Scott Greenfield commenting on Prof. Margaret Jane Radin’s book “Boilerplate”. Radin has been a law professor for 37 years….
When it comes to lawyers, however, the right to opine crazy isn’t unlimited. Railing against the “tyranny” of small print is fine. We all hate it, and there are certainly substantial arguments to be made against click-wrap terms, which nobody reads, or the terms and conditions set forth inside packaging that no one sees until after a purchase is complete, the product opened and/or unreturnable.
But we do not have the right to conflate small print with corporations sucking away our constitutional rights or creating a new legal universe. That feeds the angst, the conspiracy theorists and the disenchanted, but it’s fundamentally wrong from a legal perspective, and there is simply no viable argument to support it. That’s where the line gets drawn.
Yet Radin wrote a book. Sullivan wrote about the book. And somewhere, sometime, someone may stumble across what they wrote and challenge it from centerfield at a Yankee game. And they will never make it to the seventh inning stretch. Small print may suck, but legally, its fine print unless the law otherwise prohibits it. You are not entitled to feel otherwise.
When it comes to advocacy there are certain rules that are mandatory and must be observed. The consequences of forgetting these rules or not giving them proper credence can be severe, so it is important to have a solid understanding of them.
First, it is best to avoid arguments and stick to the facts. This rule is not ambiguous; it means simply what it says. It can be particularly important when you are presenting an opening statement during a trial. Only during the closing argument are you allowed to argue and present the opportunity for factfinders to draw inferences. In the beginning, you will only be allowed to introduce evidence that is relevant and essentially tell the factfinders what it is that you hope to prove. Take great care speaking about anything you might be later prevented from proving. It might seem as though it would be limiting to be forced to stick to the facts, but that is not the case. You can still be creative and imaginative; creating a story that will draw in your factfinders and invite them to take the journey with you.
At the same time, you want to make sure you state enough facts to justify the verdict you will ask for.
As an advocate, you must never appear to be providing evidence on your own. Testimony must come from the witness stand–it must never come from you as the advocate of the client.
When it comes to your closing argument, only speak of things that have actually been touched upon in evidence. While you can certainly discuss any item that is common knowledge, e.g., you may refer to historical events and characters or to characters from television programs or literature. If, however, you wish to discuss anything else, you must make certain that you actually did prove it before you refer to it in the summation.