In Professional Responsibility, we just covered Model Rule 3.4(e), which states in part, “A lawyer shall not . . . in trial . . . assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused . . .” I actually make it a point to mention this Rule in virtually every course I teach. I do so to counteract the common tendency among not only students but the general public to preface statements and arguments with, “I believe” or “I feel,” or as if it became more persuasive, “I strongly believe,” or “I really feel.”
Right on! When I judge moot court, whether trials or appellate arguments, students constantly express their arguments in terms of what they believe or feel. It drives me nuts. During the critique period, I ask them why they feel compelled to phrase their arguments this way, and I am invariably told that it’s because they “really, really believe it.”
Who cares? The advocates psycho-emotional state has no place in argument whatsoever. Forget the Model Rule. It’s totally unpersuasive. Everyone assumes that the lawyer for the appellant believes that the appellant’s position should prevail. This is not news. Not even the most strenuous, fervent expression of your personal feelings on the subject make it any more convincing.
Remember the classic line from A Few Good Men: I strenuously object. It was a joke, not a compelling argument.
And it’s not just law students who indulge in the fantasy that their personal convictions matter to others. Non-lawyers do it constantly, as if their personal beliefs provide a substitute for coherent reasoning. Of course, laypeople are forgiven, as they aren’t trained in the art of persuasion and, more importantly, aren’t responsible for someone else’s freedom. If they chose to make unavailing arguments, it doesn’t really matter since no one is paying any attention anyway. But lawyer do it as well. This is not good.
When a practicing lawyer, in the course of representation of a client, prefaces his argument with words that express a personal sense, he should be shot (metaphorically, not with real bullets, Jdog). This is inexcusable coming from someone entrusted with the interests of another person, and is about as rookie and ineffective as argument can get. Don’t think nobody notices. Why do you see the judge grimacing? Why do you think all the other lawyers in the courtroom have put their heads into their hands? Well, at least the competent lawyers. Why?
Mommy may have told you that your personal thoughts on every subject were fascinating, and to her they likely were. To the rest of us, not so much. In fact, not at all. If you’ve got reasons, state them. Whether you feel strongly about them adds no weight whatsoever. Reasons stand or fall on their own. What matter is whether the person deciding agrees with your reasons. It’s how they feel, not you.
There are, of course, matters that aren’t susceptible to rational argument. Which tastes better, chocolate or vanilla? If the judge asks your preference, it would be fully appropriate to say that you believe that vanilla tastes better. It’s unlikely that the judge will ask you this, unless she plans of tossing an ice cream party after the verdict, but it could happen. Aside from this situation, keep your feelings to yourself.
And as for Frank Wu, well done and keep it up. As for any lawprof who allows her students to express themselves in terms of their feelings and beliefs, law school would be the perfect time to clear up this problem, before they embarrass themselves in court or, worse still, blow an argument in front of a judge or jury.