Saturday, October 13, 2012
Legal writing professors teach their students that audience is an important consideration when writing or speaking. What might be an appropriate tone for one audience might not be an appropriate tone for another. For example, an advocate should never interrupt his or her opponent when arguing in front of an appellate panel, but interrupting is common before a trial judge. (I think that lawyers should be careful with interruptions even in a trial court.)
On Thursday night, Vice-President Biden employed a very aggressive tone and body language in his debate with Paul Ryan. In praising Biden's performance, one of Biden's supporters, Matt Taibbi, declared, "Biden did absolutely roll his eyes, snort, laugh derisively and throw his hands up in the air whenever Ryan trotted out his little beady-eyed BS-isms." Commentators both praised and criticized Biden's performance. On one hand, Taibbi wrote, "What he got absolutely right, despite what you might read this morning, (many outlets are criticizing Biden's dramatic excesses), was his tone. . . . He was absolutely right to be doing it." On the other hand, Chris Wallace stated, "I have ever seen a debate in which one participant was as openly disrespectful of the other as Biden was to Paul Ryan tonight."
The point of this post is not to praise or criticize Biden's performance; that is for the American people--Biden's audience. Rather, I am using the debate to demonstrate the importance of audience.
The tone and body language that Biden used in the debate would (absolutely) not have been appropriate when arguing before appellate judges. When arguing before such a court, an attorney should be polite, respectful of his opposing counsel, and never interrupt his opposing counsel. An advocate should sit quietly while his opponent is arguing.
One semester during oral arguments, a student of mine rolled his eyes and shook his head throughout his opponent's presentation. I graded him down severely for doing this. A few weeks later, he called me to say that he had seen attorneys in court do exactly what I had graded him down for. I first asked him whether this was an appellate court. He said no. I added that just because he had seen other attorneys do something did not mean that it was a best practice. Several judges have told me that they disliked this behavior, even in a trial court. In other words, the attorneys my student had seen had not considered their audience--the judge.
Again, I am not evaluating what Biden did at the debate. Rather, I think the debate illustrates how important it is for attorneys to consider audience.