Advocacy as an Exercise in Virtue: Lawyering, Bad Facts, and Furman's High-Stakes Dilemma

Abstract

Two of the conversations benefiting most from Jack Sammons's scholarship are conversations about legal rhetoric and about virtue ethics. Legal rhetoric is the study of the conventions of legal argument, specifically, the art of identifying and evaluating the best available means of persuasion and implementing those means effectively in light of audience, purpose, and occasion. Virtue ethics approaches moral reflection by asking what sort of person a particular moral choice encourages the actor to become. It focuses on consequences to the moral agent herself rather than directly focusing on consequences to others. The goal is to become a virtuous person, that is, a person who possesses an integrated set of virtues enabling her "to live and act morally well." In the spirit of virtue ethics, this paper uses the primary defense brief in the consolidated cases known as Furman v. Georgia as an example of how good advocacy can help a lawyer practice virtue, particularly in what may be the most difficult brief-writing dilemma of all: dealing with bad facts.

Keywords: capital punsihment, death penalty, virtue ethics, Jack Sammons, Aikens