The lynchpin of effective advocacy is persuasion, which can come in many forms. Capitalizing on the disclosure provided by the opposing party can be one of the most important jobs of any advocate in persuading a jury. Oftentimes, trial attorneys focus only on the facts that are actually contained within the opposition’s records. While it is unquestionably true that such a focus might, at times, prove fruitful (especially where such a record lists or spells out facts harmful to the opposition), focusing solely on those facts will, at other times, limit or prevent the most powerful arguments from ever being made.
Weaknesses in the opposition’s case are often not readily apparent in the facts contained in their own record. After all, the opposition created the record in the first place, and there is often a reluctance to include harmful facts. Nevertheless, powerful and persuasive weaknesses might well be found in what those very records do not say, but, indeed, should say. It is the job of the trial attorney to demonstrate to the jury the importance and significance of any omissions in the opposing party’s records.
