Can I… Should I… Dogwhistles, and Don’ts


This Fall I helped conduct a trial advocacy training in a major metropolitan city on the East Coast.  It’s a training I’ve helped with off and on for over a decade, an advanced training geared toward lawyers who already have courtroom experience.  We were using the same NITA file we’d used for years.  Many of the faculty were the same as they have been over the years, but something different happened this year that gave me pause.

Lawyers disparaged foreigners, not for the merits of the actions they took or choices they made, but simply for being from another country.

The file we use pits a fictional US video game designer against a hypothetical British toy company.  The case involves a contract dispute regarding distribution of a new video game system across Europe.  It’s a great file, especially for a contract case.  It provides for use of emotional themes, permits a deep dive into damages calculations, and has good balance between the plaintiff and defense.  It’s a case that can be won on the advocacy.  It needn’t be won on bias.

Nonetheless, in a morning session focusing on speeches, one participant chose the theme that her client was the AMERICAN company.  Through her verbal punctuation and repetition of the word American and throughout the speech, it was clear that was, in fact, her theme.  Her sheepish grin at the feedback about her choice of that as her theme, confirmed it was an intentional choice, one specifically chosen to resonate with biases against anyone who doesn’t put America first.

Later that same day one of the trainers demonstrated a closing argument. He made fun of a line in the file where the British CEO makes reference to something as not being worth a farthing.  With a sneer and just a touch of a fake accent, the person demonstrating the speech denigrated the CEO for their funny, foreign phrase.  He wasn’t touching on the merits of the case.  He was implying that the CEO’s position had less merit, because the CEO didn’t speak like we do.

Hearing both speeches on the same day and hearing the case argued with an edge I hadn’t heard used in over a decade of listening lawyers for “Cranbrooke” fight with lawyers for “Intellex” made me wonder about the state of our profession.  Courtrooms can reflect the modern ethos.  But should they reverberate our lesser instincts?

Whether courts do so is up to the lawyers who practice in them.  Choices we make at trial are driven by those two familiar, central questions.  Can I do that?  Should I?   Often those decisions are based on the case theory or on what the rules of evidence will permit, but the calculation needn’t end there.  A lawyer’s job is to persuade.  A lawyer’s job is to fight for their client; but, maybe our profession owes something to society, too.  I could quote you ethical standards,[1] but this isn’t an appeal to the ethics of the bar so much as to the humanity of the barrister.

You can argue the twinkie defense,[2] but maybe you don’t have to.  You can imply that someone has less worth because they are an immigrant, or foreign, or because of the color of their skin, but maybe we shouldn’t.  Where we are as a profession can reflect where our culture is at this moment, but perhaps, as attorneys, we should strive to reflect what the character of country should be.


[1] The Preamble to the Model Rules of Professional Conduct notes: “[5] A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.….” Rule 8.4, the rule on misconduct, goes on to note, “It is professional misconduct for a lawyer to:… (g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.”

[2] In 1979 Dan White was tried for assassinating for San Francisco Mayor, George Moscone, and city Supervisor, Harvey Milk, the first openly LGBT person elected to US office. At trial , defense lawyers successfully argued White’s diminished capacity, due to a change in diet from healthy to unhealthy foods.  This defense was popularized in the press at the time as the “twinkie defense.”  White was convicted at trial of voluntary manslaughter, rather than first degree murder.