With great sadness I read of the death of advocacy in these pages on Dec. 23rd. Derrick Morales was given 40 minutes for his final argument including 20 seconds for rebuttal. Apparently he uttered a few words over the critical time limit and was held in criminal contempt for “obstructing the administration of justice…” Contempt is usually a toxic stain on a lawyer’s reputation, but in this case, it is more the red badge of courage .
The incomparable Darrow argued to a judge for 12 hours over three days to save Leopold and Loeb from the hangman. But the modern, efficient, time-pressed judge no longer sees any value in extended lawyer advocacy. The art is slowly fading away being replaced by technology.
John Paul Stryker wrote a book on trial advocacy which he subtitled “a plea for the renaissance of the trial lawyer.” In 1954. Instead of a new flowering of eloquence, we are suffering the black death of silence. No longer is advocacy welcomed in our trial courts. It is treated as an unnecessary waste of time or now, a crime worthy of condemnation and punishment.
I have a lot of empathy. I was once granted an entire three minutes by the Eleventh Circuit. And in another case, an undistinguished federal judge in northern Indiana declared a recess in the middle of my final argument, ordering the marshals to quickly shelter the jury from my words. I’m not sure if my argument was too good or too bad. At least I avoided imprisonment.
Why is there a time limit placed on final argument? Too persuasive? Too dramatic? Or too pedestrian? We are trial lawyers; we go to war with words. We have the verbal confidence to stand on our feet, articulate the facts, and marshal our arguments. We are able to speak with passion in a way that inspires people. The final argument is our primary weapon.
I don’t know what Derrick Morales said in those last few minutes of overtime but I picture it as Salman Rushdie did: “Language is courage; the ability to conceive a thought, to speak it, and by doing so, to make it true.”