We know that popular entertainments give a distorted picture of how real lawyers work. But these distortions sometimes can turn our attention to important aspects of lawyering we too often ignore. I think Episode 2 of the AMC’s new series Better Call Saul gives us a master class in the mechanics of the lawyerly art of persuasion. Here is a link to the episode. You need only watch the first 30 minutes. http://www.amctv.com/shows/better-call-saul/episodes/season-1/mijo
At the beginning of the episode Saul (Bob Odenkirk) finds himself in something of a pickle. A drug dealer is planning to kill him and his two confederates, the Lindholm twins. Saul hired the twins to fake a hit and run on someone else, but things went awry and the twins ended up accosting the drug dealer’s elderly grandmother. He wants revenge against them, and when he discovers Saul’s connection, against Saul too. He plans to kill all three. Saul has to convince him otherwise. It’s a novel form of a death penalty case.
Let’s look at how Saul presents his argument. First, he attempts to save himself. He argues that he is an innocent young lawyer who meant the grandmother no harm. It was just a case of mistaken identity. Furthermore, the grandmother suffered no physical harm. This story has the advantage of being true, but the disadvantage of not being persuasive to the man planning to kill him.
Saul quickly switches gear. Sensing the drug dealer suspects him of being a police officer, Saul now admits that he is an FBI agent and that’s why it would be foolhardy to kill him; the agency will hunt the killer down. But this argument also fails because Saul is unable to provide enough factual detail to make it credible. So Saul returns to the “innocent lawyer” argument, and finds that now it has traction, not because Saul is innocent, but because his captor fears killing a lawyer will attract the attention of the police. Saul has talked his way out of death. He is free to go.
But Saul refuses to leave his confederates to their fate. They are minor criminals that nobody will miss, and therefore the “I am a lawyer” argument will not help them. So Saul searches for a winning argument in their case. First, he tries to persuade the drug dealer to let them go since no harm came to his grandmother. But the dealer rejects this argument because they insulted the grandmother, a woman whom he reveres.
So Saul again changes strategies. He no longer speaks of the twins; instead he asks the dealer to contemplate how their deaths will affect their mother, a woman Saul does not know, but whom he describes in a way that makes her strongly resemble the drug dealer’s own grandmother.
Here is a story the drug dealer can relate to. Out of respect for the feelings of their mother, he decides not to kill them. Still they have insulted his grandmother, so he believes there must be some punishment. He suggests cutting out their tongues.
Saul quickly changes direction again. He no longer argues that the twins should escape punishment, only that the punishment should fit the crime. He even cites the Code of Hamurrabi (a text I doubt he has read) as authority to back up his point. The drug dealer should be firm, but fair.
This idea appeals to the drug dealer. “Like a judge.” Again Saul has found the right story. The image of himself as a judge flatters the drug dealer. He will exact some lesser punishment. At this point a bizarre plea bargain takes place. Saul suggests giving each twin a black eye, a punishment the “judge” finds too lenient. The drug dealer slowly moves down from breaking both arms and both legs of each offender to breaking one leg of each. This is a harsh punishment, but much less harsh than death.
I suggest here we have a parable of the art of persuasion. The lawyer searches to find the right story to tell power in order to get the best possible result for his client. Sometimes the truth is persuasive (“I am a lawyer and I will be missed”); other times “truths” have to be fabricated (“think of their mother”). The one untruth that must be avoided is the one that will be found out (“I am an FBI agent”).
In the book Guile is Good I propose an image of the lawyer that is closer to that of a screenwriter than a scientist. (https://guileisgood.com/guile-is-good-the-book) Lawyers are storytellers, but storytellers who do more than entertain. They are storytellers with a purpose. The purpose is to persuade the listener to act in a certain way. And Saul Goodman shows himself a gifted storyteller, able to find the right story for the situation presented.
I am not offering Saul as a hero we should emulate in all aspects of his practice. It turns out that Saul has some “character” issues. Hiring the twins to pull off the “hit and run” is just one example. The first four episodes of Better Call Saul find Saul Goodman (whose real name turns out to be Jimmy McGill ) often trolling in the dark waters of ethical impropriety. But that’s an issue for a future post.
For now let’s celebrate how Saul’s imagination and ingenuity transformed what could easily have been a triple murder into a drive to the emergency room to set two broken legs. His confederates may disagree, but Saul knows that from an advocate’s perspective he has had a very good day.