Gallavin on Litigation: Litigator as Artist

by Dr Chris Gallavin

The litigator as artist – a rather bold title that is sure to endear me to litigators while inducing a cough or choke in those of you who have the happy/necessary/tedious/begrudging pleasure (circle applicable) to work with or alongside the said litigator[s].

The litigator ego is large enough you may say, without me proclaiming them to be artists. That said, I do think there are a number of parallels between the litigator and artist that are worth pursuing, at least for the benefit of the young litigator if not the artist. Much is often said about the litigator as a story teller and it is within this narrow context of particular skill that I would like here to focus my attention. There is more than meets the eye in the skill of story-telling, let alone the array of other skills in which a litigator must be proficient. I want to focus on the artist analogy via the following two points. The first I will refer to as the “over-egg” phenomena. The second, “finding your own voice”.

The ‘over-egg’ phenomena

The attributes of a good case theory are often said to be clarity, simplicity, engagement with as much of the evidence as is possible, and believability. In order to devise a good case theory a litigator must, I believe, understand the human condition in much the same way as a painter, writer, sculptor or even a dancer. Not only does litigation deal with the real – real people, real emotions, real materials, real consequences – but it does so in the parameters of the unreal – truth, standards of proof, counter perspectives, conflicting facts, unclear evidence. With this in mind there are two very real dangers that may arise at the stage of formulating a case theory, the first being the conspiracy theory and the second, the over-working of a component of a theory. Both of these dangers come within the notion of the “over-egg” phenomena. 

A conspiracy theory can be defined as the formulation of a theory insufficiently supported by evidence. As tantalising and interesting as such theories are, they must be avoided in litigation irrespective of whether you believe them to be true or not. The overworking of an element of a theory is to be avoided for many of the same reasons although the overworking of a fact can have a more insidious effect upon an otherwise measured and robust theory. Much the same as in the art world, to over-egg an argument is to overwork a piece in part or whole to a point of artificiality (this latter point being something I overheard a clearly “arty” couple say at an exhibition I stumbled upon last week).

This phenomena will often arise where a litigator, whether he or she be a prosecutor, or counsel for defence, plaintiff or respondent, has become so bound with their case that they fail to see where savings in a theory can and should be made or mistake believability for being clever. One need not spell out absolutely everything every time in every case – to do so may introduce an element of the unbelievable into a case theory ultimately undermining chances of success. Is it necessary, you ought to ask, to provide an explanation of every aspect of a case or is the point made despite or perhaps because of the ambiguity in what happened at a particular moment?

At the risk of sounding utterly pretentious, it was Mies van der Rohe who stated that ‘less is more’ and while not talking about the art of litigation Mies’ line is often, I feel, of equal application to litigation. To use the work of the German Bauhaus movement as an analogy: litigation is utilitarian – functional while not altogether unpleasant to the eye. In short, masters know when not to speak. 

Finding your own voice

The key to success for any artist begins with finding their own voice. Few artists can wear the glory of having ushered in a new era in their specific field. Whether it be performing or fine arts one can identify clear delineations in the development of influential movements throughout history. Within this there are always individuals who are described as being “before their time”, “boundary setters”, or “boundary destroyers”. However, for the vast majority of artists their “voice” will often mirror or borrow from the voice of such innovators. There is absolutely nothing wrong with that. Whether one is Francis Bacon setting the parameters of a brave new world, or a proponent of a particular style in which fine works have been produced and exhibited, the fact remains that to be a great artist you must find your own voice. I suggest that the same applies to the litigator.

As an orator, a litigator must quite literally find their “voice”. This may take quite some time – the journey for which may only effectively begin after university study has been completed. But how on earth does one find their voice? To continue with the gratuitous use of clichés, imitation is the best form of flattery. We all need mentors and must never think that we have finished learning. For young litigators in particular the effect of a mentor may be exponentially great. Not only can they guide and instruct but they can provide a model for replication. Finding one’s own voice often involves the task of imitation, modification and finally personalising the style of others. Like a second-hand suit – with a nip and tuck here and there one may never know that it was previously owned by anyone but you. So, the litigator as artist – a bold title but an analogy that I believe is there to be made. 

Dr Chris Gallavin is an Associate Professor and Dean of Law at Canterbury University. He has published extensively on criminal justice and on evidence and procedure in particular. He is the author of the appellant handbook, Evidence(LexisNexis, Wellington, 2008), and regularly undertakes consultant work in the area of the law of evidence.

 

This article was originally published in LawTalk 826, 30 August 2013, page 19.