Negotiation and the Art of Advocacy

Debbie Ferguson, in her recent article for World Economic Forum (WEF), stated that “[T]he most effective leaders all shared one trait: they were advocates for the people in their organizations. This was only possible because they listened to and understood each person so that they could advocate with confidence”. Through this article we want to put across some light on the art of advocacy, which is primarily thought to have been possessed by lawyers only.

None of the legal statutes defines the term “Advocacy”, it refers to the act of “pleading for or arguing in favour of something or actively supporting a cause”. Within the purview of the legal profession, advocates represent the interests of their clients in the best possible manner.

Aside from representing the interests of a client, another primary function of the advocate is to aid and assist the court in the administration of justice. Therefore, a lawyer’s argument and presentation of the case form an integral tool in his arsenal in the fight for justice and in upholding the rule of law. But often times courtroom arguments simply run high on the decibel scale and remain low on impact.

Persuasion Skills

Advocacy requires an effective presentation of one’s argument to be impactful – that is what makes it an art. Simply put, advocacy is a skill which involves presenting one’s argument succinctly and applying the subtle art of persuasion.

Justice Edward Abbot Party, in his book, ‘The Seven Lamps of Advocacy’ lists “eloquence” as one of the “lamps” of advocacy. He writes that while “there is no golden rule of method, there is this golden principle to remember that the message of eloquence is addressed to the heart rather than the brain.” He further states that there is a physical, as well as a psychological side to advocacy – the charm of voice and manner, has always received the due reward, and that the test of eloquence in advocacy is necessarily its effect upon those to whom it is addressed. Its aim is persuasion. 

Shakespeare’s Hamlet play highlights the importance of theatre and its power to influence. Hamlet is quoted to say that a lawyer must be able to play upon his jury, knowing the stops, and sounding them from the lowest note to the top of the compass.

Echoing the same, Mark Twain in his 1923 speech is known to have said, “No word was ever as effective as a rightly timed pause.” Advocacy skills cannot be gleaned in a classroom hub. As a craft, it must be honed on the job and on the grindstone of experience.

To understand advocacy skills, we delve into classical rhetoric and oratory skills which, during the rise of Greek democracy in the ancient city-states of Athens, came to be considered a high art that was studied closely and developed as an art form. 

The Three Pillars – Ethos, Pathos and Lagos

Noted Greek philosopher, Aristotle, in his treatise, ‘The Art of Rhetoric’, defines rhetoric as “the faculty of observing in any given case the available means of persuasion.” According to Aristotle, rhetoric can be applied through three means of persuasion - ethos, pathos and logos.

  • Ethos, meaning “character,” is a rhetorical or written technique that appeals to an audience or reader’s ethics. A speaker’s ethos consists of appearing knowledgeable and credible.
  • Pathos refers to making an emotional connection with the audience. Most times, between emotion and rationality, emotions hold sway and help make a persuasive impact on the audience. In a similar vein, Lord Chesterfield in his letters to his son wrote: “Gain the heart or you will gain nothing; the eyes and ears are the only roads to the heart. Merit and knowledge will not gain hearts, though will secure them when gained. Engage the eyes by your address, air and motions, soothe the ears by the elegancy and harmony of your diction; the heart will certainly follow and the whole man and woman will as certainly follow the heart.”
  • Logos refers to reason and rationality. While Aristotle espoused persuasion through reason alone, he acknowledged that when an audience is not learned enough to follow arguments based on logic, persuasive language clubbed with ethos and pathos was necessary to aid in persuasion. 

Summing up the role of the advocate, in his book, ‘The Art of Advocacy’, Alexander Whistler Street, SC, aptly says: “a litigator best assists in the administration of justice by providing skilled assistance through refined careful argument, clarity, reason and structure in grounds for the exercise of judicial power”.

Mr Street also outlines the importance of the art of advocacy as follows: “Where are the pearls in the art of advocacy? The pearls are found in the judicial reasons supporting the exercise of judicial power to quell the controversy.”

He goes on to say that the “advocate proffers assistance by diving into the detail of the dispute, distilling the morass of data into discrete focused topics developing the location of the relevant pearls by compelling rational argument that permit the judge to extract the right pearls of truth supported by sound reason and to then apply the scales of justice by application of legal principles in orders quelling the controversy.”

Be a Negotiator

A negotiator is a person who either comes to an agreement with someone else or one who helps other people reach such an agreement.

Debbie Ferguson in her WEF article also states, “When a person approaches you in need of support, a common instinct is to offer advice or try to fix it. Instead, start with a question: what kind of advocate do you want? How can I best support you? They may need you to listen, advise on a specific situation, or connect them to others.”

In conclusion, the art of advocacy should comprise a rhetorical style that hinges on a well-structured argument, facts of the case, logical analysis and reasoning.

Some essential qualities that are pivotal in becoming an A-list negotiator are personal integrity, ethics, sound oratory skills, good memory and patience.

Author: Varun Bhatia, Co-founder of 3NServe

Varun Bhatia
Also read top viewed Ai Legal article: The Role of AI in Legal Research.
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