Advocacy leverages the need for interpretation in a variety of ways. For example, we develop a theme and theory in order to provide a favorable context to the evidence. We use primacy and recency, preempt our opponents arguments and counter-arguments, shift emphasis to favorable facts and away from unfavorable ones, extract from witnesses information that advances our preferred interpretation of events, and use techniques of persuasion to influence the way jurors perceive.
If we possess but do not use these skills, are we in breach of our ethical duty to our client? If I am an experienced, well-educated advocate capable of crafting an argument that glosses past its flaws in a way that I am certain the unsophisticated, in-experienced (i.e. slow-witted) opposing counsel is likely to miss and so have no effective response to, am I being “unfair,” or am I serving my client? Am I committing malpractice if I tell opposing counsel or the court about the weaknesses of my client’s case?
So, while trial by court gives some weight to the facts, we still have the trial by combat issue of having outcomes altered or even determined by skill rather than objective concepts of justice.
The "Paradox of Skill" states that greater levels of skill among the participants in a competition increases the degree to which “luck” affects the outcome. In the attorneys' case, "luck" may be having the facts and law on your side--in short, the more equally skilled the attorneys, the more likely the trial has a “just” outcome. So, once all attorneys can bring to bear the techniques of Strategy, the system will tend more toward justice. Since these are techniques are already in use by some intuitively strategic counsel, by publicizing them, my book actually levels the playing field against the intuitively gifted rather than creating unfairness.
I hope some of you post thoughts on this topic—Should we stop teaching advocacy? Should the Bar require trial attorneys be proficient in Advocacy and Strategy before entering the well? Should we say that some currently ethical techniques are unethical? How do we deal with the unfairness created by an adversarial system that allows outcomes to be swayed by attorneys of unequal skill?