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Book review: "Moe Levine on Advocacy"

By Rodney R. Nordstrom Consisting of Moe Levine's most memorable lectures and summations, a  new book, Moe Levine on Advocacy, offers everything the reader expects.  Don Keenan does an excellent job in the forward to motivate the reader to read more of the book. Specifically, Keenan divides Levine's (1908 -1974) trial advocacy skills into five main points: mastery of the understatement, appeal to each audience's uniqueness, appeal to jurors' spirituality, elevation of jury's consciousness of the community and challenging jurors to make the "right" decision. These five cardinal points summarize Levine's smooth approach to effective summation. Since beginning my career as a trial consultant, I have studied Levine's  style of advocacy. I am constantly looking for methods to teach other attorneys how to effectively synthesize a case into a simple case theme. The most cited illustration of Levine's theme development was during a final argument lasting less than two minutes: "I need not call any army of experts and parade before you countless medical professionals to illustrate this boy's loss. I need only tell you that I had lunch with him today, and he ate his food like a dog." Levine's style is simple, direct and profound for showing the client's catastrophic injury. His penchant for developing a concise case theme and communicating it to jurors is remarkable. A careful reading of Levine reveals his subtle use of pre-hypnotic suggestion; for example, "you're going to find out about it ..., and will you wait until you've heard the evidence ..., and you may have said to yourself ..., when you are finished with your analysis of the case, you will have to consider ..., what I would like you to think about is ..., in your subconscious, you must be thinking ..., I was thinking to myself that ..., your minds during this trial have been stretched ..., I know you remember, and I remember too ..., let me describe what will happen when you retire to the jury room." These illustrations show how he implants the seed of what he wants jurors to think. Levine's use of these pre-hypnotic suggestions and embedded commands reminds me of the techniques used by world-renowned psychiatrist and hypnotist Milton Erickson. Throughout the book, Levine discusses the difference between sympathy and charity. He tells jurors that he is not interested in sympathy for his client as it is a form of charity, and charity is demeaning to the client's injury. "If I were to attempt to appeal to your sympathy or emotion, not only would my arguments be rejected, but I would be humiliated." He also uses the Bible to communicate his points. For example, the loss of the enjoyment of living is described in Ecclesiastes where it says it is right and good that when a man has finished this day's labor, he shall enjoy living. Another important component of Levine's style of advocacy is that he does not discuss what the defendant's negligence caused his client to lose but rather what the client is now left with. For example, "if a man with 20/20 vision has an accident and is left with 20/40 vision, you have taken his 20/20 vision from him. But you've left him 20/40 and he has good function with 20/40. On the other hand, if you take a man with 20/200 vision, who barely sees light and you blind him, you've left him with nothing." This reframe is subtle, but powerful. In another example, Levine poses to the jury, "suppose you had a million dollars, and I took five hundred thousand dollars away. I would have taken a great deal of money from you but I would have left you with a half million dollars. As you still have a half million dollars, you are not left broke. On the other hand, suppose you had one dollar, and that dollar is taken from you. You now have nothing." In yet another example, he states that in the darkest night the smallest candle makes the darkness tolerable. "You blow out the candle, and you are left with the abysmal fear of blackness: no light left. You have taken it all." Another main component of his style of advocacy is that he elevates the jurors as the voice of the community. "Your decision does not speak merely for yourself but speaks for community justice." Levine wants to highlight to the jury that they are no longer twelve individuals "but now are judges without robes." Matching the presentation of the case to the age of the advocate and juror is also important to Levine. His arguments are designed so that if you have graying hair and are over age 60, age appropriate arguments help the jury perceive you as a paternal figure. Levine was adroit at adjusting his presentation style to fit the ages and experiences of the jury. He was careful to avoid being overly presumptuous about describing everyday life experiences. The last half of the book deals with summations for specific topics; damages for burns, psychological damages, death of an alcoholic, damages for a second injury, and a double amputation case. These specific chapters were taken from seminars given to various trial organizations in the 60s and 70s. It should be noted that the book does not discuss any application to criminal trials. Therefore, this book is geared to the civil attorney. Moe's love of medicine; his prolific readings in religion, philosophy, and literature; and his profound understanding of the human condition with all of its hardships are present in his book. After thirty-five years, his popularity is still significant as he was one of the most successful trial lawyers and sought lecturers of his time on trial technique. Even though his other books are out of print, they command as much as $1,000 per copy. One internet poster states he will pay any "reasonable amount" for a copy of Levine's books. If the reader is interested, there is a 1966 audio recording of his summation at www.trialguides.com. A collection of Levine's summations is also available on CD from the publisher. The Levine book is published by Trial Guides and costs $135.00. Rodney R. Nordstrom, Ph.D., J.D. is a trial consultant and has assisted more than 60 ITLA members with case preparation and presentation. His company is Litigation Simulation Services, www.litsim.com.
Posted on July 16, 2009 by Chris Bonjean
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