Anaya Nolan
The legal profession is a complex and fascinating field, with many well-known adages and strategies for success. One of the most famous quotes about legal strategy is often attributed to Carl Sandburg, a Chicago poet and journalist: If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell. This quote highlights the importance of adapting one's argumentation style to the strengths and weaknesses of their case. However, it is important to note that there are boundaries to what lawyers are allowed to argue in court, and they must adhere to specific rules and procedures to ensure fair and just outcomes for all involved.
| Characteristics | Values |
|---|---|
| Originator | Carl Sandburg, a Chicago poet and journalist |
| First appearance | In Sandburg's 1936 book-length poem, "The People, Yes" |
| Variations | "If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell." |
| "If you have the law, hammer the law. If you have the facts, hammer the facts. If you have neither the law nor the facts, hammer the table." | |
| "If the facts are against you, hammer the law. If the law is against you, hammer the facts. If the fact and the law are against you, hammer opposing counsel." | |
| "When the facts are on your side, pound the facts. When the law is on your side, pound the law. When neither is on your side, pound the table." | |
| "If the facts are on your side, pound the facts. If the law is on your side, pound the law. If neither is on your side, pound the table." | |
| "If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell." | |
| "When you have the facts on your side, argue the facts. When you have the law on your side, argue the law. When you have neither, holler." | |
| "If the judge is with you, argue the facts. If the judge is against you, argue the law." | |
| Application | Used as a strategy for successfully defending cases |
| Used as advice for lawyers | |
| Used in civil trial arguments |
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What You'll Learn
If the facts are against you, argue the law
The saying, "If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell," is often attributed to Chicago poet and journalist Carl Sandburg. The adage is a piece of advice for lawyers, instructing them on how to navigate a case depending on whether the facts or the law are in their favour.
If the facts of a case are unfavourable, a lawyer might choose to focus their argument on the law instead. This could involve citing specific laws, regulations, or legal theories that support their client's position. They might also attempt to discredit or downplay the opposing side's factual evidence, or argue that it should not be admissible in court. For example, a lawyer might argue that certain evidence was obtained illegally and therefore cannot be used against their client.
Alternatively, if the law is not on their side, a lawyer might choose to emphasise the facts that support their client's case and attempt to discredit or cast doubt on the opposing side's legal arguments. This could involve presenting alternative interpretations of the law or citing legal precedents that support their client's position.
In some cases, a lawyer might find themselves in a position where neither the facts nor the law are in their favour. In such situations, they might resort to more aggressive or dramatic tactics, such as pounding the table or raising their voice, as suggested by Sandburg. However, it is important to note that simply "yelling like hell" is not a viable legal strategy and may be counterproductive. Instead, a lawyer might focus on the presentation and delivery of their argument, the use of persuasive language, or the appeal to emotional responses from the judge or jury.
The effectiveness of these strategies may also depend on the judge overseeing the case. University of Alabama professor Joseph L. Smith examined administrative law opinions to test Sandburg's advice. He found that judges believed cases decided on facts were less likely to be reviewed by higher courts and, therefore, saw these cases as opportunities to indulge their policy goals. Thus, when the facts are against you, arguing the law may be more effective with certain judges.
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If the law is against you, argue the facts
The saying "If the law is against you, argue the facts" is part of a longer quote by Carl Sandburg, a Chicago poet and journalist: "If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell." The quote has been used to offer advice to lawyers and has been shared by Harvard Law School professor Alan Dershowitz and Columbia professor Jerome Michael.
The quote essentially suggests that if the law is not on your side, you should focus on the facts of the case and present them in a way that supports your argument. This strategy can be particularly effective when dealing with results-oriented judges, as a strong factual record leaves less room for the judge to interpret the facts in a way that aligns with their policy goals.
However, it is important to note that there are certain legal proceedings and standards that lawyers must adhere to when presenting their arguments in a courtroom. For example, in civil trial arguments, lawyers are advised to avoid invoking the Golden Rule by asking the jury to "put themselves in the client's shoes," as this is considered improper and can lead to a mistrial. Instead, civil trial cases should be argued based on universal and unprejudiced provable facts rather than emotions.
By focusing on the facts and presenting them in a compelling and logical manner, lawyers can attempt to sway the outcome of a case in their favour, even if the law is not on their side. This strategy highlights the importance of a strong factual foundation and effective advocacy skills in legal arguments.
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If neither are on your side, pound the table
The saying "If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table" is a well-known piece of advice for lawyers, often attributed to the Chicago poet and journalist Carl Sandburg. The adage is thought to have originated with Columbia Law School professor Jerome Michael, who taught a course in appellate advocacy. The saying suggests that if neither the facts nor the law are on your side, the only option is to create a distraction, such as by pounding the table or yelling. This strategy is meant to divert attention away from the weaknesses of one's argument and towards a more emotional or dramatic display.
Harvard Law School professor Alan Dershowitz is known to share a similar strategy with his students: "If the facts are on your side, pound the facts into the table. If the law is on your side, pound the law into the table. If neither the facts nor the law are on your side, pound the table." Dershowitz's advice highlights the importance of leveraging whatever advantages you have in a legal argument. If you have strong facts, emphasize them; if you have a solid legal argument, focus on that. However, if you lack both factual and legal support, creating a distraction may be seen as a last resort.
The effectiveness of pounding the table when neither the facts nor the law are on your side can be questioned. While it may temporarily shift the focus, it does not address the underlying weaknesses of the argument. In legal proceedings, it is crucial to present factual and logical arguments to support your case. Emotional or unprovable statements can be objected to by opposing counsel and may even result in a mistrial. Therefore, while pounding the table may be a tactic to consider, it should not be relied upon as a substitute for a well-constructed argument based on facts and legal principles.
The saying "If neither are on your side, pound the table" also highlights the importance of adaptability in legal arguments. It suggests that lawyers should be prepared to shift their focus depending on the strengths and weaknesses of their case. By recognizing which aspects of their argument are most favourable, lawyers can emphasize these points and potentially influence the outcome. However, it is essential to maintain ethical standards and not mislead or manipulate the jury with unfounded statements.
In conclusion, the phrase "If neither are on your side, pound the table" is a strategic piece of advice for lawyers, encouraging them to adapt their arguments and create distractions when necessary. However, it is important to remember that legal proceedings have specific guidelines and boundaries that must be followed. While pounding the table may be a tactic to consider, it should be used with caution and supplemented with a strong factual and legal foundation.
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Don't address the jury from whatever angle you like
Courtrooms are places of fact and logic. Lawyers are not allowed to address the jury from any angle they like. If they make emotional or unprovable statements, they could sway the jury in unreasonable directions, which is unfair and unjust for everyone involved. For example, asking the jury to "put yourself in my client's shoes" is considered invoking the "Golden Rule", an argument that is improper and can lead to a mistrial. Civil trial cases are intended to be argued based on universal and unprejudiced provable facts rather than emotions.
There are certain legal proceedings for how evidence can be gathered and used to make a case, and there are also certain ways lawyers inside a courtroom are allowed to present their arguments. When it comes to civil trial arguments, there are four questions or statements that lawyers are supposed to stay away from, including asking the jury to "put yourself in my client's shoes" and stating that a client's damages are worth a calculable per diem amount.
However, there is an old adage that says, "If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell." This quote, often attributed to Carl Sandburg, a Chicago poet and journalist, suggests that lawyers should focus on the facts or the law, depending on which is more favourable to their case. If neither is favourable, they should focus on distracting or discrediting the opposition.
Another variation of this adage is: "If you have the law, hammer the law. If you have the facts, hammer the facts. If you have neither the law nor the facts, hammer the table." This version emphasizes the idea of "hammering" or "pounding" the table if one has neither the facts nor the law on their side. It suggests that in the absence of a strong legal or factual position, one should focus on creating a distraction or disrupting the proceedings.
In practice, this strategy may involve developing a sound factual record, especially when faced with a results-oriented judge. By presenting a strong factual case, one reduces the opportunities for the judge to shade the facts and rule against them.
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Avoid asking the jury to put yourself in my client's shoes
The "Golden Rule", which originates from the Bible, is a strategy used in law to argue a case when the facts and the law are against you. The saying goes: "If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table".
However, the "Golden Rule" is not to be used by counsel to ask or urge the jurors to place themselves in the position of one of the parties in the litigation. This is because it appeals to sympathy and passion, and jurors are then asked to decide the case from a biased position in favour of a party, rather than an impartial standpoint.
Asking the jury to put themselves in the client's shoes can be considered a violation, as it has the potential to "poison the minds of the jurors". A curative instruction by the court may not rectify the situation, and a mistrial may have to be called.
It is important for lawyers to strike a balance between putting themselves in their client's shoes and remaining a detached expert who can give objective advice.
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Frequently asked questions
"You can't argue the law" is a saying that means when the facts are not on your side, argue the law. If neither the facts nor the law are on your side, pound the table.
The saying is often attributed to Carl Sandburg, an American poet and journalist. However, it has also been attributed to others, including Alan Dershowitz, a Harvard Law School professor, and Jerome Michael, a Columbia Law School professor.
There are certain arguments that lawyers are not allowed to make in court. For example, asking the jury to "put yourself in the client's shoes" is considered improper and can lead to a mistrial.
No, a per diem calculation cannot be used to determine compensation in a personal injury case. This is because it is impossible to justly determine a finite amount.
No, contrary to popular belief, lawyers are not allowed to make any statements they want in court. Courtrooms are meant to be places of fact and logic, and emotional or unprovable statements can sway the jury unreasonably.
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