1/24/20: How to Make a Case
Rep. Adam Schiff and his team of House Managers at the Trump Impeachment Trial have received wide and rightful praise from Democrats, Republicans and the American public for the quality and effectiveness of their case presentation before the U.S. Senate and to the citizenry of our country.
This blog segment will not look at the hugely important civic and political implications of Schiff and his team’s work. This segment is written to laud the sheer skill and professionalism of their work, and what it can teach just about everyone when Schiff and company’s example is applied to our own work and lives.
I teach Ethics, which is a very subjective matter. I litigated cases at the Illinois Attorney Registration and Disciplinary Commission. Ethics and Professional Responsibility Law is the only area of the law which does not rely on precedent. Ethics law is subject to mitigating and aggravating circumstances which are considered, and the values of the panel which will determine the sanction to be applied or not applied to an accused attorney.
An impeachment trial more closely parallels an ethics hearing than a criminal or civil trial. So do most processes of decision applied in business, the professions and our personal lives.
This is not to say that an ethics hearing does not involve standards. When I first began teaching ethics I would rely on classroom discussion in response to various ethical quandaries. I learned experientially what I knew as an abstraction. All opinions are not created equal.
What makes a worthy decision or recommendation? What goes into being persuasive or wise when facing real world circumstances?
I have done ethics hearings and observed civil and criminal trials. I have sat on a dissertation committee and observed the mechanics of making an academic argument. I have coached and judged Business School case competitions, which mirror corporate group decision making processes. I have shared care-taking decisions with family members regarding a loved one suffering from dementia. I have spoken with medical doctors about their process when making a diagnosis. I have made, and observed others make, decisions to marry, apply to colleges , other schools, and for jobs, purchase automobiles, choose places to live … all the determinations of every day life.
The best judgments made in all areas of life seriously apply these qualities:
- and a sense of one’s values … ethics is applied morality.
I have noticed that a foundational process is universally used in good decision making. The day’s events have given us a sterling example of this process in action — the example of Adam Schiff and the House Managers.
Investigate the facts and organize them in a coherent manner — establish a narrative.
Schiff and his team have done this brilliantly with thoroughness and precision.
The facts earn you the right to raise issues related to the facts. You can’t identify questions, desires or problems until you have a mastery of “the facts on the ground.”
In this phase, critical thinking and creativity are employed to identify difficulties and opportunities.
Analyze the facts in light of the issues through the prism of higher level thought.
The best subjective point of view is made from an educated perspective. Schiff and his team analyze the facts through the perspectives of constitutional law, criminal law, various philosophies regarding ethics and governance and democracy, public policy, institutional knowledge, scholarship regarding U.S. intelligence practices and other learned modalities of thought. They apply their earned knowledge from their education and experiences, and they research and learn new knowledge that they need to more deeply understand the facts before them.
After completing your analysis make a determination regarding each issue.
In this phase, analysis is followed by critical thinking and creativity. Logic and imagination leads the decision maker to a next step to either resolve problems or progress. An old adage states, “In adversity lies opportunity.” Opportunity will only arrive when one person or a group does the work of this process.
Less worthy opining jumps to this step and disregards Steps One through Three.
Think of a radio call-in show where a quarterback or a politician is excoriated by a caller who knows nothing about the quarterback or politician, hasn’t therefore really identified any valid problems or opportunities with his or her performance, knows nothing about football or politics and just vents from the perspective of the caller’s bias or emotion.
Think of a college dormitory bull session where each friend shouts out his or her feeling with no knowledge, organization or coherence. Everyone might enjoy themselves, but nothing is resolved.
State WHY your decisions are important.
Adam Schiff did this brilliantly in his closing argument last night at the end of the managers’ presentation regarding the first of the two articles of impeachment. This is where the case-maker has earned the right to frame his decisions or recommendations in the light of personal and/or shared values.
Issues related to relevant facts analyzed though the prism of higher thought having led to determinations, and recommendations, lay the ground for discovered or affirmed meaning.
Case-making is really life-making. Life has no meaning. We bring meaning to it. And the steps laid out here is how we make meaning when we do so effectively.
Eventually you have to repeat the process.
Facts change. Modes of reasoning evolves. Knowledge constantly expands …
and sometimes even the most exemplary case making leads to harmful results, and hard experience demands that you revisit your case and begin again. That’s life.
I want to emphasize here that I am not diminishing the value of intuition here in any way. When I was investigating and researching cases as a litigator I often started with a hunch or feeling. Then I would do the detailed and hard work of investigation and research.
As a creative writer today, and in my past incarnation as a theatrical improviser I started with a feeling, but the creative process led me to conscious experience and awareness which invariably transformed my concrete piece into something more.
I believe I have boiled this process down to its essential simplicity, but reading this blog segment will not lead to a mastery of case-making skills. Ultimately, those skills are learned like any other skills. You have to work at them repeatedly and with humility. You have to observe your own work and hone your abilities.
You also can never rest on your laurels. As with any other endeavor, if you make a great case today, it does not give you a guarantee of excellence tomorrow.
And you can always get better. Adam Schiff is a great lawyer, but I am sure that he surpassed all of his past achievements last night. His closing argument was like pitching a perfect game in the World Series.
I teach at the intersection of ethics, reason and creativity. If you are interested please contact me:
Richard Thomas JD, LLC Ethical Presence TM Consulting
1000 E. 53rd St. Unit 405, Chicago, Illinois 60615
Copyright 2020 Richard Thomas