Commentator’s Response to J. Goodwin \u27Norms of Advocacy\u27

Professor Goodwin makes a case for the normative complexity of advocacy. She makes this case in the contexts of courtroom advocacy and advocacy in the public relations industry. I am going to examine that conclusion by reference to one of her two chosen case studies – courtroom advocacy. I am also going to agree with her conclusion that courtroom advocacy is normatively complex, although I will part company with her on a few points. Goodwin has argued that the activity of arguing in court is normatively structured, in the sense that it is more than just persuasion, it is certainly not neutral, and it is both good and bad. I agree. I do not, however, view as puzzling the different treatments of advocacy that Goodwin finds in the communications and the informal logic disciplines. One views argument as useful and positive, while the other views it as deserving a healthy dollop of suspicion and as something against which we need to arm ourselves. In a courtroom argument in a civil case with a judge as the trier of fact and law the judge can be aided by the lawyers’ advocacy or, potentially, put on the wrong track by it. She can stay on the right rack due to her own professional training and experience, but this is just one of several constraints that keep the argument content and process in check and that limit the amount of discounting the judge is required to do. My aim in this Commentary is to explore other key constraints that shape and limit arguments in the civil advocacy sphere. These constraints are set by law, procedural rules, and ethics. I will restrict my comments to the constraints imposed by rules of ethics, thus taking the same approach that Professor Goodwin has taken