Sunday, September 17, 2023

Being an Effective Advocate

I recently received a phone call, unsolicited, from an advocate, seeking assistance; we'll call him "Jim," with sincere apologies to everyone out there actually named Jim. Jim's dispute likely had nothing to do with Worker’s Compensation, and at least purportedly centered on a labor dispute.

Jim's issue was thousands of miles from me, and yet Jim seemingly chose me (I later learned that was false and Jim was contacting whomever could be reached). Jim's approach was filled with invective and venom, the tone was acrimonious and accusatory, and the effect was utterly offputting (ineffective).

The call made me think about the least effective methodologies for seeking assistance. It reminded me of the potential for ignorance and confusion among those who would be advocates. In litigation, advocacy is the goal and the role. What is the advocate's role? If you are offending and abrasive, can you be persuasive? Maybe.

However, advocates would do well to remember to maintain focus on their goal. Facts are helpful, the law is helpful, and circumstances can even be helpful. Name-calling and invective, not so much. Anger? Almost never helpful.

Jim started from a foundation of ignorance. My name had been found on some list or document, and assumptions had been made. Bad ones. Jim thought I possessed some superpower or influence. That was a mistake at best. Jim was prepossessed with recruiting me to be an advocate for some cause. I am not an advocate, and I do not take up such causes. In fact, the Code of Judicial Conduct says I cannot advocate for your cause. I cannot "lend the prestige of judicial office to advance the private interests of the judge or others."

Jim did not understand that. Worse, somewhere along the line, Jim lost the capability to listen. Rather than process what was said, Jim chose to rely upon persistence, insults, and bullying. To be fair, those work in some settings. But not so much in others.

Jim chose, in seeking my support, to engage in name-calling, accusation, and emotion. Those accusations undoubtedly held some great value for Jim. However, Jim was seemingly incapable of comprehending that anyone might harbor a different perspective on facts or circumstances. Jim's worldview was stunted and constrained, and it did not further his interests.

Hint for the advocate, righteous indignation, insults, and invective are unlikely to facilitate productive communication. Admittedly, there may be a place for each in a particular conversation. Notably, it is unlikely that that place is at the beginning.

Jim wanted me to adopt his worldview, unsolicited, and unproven. Jim encouraged me to join his cause, take his side, and advocate on his behalf. He was confident that my role as a judge would lend credence to my advocacy on his behalf. He was as confident in his demeanor as he was inappropriate in his requests and language.

Jim was eager for advocacy. But, in retrospect, I wonder if he would have appreciated or sought my involvement in opposition to his position, goal, and outcome? I suspect not. It is likely that Jim would have been apoplectic and worse if some judge had taken the opposite side in his dispute. I did not raise that hypothetical with Jim, as convincing as it might have been with a rational person. I did not raise it, because Jim was not rational, reasonable, or even listening.

Therein lies the fallacy of Jim's call. His emotionally charged and illogical approach was unlikely to ever move his cause with any rational listener. His unwillingness to listen was going to prevent Jim from ever gleaning knowledge or better understanding. His approach was insulting, bullying, and ineffective.

I am glad that this call was an anomaly in my life. I am sorry for the litany of people who also had to endure contact with this fussy, illogical, and emotional Jim. In his approach and immaturity, however, lie lessons for the advocate.

First, be calm and collected when making an argument. Emotional, insulting, threatening tone, demeanor, or words will not be likely to move your issue.

Second, listen. That is not so hard. Listen. Someone might tell you something that could aid your comprehension. Someone might say something you can use.

Third, be careful with repetition. If you have a powerful fact, then there is perhaps power in repetition. If you have an accusation that lacks specificity or fact, repeating it incessantly will not be as likely to persuade.

Fourth, bring data. The litigation system is about disputes. To persuade and prevail, advocates must bring proof. This will rarely be your recitation of what someone told someone that they heard from someone. If triple hearsay is all you have, use it. But be wary that triple hearsay is not likely to get you home.

Fifth, be respectful. Always. The best lawyers I have ever seen responded to resistance, anger, or confrontation with calm. One I recall was so controlled that he persistently reacted with a softer voice, a slower cadence, and increased respect. I watched him eviscerate witnesses with that approach. They never seemed to realize how he had charmed them and used them. That lawyer won frequently. Not through anger and invective, but the opposite.

What a waste of time. Jim wasted my time and his own. He expended great emotion, slung allegations (irrelevancies), and repeated suggestions and innuendo. And he accomplished nothing. Perhaps he felt better; he may have expended his anger. Hopefully, his frustration with me softened his approach and impact on his next victim.

Advocacy has been referred to as an art. Those who would make a living from their art must practice it, hone it, and master it. That can be through reason and study, or through the difficult pathway of many mistakes, failures, and hard lessons. As you move to master your art, you choose your path. Choose wisely.

Go make all the mistakes yourself. Or, learn from Jim's mistakes and save yourself some heartache.