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November 2008
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An idle thought

I figure there’s nothing like gross over-generalization to stir up some comment and debate. So here goes.

There are two things that most litigators should know how to do: fight and persuade.

Fighting is not the same as persuading. In fact, some things that are effective in a fight are ineffective, even counterproductive, when the task is to persuade.

There is a time to fight, and there is a time to persuade.

A major source of failure to persuade is the lawyer’s failure to recognize the difference between fighting and persuading, between what is effective in a fight and what is effective in persuading, between the time to fight and the time to persuade.


Counting Each Shot: The FTD Version

Here is an article of mine, recently published in the November 2008 issue of For the Defense. The title is Counting Each Shot: Techniques for Emphasis and De-emphasis. The lesson is how to use the structure of a written piece to play up or play down the facts.

This article started out as a blog post. From there, it evolved into a short article for the DRI Appellate Advocacy Committee newsletter, Certworthy, Summer 2007 issue. Now it’s become a longer article for FTD’s larger audience. I guess this is an example of how blogging can help a writer record an idea when it happens, and later develop the idea into something suitable for paper publication.