, existing side by side with it, paradoxically, must be a
deep emotional involvement with his side of the case. It is the ability
to convey this strong feeling, while at the same time being able to survey
what his strong emotions bring forth and channelize and pattern them
in acceptable standards of rational argument, which characterize the
difficulty and the uniqueness of the advocate's role.
10. Character. Much of the advocate's success depends upon his
character. Inevitably, from the nature of his role, the advocate moves
into the foreground and by his presence obscures the litigants them-
selves. In this prominent position the jury comes ultimately to judge
the merits of his client's case by its judgment of him. In the trial
courts many a jury's verdict has been the product of its regard or
dislike for one of the counsel in the case. In the appellate courts,
although the play of the advocate's character is more subtle, it is al-
ways an important element. The indignation of an advocate esteemed
for his moderation and integrity is profoundly moving, whereas the
artificial indignation of an advocate is a shameful exhibition. The
axiom that when a witness takes the stand he puts his character in
issue may well be turned to a maxim of advocacy that when an ad-
vocate seats himself at the counsel table the issue becomes his character.
It is of course true that the qualities of character are often sought to
be imitated. At times the artificial product passes for genuine currency.
Yet when the test is greatest the hollow ring can most readily be
detected.
One cannot here undertake to assay what constitutes character.
But as reflected in the advocate's conduct in the courtroom, character
is the impression that he creates as a man who seeks justice, who loves
truth, and who plays fair, who is generous to the hard pressed and
strong enough to be bold with the overbearing. It reflects itself in the
trivia of daily conduct in the courtroom, His manner at the counsel
table to his associates; his courtesy-not ingratiatingness-to his op-
ponents; his devotion to the task at hand; his unwillingness to squeeze
,he last drop of advantage from a point which goes his way; his manly
concession of the merits of his opponent's case.
This is not an impossible picture. There are advocates who
try cases in this way and they are particularly successful because the
 VILLANOVA LAW REVIEW [VOL. 1: p. 290

jury and the court come to trust them. Such an advocate's summation
to the jury is not the wild exaggeration of the perfection of his client's
case and the complete wickedness of his opponent's position. It is
rather-and here again clarity of mind has its reward-a narration of
the opposing views with a commentary of their merits and the ultimate
presentation of the one as outweighing the other.
I know that there are advocates who would smile at this descrip-
tion. They would consider it impossible to try a case without berating
their opponents; they would consider it dangerous to concede the
slightest imperfection in their side of the case; they hold in low esteem
the jury, and firmly believe that the din of the courtroom brings a far
greater reward than adherence to the truth.
Nor would I deny that such advocates do at times have success.
It must be conceded that success often attends the contemptuous. So
also does force at times conquer truth. But we have staked our ul-
timate hope on the belief that in the long run truth prevails. And in
the long run our admiration for skill and integrity will outweigh the
wild and shameful applause for the demagogue who thunders at a jury.

V.
THE TECHNIQUES OF THE ADVOCATE.

We may begin with the last step of the work of the advocate:
the oral argument.

1. Importance of Oral Argument.

There are some who minimize the significance of oral argument.
When one considers that the advocate in an argument on appeal presents
his views to judges whose minds have not yet been touched by the
case and who are open and receptive to every fresh impression, it seems
to me impossible to overestimate the importance of the oral argument.
This is especially true in states like Pennsylvania, where appeals are
as of course and the court has not already acquired a knowledge of the
case on application for certiorari.
Given the importance of the oral argument, let us turn to the
advocate himself.

2. Conduct and Demeanor.

There are a number of'obvious matters governing the conduct and
demeanor of the advocate.
MAY 1956] ON ADVOCACY

(a) Dress.
The advocate's dress should be inconspicuous and pleasant in
appearance. While we have come a long way from the formal attire
once required in some appellate courts, the concentration on form still
lingers in various ways. One court very recently required by a notice
posted at the rostrum that the advocate keep his coat buttoned if he
wore no vest. Whatever one may think of these trivialities about ap-
pearance, since they represent the will of the court they should be
cheerfully obeyed by the advocate. But beyond these details, his dress
is only the outward form which should reveal a man of dignity, fairly
well adjusted to his surroundings. If this be so then his dress will not
be bizarre nor his appearance jarring to the members of the court.
(b) Manner of Address.
It is well for the advocate to stay physically close to the rostrum.
The peripatetic advocate who strides back and forth across the
courtroom distracts attention from what he says and indicates, even
if unjustifiably, confusion in his own mind about his case. He should
stand erect on both feet. Nothing but distraction is the result of
watching the gymnastic exploits of an advocate, who moves from
one kind of embrace of the rail to another; and whose one foot climbs
up the other leg and back again.
(c) Voice.
The voice of the advocate should be easy to hear but not too
difficult to bear. It is remarkable how a low but audible voice will
draw a concentration of attention while a shouting, noisy advocate will
close the ears of the court to what he says. "An over-speaking
judge," says Lord Bacon, "is no well-tuned cymbal," and an over-
shouting advocate who beats too loudly at the ears of the court drowns
out much of the merit of what he says. What a sign of inadequacy
it is for an advocate to be told by the court to raise-or worse, to
lower-his voice. These are, of course, obvious matters. They should
hardly be spoken. Yet the fact is that violation of these simple re-
quirements of deportment goes on every day.
3. Order of Speaking.
Sometimes the advocate has the choice whether he or other counsel
should speak first. Where the order is fixed and appellant necessarily
speaks first and the appellee follows, it is still an interesting theoretical
question who has the advantage. There is no absolute answer to the
 VILLANOVA LAW REVIEW [VOL. 1: p. 290

question. The advantage comes to him who has the greatest skill in
using the opportunities which his particular position affords, whether he
be appellant or appellee, and whether he be first or last of counsel on
his side.
Thus, if the appellant's argument is disjointed and the facts are
presented in fragmentary or obscure form, whatever advantage he
might have had in going first has been lost. If in such a situation the
appellee presents to a confused and frustrated court a clear and readily
understood narrative of the facts, the gratitude of the court for receiving
the information in this form is often apparent. Authority then attaches
to the appellee, for the court inevitably looks with confidence to him
for a statement of the issues involved and the doctrines which govern
them.
By and large, it would seem clear that everything else being equal,
the appellant, who has the first opportunity to present the problem
involved to the court, has something of an advantage. But such
abstract view must yield to the particular circumstances. If, for ex-
ample, the court absorbs an argument slowly, it often happens that
when the appellee's turn comes he is afforded the opportunity -to correct
the disjointed and mistaken impressions in the mind of the court, a
situation for which the appellant may in no way be responsible.
The situation on appeal is a good deal different from what it
is in a jury trial. In a jury trial the forces at work are less intellectual
and much more emotional. There it is of supreme advantage to have
the last speech. Many a defense counsel, having but a fragment of evi-
dence to present, has cast it aside and presented no testimony, in order,
under our practice, to have the last speech to the jury. I speak here of
advocates who do not distort the facts and who do not take unfair ad-
vantage of the last speech and of the inability of their opponent to
reply. In every case it is indubitable that the last impression on the
jury, if it be a good one, will have the deepest effect, and especially
is this true where the last address can be availed of to present not only
one's own view but also one's answer to all that one's opponent has
just said.
4. Know the Court.
The advocate must know the court before which he appears. He
must know the human condition of the judges who comprise the
court. From the reading of their opinions and from listening to their
comments at oral arguments it should be clear to him what manner
of men they are, what their views are generally and how they are likely
to react in particular situations. It is plain negligence for a lawyer
MAY 1956] ON ADVOCACY

to say in a case involving a will contest that the testator was obviously
of unsound mind because of his age, when one or more of the justices
listening to his argument have already passed that age. It would be
sheer blindness to appear before the Supreme Court of the United
States in a case involving an administrative order or a civil liberties
issue or a tax question without learning from their opinions where
the various justices have stood in the past on these questions.
It may sometimes unfortunately occur that as a result of knowing
the court to be prejudiced against his case, how closed he may think
the objectivity of some of its members. How then shall he approach
them? What is involved here is respect for the judicial process and
for the courts which are its instruments. Clearly the only answer to
the question must be that no matter how much the advocate may feel*
the court to be prejudiced against his case, how closed he may think
its mind will be, his only course is to throw all this aside when he
enters the courtroom and to present his argument in the deep con-
viction that somehow, in some way, it will be possible for him to break
through the wall of prejudice. If, in the course of argument, he is
beset with heated questions from the bench which betray more partisan-
ship than judicial objectivity, his course is equally clear. Manfully yet
respectfully he should maintain his position and in the extreme case,
if need be, reveal that he will not be driven off the high ground of
fairness in argument even under the lash of a partisan judge. -.For
this course there is no alternative. But it may be comforting to add
that a court-especially an appellate court-has more than one member
and that such conduct of an advocate under such provocation will
hardly fail to' find understanding and sympathy from other members
of the court.
5. Know the Facts.
It is not enough merely to know the court. Obviously, the ad-
vocate must know the facts of his own case. The facts should flow
readily from him, not because of any special fluency, but because they
are so familiar to him.. The court should not Wait impatiently while he
searches-at times with the audible assistance of a colleague-for some
fact lost in the pages of the record, or among his papers and notes.
In appellate cases, the main force of the argument normally must
be directed to the facts. The courts usually have a fair idea of the law,
however much individual judges may differ in learning and ability.
But what they know nothing of is the facts in the individual case before
them. Most of the problems of decision are not so much the deter-
mination of some new doctrine of law as they are the choice of the
 VILLANOVA LAW REVIEW [VOL. 1: p. 290

legal principle which is applicable to the particular facts. Hence,

the narration of the facts of the case is, perhaps, the greatest test of
the advocate's skill and merits much more attention and emphasis than
it usually finds in appellate argument. When the facts are clearly un-
folded and the justice of one side thereby stands revealed, it often fol-
lows almost inevitably that there is little difficulty regarding the ap-
plicable legal principle. Moreover, the concentration on the facts easily
wins the attention and interest of the court. Except for novel problems,
a discussion of the law tends to become a review of particular decisions.
The facts, however, because of the human interest which is always in-
volved in them and because of their novelty -and uniqueness in each
case, excite attention.
6. Know the Law.
The advocate, should know the law applicable to his case. The
wider and deeper his knowledge of the law, the more readily will he
be able to present it with brevity and clarity. Where particular prece-
dents are of significance, he will, of course, refer to them, even by
name. He may even read a line or two of a particularly apt quotation,
which will hammer into the mind of the court in unforgettable phrases
the essence of what he has to say. But he will carefully refrain from
burdening the court with the evidence of the law, which it is the func-
tion of his brief to establish. It is often possible to observe the obvious
pleasure of the court when an advocate clearly and briefly expresses
his view of the law which applies to the case and then graciously an-
nounces his determination to forbear from discussing the authorities
because they are all fully set out in his brief.
To say that the advocate should know the law applicable to his
case is not to speak of this or that decision in this or that volume of
the reports. It is not enough to know a procedent or a group of prece-
dents. The unceasing question the advocate must ask himself is,
"Does this decision accord with what seems right and sensible?" Just
as it is not enough to find a quotation from an opinion and treat it as
decisive even though it may be dictum, so, similarly, is it not enough for
an advocate to deal with decisions as isolated phenomena. The deci-
sions in his brief should be mere evidence at which he points in con-
firmation of a larger, more general rule which is the reflection of a just
system of law.
We all know the advocate who deals with decisions as if they were
paper dolls. Scissors are his weapon. Let there be a phrase which
seems pat for him, and out it will come from the opinion, torn from
its context without any regard for its surroundings. The quotation
MAY 1956] ON ADVOCACY

from the opinion he thinks of as an admission which bars the judge from
any other view, regardless of the differences in circumstances. Not
ratio decidendi, but estoppel, is what he searches for in the decisions.
It is dangerous business to rely so strongly on a precedent that
the advocate tenders it in the face of every consideration of justice or
common sense. It is even more dangerous to challenge a court to over-
rule its earlier decision. An interesting illustration of this arose some
years ago. Our Constitution' provides that "appointed officers may
be removed at the pleasure of the power by which they shall have been
appointed." The Supreme Court had decided that where the officers of
an agency were appointed by different officials, each officer was beyond
removal by the individual official who appointed him, and could only
be removed by the aggregate of all the appointing powers. 6 Ten years
later the same question arose again. Counsel who had lost the first
case in the Supreme Court appeared again, this time on the other side.
When his opponent had finished, he began his argument by saying
that ten years ago he had stood where his opponent now stood and had
argued what his opponent had just now argued, and the court had told
him ten years ago that he was wrong. He was now arguing the other
side-the side which the court ten years ago told him was right. Then
he exclaimed, "If I was wrong then, I must be right now. Your Hon-
ors can't say that when I argued ten years ago I was wrong and now
when I am saying what you told me was right that I am wrong again."
Yet this is exactly what the court did."
7. Questions by the Court.
Many lawyers fear questions by the court. The dread of the
unknown hovers over them. They fear that some unforeseen aspect
of the case will be revealed by the judge's question, an aspect which
will inevitably shut the door on their argument. In a more everyday
way, many lawyers are fearful of questions from the bench because
they cannot quite credit the notion that questions are only for enlighten-
ment and do not reveal the viewpoint of the judge. Every question,
therefore, is to them an expression of opinion. And this is so even
though the judge may surround the question with words of reassurance
that he is only thinking aloud and seeking enlightenment from the
advocate. Both these fears are, of course, at times justified. More
often than one would like, the so-called questions from the bench are
rather emphatic statements of position than inquiries for information.
5. PA. CONST. art. VI, § 4.
6. Corn. ex rel. Kelley v. Sheridan, 331 Pa. 415, 200 Ati. 102 (1938).
7. Corn. ex rel. Reinhardt v. Randall, 356 Pa. 302, 51 A.2d 751 (1947).
 VILLANOVA LAW REVIEW [VOL. 1: p. 290

More often too than the advocate would like, the greater perspective
which the judge enjoys, the fact that his mind is unencumbered by too
close an involvement in the case and oftentimes because of the superior
ability of the judge, his comment from the bench may reveal a new
aspect of the case completely disconcerting to the advocate.
All these are the risks which an advocate must be prepared to face.
Notwithstanding these burdens it is overwhelmingly clear that the
advocate should welcome questions from the court. What a magnificent
opportunity it affords to see into the working of the mind of the judge
whom he is seeking to persuade. The questions reveal what part of
his argument is having the greatest difficulty in winning acceptance.
It may even reveal where the mind of the judge has failed to compre-
hend what the advocate has been striving to convey. What would a
trial lawyer not give for the opportunity to have a jury ask him ques-
tions in the course of a trial or in the course of his summation and
then to be permitted to answer the juror's doubts or confusion.
So fearsome is the judge's question for many lawyers that even
where it affords a springboard for nailing down a point, lawyers fre-
quently shy away from facing up to an answer. They promise to an-
swer the question later or give assurance that it will be discussed as
their argument unfolds. This is poor advocacy. Its effects are some-
times even visible as the judge sinks back in his chair with an air of
frustration or weariness.
Questions from the bench should be answered at once. And they
should be answered directly and without equivocation. Where a ques-
tion requires an answer harmful to the advocate's contention, he should
courageously give the answer and acknowledge its effect. Where he
does not know the answer, he should graciously and frankly say so.
Nothing is more dramatic than an advocate's immediate and ef-
fective reply to a question from the bench. The advantage derived from
such an answer is so great that it is bound to outweigh the minor dis-
advantage of changing the course of the planned argument. Moreover,
duty requires the advocate, regardless of his own plan, to give all the
aid he can to the court; and there is no greater aid than the immediate
and responsive answer to the court's question.
The great value of questions from the bench can perhaps best
be described by recalling the opposite situation: Where an advocate
makes his entire argument uninterrupted by a single question from the
bench he leaves the courtroom without knowing whether his argument
has been understood, whether it has taken hold, whether the silence
of the court was a complete acceptance of his view or rather an indica-
MAY 1956] ON ADVOCACY

tion that his view was deemed so far-fetched that it was useless to
bother about it. Much better is it for the advocate to learn on the spot
the doubts of the court and to have the opportunity to answer them.
It is in answering questions from the bench that the clarity and
quickness of mind of the advocate, his capacity for dramatizing what
he has to say, his ability to act spontaneously, have their greatest
reward.

8. Know When to Stop.

It is remarkable how under the pressure of necessity the most im-
portant brief can be confined within a fixed number of pages and the
most elaborate oral argument can be restricted to the time limit set by
the court.
The more inexperienced the lawyer, the longer will be his brief.
The more inexperienced the advocate, the longer will be his argument.
Where the rules require that the brief be limited to a fixed number
of pages, it is interesting to observe how a first draft, which exceeds the
allotted length, can be reduced. Much heartache ensues. Well beloved
phrases, quotations which seemed the very words which would persuade
the court, all these fall before the inexorable and ruthless revision.
Then strangely enough when the brief is reread it is found far more
effective because of this heroically achieved compactness.
In oral argument there seems to be a psychological fear of coming
to grips with the main point. The tendency is to avoid the ultimate
issue and instead to approach the problem on its periphery instead of
its center. The better the advocate, the more quickly does he come to
the heart of the problem. The less able the advocate, the more does
he rotate on the circumference of the problem; and if he is ultimately
forced to the real issue it is only by degrees that he approaches from
the circumference to the center. It is at basis a fear of facing up to
the danger and risk of decision. It is this quality which is responsible
for so much of the unnecessary protraction of legal arguments.
Another element with some advocates is the apparent need to re-
peat their contention in a seeming effort to coerce a favorable decision
from the court then and there and an unwillingness to end the argument
until they have learned the ultimate decision.
The best form of advocacy is the vivid and concise description of
the facts and issues and the suggested conclusions and then with con-
fidence that the case has now been adequately explained and that the
burden of decision now rests with the court, to sit down.