A review of Lincoln’s trial work offers lessons to be learned on being a trial lawyer
One of my prized possessions is a vintage glass snow globe that features a bust of Abraham Lincoln. It sits on my desk, and I look at it every day. Lincoln is my favorite historical figure.
Next month is the 152nd anniversary of Lincoln’s best known speech, the Gettysburg Address. At only 272 words, it’s also one of the shortest speeches ever delivered by an American President.
In an era when politicians are diametrically opposed to the belief that “less is more” it is hard to imagine such a short speech. Let’s face it, by today’s standard the speech is barely a Tweet.
Trial lawyers can learn a lot from Lincoln’s writing in that speech. It shows that brevity doesn’t diminish your purpose but enhances it. They can also learn a lot from Lincoln about their profession. Continue reading and you will learn things about Lincoln you never knew and receive some tips that will help your practice.
Abraham Lincoln, of course, is one of the mythical figures in American history. What you may not know is that he is also the nation’s most famous trial lawyer.
Ed Mannino, a nationally-known trial lawyer, historian and author, writes a blog about U.S. Law, History and Culture.
In September of 2012 Mannino wrote a blog about Lincoln with some eye-opening facts.
Mannino wrote that “Lincoln’s legal career began in 1836 and ended only after he was inaugurated in 1861. He was involved in over 5,500 cases at the trial level, had a large appellate practice in the Supreme Court of Illinois and appeared in six appeals in the Supreme Court of the United States, arguing one personally.”
Mannino reviewed Lincoln’s trial work and offered five tips for today’s trial lawyers from our greatest president, who first was a top trial lawyer. The observations are Mannino’s.
Prepare and be diligent.
Lincoln captured the importance of preparation memorably by stating “Give me six hours to chop down a tree, and I will spend the first four sharpening the axe.”
Use logic and detachment.
In his trial work, Lincoln favored the use of logic to advance the theme of his cases, rarely resorting to emotion or flowery rhetoric.
Develop the key facts, and let your theme emerge from them.
Lincoln would select the facts he perceived as the critical facts, and utilize only them in his presentation. With those facts as the base, he would let his theme emerge from them, and tie his argument to them.
Ignore small points.
Lincoln would typically concede points made by his adversary when he saw them as unimportant in the overall context of his case theme. His focus was always on that point or points which his diligent preparation had identified as the heart of the case.
In other words, don’t lengthen a trial by using a kitchen sink approach of dumping all the facts in front of the jury box. This only bores the jurors, obscures what is necessary to win your case, and unduly lengthens the trial.
Use simple language.
He used simple language, particularly at the end of his closing argument, where single-syllable words predominated. He said “shoot down low and the common people will understand you…shoot too high and your bullets will go over the heads of the masses, and only hit those who need no hitting.”
Judge Michael Stern
Los Angeles Superior Court Judge Michael Stern is a Lincoln scholar and historian, too. He wrote an article about Lincoln that appeared in the July issue of CAALA’s Advocate magazine.
Judge Stern wrote, “What can trial lawyers learn about cross-examining witnesses from an attorney who never went to law school and tried cases 150 years ago in rural courthouses for fees as low as $2.50? If that lawyer was Abraham Lincoln, much can be gained by reviewing his techniques.”
In the article, Judge Stern describes Lincoln’s cross-examination of a high-priced, complacent medical expert. My apologies to Panish, Alder or Dordick, but Lincoln destroyed arrogant defense experts long before you did.
Judge Stern wrote, “Lincoln’s case depended on the opinions of a well-recognized doctor whose testimony was known to be difficult to shake. After the doctor offered some impressive-sounding direct testimony, Lincoln slowly initiated his cross-examination with this question: ‘Doctor, how much are you to receive for testifying in this case?’ The witness asked the judge if he had to answer the question and the judge directed a response. The doctor stated a fee so high that it stole the jurors’ breaths. Lincoln then stood, pointed to the doctor and cried in a shrill voice with the hottest indignation ‘Gentlemen of the jury, big fee, big swear!’”
Judge Stern adds that “Those four monosyllables accusing the doctor of offering perjured testimony were all that Lincoln needed to sway the jury to his side.”
When today’s trial lawyers achieve a similar result on behalf of their injured clients, they can proudly point out their connection to Abraham Lincoln, trial lawyer.
Copyright © 2021 by the author.
For reprint permission, contact the publisher: Advocate Magazine