Legal advice: pound the facts, the law, the table (variant 1911)

[Shapiro, Fred]

Note that the Oxford Dictionary of American Legal Quotations does have this aphorism (see page 11), although Garson does a characteristically great job of improving upon the earliest use mentioned in the ODALQ.

Fred Shapiro



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From: American Dialect Society [ADS-L at LISTSERV.UGA.EDU] On Behalf Of Garson O'Toole [adsgarsonotoole at GMAIL.COM]
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Subject: Legal advice: pound the facts, the law, the table (variant 1911)

There's an old legal aphorism that goes, "If you have the facts on
your side, pound the facts. If you have the law on your side, pound
the law. If you have neither on your side, pound the table."

Wikitionary contains the text above under an entry for "pound the table".

http://en.wiktionary.org/wiki/pound_the_table

The Oxford Dictionary of American Legal Quotations does not appear to
contain this evergreen advice on legal strategy. Versions are
attributed to Alan Dershowitz of Harvard, Jerome Michael of Columbia,
Jacob J. Rosenblum, and Oliver Wendell Holmes.

The earliest version I have found is dated 1911 and is rather prolix:

Cite: 1911, The Work of the Advocate: a Practical Treatise by Byron K.
Elliott and William F. Elliott, Second edition, Footnote 17, Page 390,
Bobbs-Merrill Company, Indianapolis, Indiana. (Google Books full view)

"If you have a case where the law is clearly on your side, but the
facts and justice seem to be against you," said an old lawyer to his
son, who was about to begin the practice of the law, "urge upon the
jury the vast importance of sustaining the law. On the other hand, if
the law is against you, or doubtful, and the facts show that your case
is founded in justice, insist that justice be done though the heavens
fall." "But," said the young man, "how shall I manage a case where
both the law and the facts are dead against me?" "In that case,"
replied the old lawyer, "talk around it," and "the worse it is, the
harder you pound the table," adds a modern commentator.

http://books.google.com/books?id=ZhY-AAAAIAAJ&q=heavens#v=snippet&

An 1894 edition of this work with a different title but similar
content does not contain a comparably placed footnote. Hence, the
quotation seems to be absent in the earlier edition.

There is a variant in 1925 where the lawyer is urged to attack the
opposing attorney instead of pounding the table.

Cite: 1925, The Rotarian, Among Our Letters: This War Business by W.
N. Fitzwater, Elkins, W. Va., Page 50, Rotary International. (Google
Books full view)

Such tactics have been compared to the story of a young lawyer who was
consulting an older lawyer as to how he should act in the conduct of
various cases.  He said, "What shall I do if the law is against me?"
The older man said, "Come out strong on the facts." "What shall I do
if the facts are against me?" "Come out strong on the law." "Then,
what shall I do if both are against me?" "Abuse the other fellow's
attorney." Of course, this is hardly indulged in by Rotarians, but it
is done in far too many cases that we have come across.

http://books.google.com/books?id=IkQEAAAAMBAJ&q=tactics#v=snippet&

There is a variant in 1934 that uses the modern format of three-fold
repetition. This quote uses hammer three times instead of pound.

Cite: 1934 September, The Golden Book Magazine, So They Say, Page 285,
Volume 20, Number 117, The Review of Reviews Corporation, New York.
(Google Books snippet view; Verified on paper)

Jacob J. Rosenblum on what every lawyer knows.

"The defense seems to have been prepared according to the old rules.
'If the facts are against you, hammer the law. If the law is against
you, hammer the facts. If the fact and the law are against you, hammer
opposing counsel.'"

http://books.google.com/books?id=_JcXAQAAIAAJ&

Garson

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