by Kathryn A. Sampson

Synthesis creates synergy between all elements of a client's legal and factual argument. A striking illustration of the power of synthesis appears in Clarence Darrow's defense of himself.⁽¹⁾ One of his biographers has observed, "[i]t was arguably the most brilliant speech he ever made. It soared, it uplifted, it entranced: a tour de force admired by friends and enemies alike."⁽²⁾ In Darrow's speech, the arguments that looked dangerous to his defense attorney "ran together and worked for him; he had synthesized them and made the whole greater than its parts."⁽³⁾

This comment analyzes how those lawyers who have not yet attained folk-hero status can weave adverse facts and authority into the client's affirmative case, to also create a whole that is greater than its parts.⁽⁴⁾ It describes the process of synthesis and provides two arguments on opposing sides of a conclusion.⁽⁵⁾ The goal is to provide a complete argument, a seamless web into which adverse authority all but disappears into the affirmative case.

This analysis assumes all parties have cases with merit and attorneys who can shape legal rules. It does not focus on the "truly bad case" which deserves to lose.⁽⁶⁾ Nonetheless, even the case with merit will be faced with authority that does not patently serve the client's position. In light of our ethical rules, it is necessary to acknowledge the presence of such authority.⁽⁷⁾

However, the legal synthesizer recognizes that the authority, and the rule it represents, is malleable. Direct, unblinking treatment of facially adverse authority is part of the shaping of that rule. The fruit of this process is a rule imbued with credibility, making it much more likely a court will accept the rule's formulation. In the process, the advocate considers all facts, even "bad" ones presented by the client's situation, preparing him to better justify the application of that rule to reach a result in the client's favor.

Both worthy sides to a legal dispute can, and should, use synthesis to accomplish legitimate advocacy goals. The basis for credible advocacy is the very ability to synthesize law and fact taught in the law school lawyering skills and written advocacy course work; intramural and intercollegiate advocacy competitions; and in Socratic method case studies, with compounding hypotheticals, that appear in the law school lecture hall.

To the extent the law school lessons are taught by academics, who are no longer under the pressures practicing lawyers daily face, the "synthesis" skills themselves may seem academic, put to their best use while one is still insulated in the ivory tower.⁽⁸⁾ In this regard, efforts have been made to bridge theory and practice. An active attorney recently published a theoretical discussion on the substance of legal argumentation.⁽⁹⁾ Appellate judges also have published advice on how to craft the winning brief.⁽¹⁰⁾ Moreover, trial lawyers have recognized synthesis as an essential part of good lawyering; their literature reflect themes that appear in the present discussion.⁽¹¹⁾

The work of the trial advocate and the work of the brief writer are one and the same: "storyteller, teacher, and persuader [who] analyzes the available raw information to see whether . . . a potential fact picture . . . will fit a legal rule with consequences favorable to the client."⁽¹²⁾ The trial advocate takes "into account the opponent's anticipated presentation [and] chooses from among the potential scenarios the version that (1) fits the rule favoring the interests of the client and (2) would likely be accepted by the finders of fact."⁽¹³⁾

Written advocacy also has among its purposes to (1) shape the rule to favor the client's interests and (2) demonstrate how the result sought, in light of the client's facts, is consistent with rationales that support the rule. The process of shaping that rule is the focus in the following description of synthesis.

Moving to the Illustrations

A familiar method of confronting adverse authority is to distinguish a case "on its facts." Scores of fact-specific cases are decided under the law of private nuisance, undue influence, fraud, search and seizure, "best interests of the child," and scope of employment, to name a few examples. The following illustrations focus on cases decided under scope of employment analysis.

Facts: A common carrier was drinking on the job and deviating from her employer's orders when an accident occurred, when the employee attempted to cross some railroad tracks, while carrying a passenger.⁽¹⁴⁾ Before the accident, the employee had driven outside her prescribed territory; however, she was operating a company vehicle during her regular shift hours. The employee was killed and the plaintiff was seriously injured, after the employee ignored rules of the road and her employer's specific orders about how and where to conduct the employer's business. The plaintiff sued the employer, alleging respondeat superior liability. The case proceeded to the close of trial, and a directed verdict motion, in a circuit court.

Both in arguments to the trial court, and later in the event of an appeal, the attorneys must familiarize themselves with a body of Arkansas case law which is nearly evenly split on the question of whether an employee was operating "within the scope of employment" when s/he committed a tortious act. A sampling of these decisions is collected and discussed below, five decided in the plaintiff's favor and five in the defendant's favor.

Step 1: State the client's goals with reference to the applicable legal standard.
 

Plaintiff: Get this case to a jury. Defendant's respondeat superior liability hinges on a factual finding the employee acted "within the scope of her employment" when this plaintiff was injured. Establish substantial evidence of a connection between the employment and the employee's actions. Minimize impact of the intentional nature of a drunk driving accident.

Defendant: Get this case dismissed, before it goes to the jury. Demonstrate that, as a matter of law, this employee was not acting "within the scope of her employment" when the accident occurred. Minimize impact of accident taking place while employee was acting as a taxi driver in defendant's vehicle.

Step 2: Separate case readings by procedural results or advocacy points.
 

Plaintiff's Cases: Gordon v. Planters & Merchants Bancshares, Inc. (1996) (reversing defendant's directed verdict); J.B. Hunt Transport, Inc. v. Doss (1995) (plaintiff's judgment affirmed); Razorback Cab of Fort Smith, Inc. v. Lingo (1991) ("scope of employment" is a jury question); Life & Cas. Ins. Co. of Tennessee v. Padgett (1966) (substantial evidence defendant's employee harmed plaintiff within scope of employment); Wood v. Central Arkansas Milk Producers Ass'n (1961) (judgment for plaintiff affirmed).

Defendant's Cases: Porter v. Harshfield (1997) (defendant's summary judgment affirmed); St. Paul Fire & Marine Ins. Co. v. Knight (1989) (plaintiff's jury verdict reversed); Orkin Exterminating Co. v. Wheeling Pipeline, Inc. (1978) (plaintiff's judgment reversed); Reserve Life Ins. Co. v. Hall (1969) (plaintiff's judgment reversed); Hurley Pickett Lake Farms, Inc. v. Sullivan (1968) (defendant's verdict affirmed).

Step 3. Develop a detailed understanding of the case law.
 

Writers will use an approach that fits their individual thinking and learning styles, to analyze the interplay between case facts, holdings and rationales. Writers may brief cases, create topical grids, highlight or write on copies of decisions, draft flow charts, make points on index cards, or use some combination of several methods. A case briefing method and a topical grid method are illustrated below.

Method A: A case briefing method.

This section contains two of the 10 briefs that formed the basis for arguments that appear at the Step 5 discussion. Summaries of all 10 cases appear at Step 2.

Plaintiff's case:

J.B. Hunt Transport, Inc. v. Doss (1995)

Procedure: plaintiff's jury verdict affirmed.

Rule: "whether the individual is carrying out the 'object and purpose of the enterprise,' as opposed to acting exclusively in his own interest."

Facts/rationale: truck involved was owned by employer/defendant; tortfeasor was employed by the employer/defendant, wearing employer's uniform, and using "discretion" under company policy on how to conduct a twelve-hour, 600-mile drive to make a delivery for the employer.

Employee failed Breathalyzer test, but company held liable for punitive damages on point, because drinking establishes wanton behavior. Court rejected defendant arguments that a marital dispute established the employee was "engaged in a personal endeavor solely for his own benefit and not for the benefit of the employer."

Compare: (Plaintiff) Drinking on the job can establish wanton behavior that will subject the employer to punitive damages. While drinking is a personal endeavor, the act of driving the cab was for employer's benefit the instant the cab driver took on the plaintiff as a fare. (Defendant) Doss is distinguishable because the employee was exercising independent discretion entrusted to him by his employer at the time he engaged in the intentional tort. The employer gave the employee more discretion in Doss than our employer gave its cab driver.

Defendant's case:

Reserve Life Ins. Co. v. Hall (1969)

Procedure: judgment for plaintiff reversed and dismissed

Rule: when an employee is engaged in performing services for his employer, the employer is liable for his actions until the servant turns aside from the master's business.

Where the tort is the result of an independent act, not connected to his master's business, the relation of master and servant is suspended.

Facts/rationale: Employee on her lunch hour made a bank deposit for her employer, had lunch, and escorted her son home. Plaintiff could not establish substantial evidence the employee was acting within the scope of her employment.

Compare: (Plaintiff). Clear personal mission is the factor that makes this case favor the defendant. However, in our case, employment is in a mobile unit to start with. Common carrier liability, as a matter of policy, is different from other types of respondeat superior liability.

(Defendant) Focus on how personal objective takes this case out of respondeat superior liability. As in Orkin, the Hall court declined to give conclusive weight to physical circumstantial evidence suggesting the employee was acting on her employer's behalf.

Method B: A topical grid⁽¹⁵⁾ method.

This grid sets out a thumbnail sketch of a plaintiff's decision, a defendant's decision, and a decision that looks like a draw. This approach can produce a grid that covers several categories. The grid should expand both horizontally and vertically as research and analysis gets closer to completion.

Scope of Employment, Arkansas (2000)	Procedural posture	Employee Discretion	Employer Uniform, Equipment	Employee's activity "unexpected" or "expectable"
Porter (1997)	summary judgment affirmed DEFENDANT			sexual assault UNEXPECTED no liability
Gordon (1996)	directed verdict reversed PLAINTIFF	employee "doing his job" in an irresponsible way		court found employee was operating within employer's parameters EXPECTABLE potential liability
Razorback Cab (1991)	jury award for plaintiff reversed and remanded	not analyzed	altercation took place outside of company vehicle, just outside; court said location was not dispositive	recognizing logical connection between employment and employee's actions

Step 4: Identify recurring themes and state them according to advocacy perspective.
 

Plaintiff themes: broad analysis of "purpose of the enterprise" to cover use of employer's position, equipment, uniform, to execute personal motives (Gordon) (J.B. Hunt); broad analysis of "expectability" in view of the duties of the employee (Padgett); some articulative connection between the employee's tort and the purposes of the employer's business (Wood, Razorback Cab)

Defendant themes: narrow analysis of "working on the job and "operating within company authorization" (J.B. Hunt, Doss, Gordon); broad analysis of "unexpectability" (Porter, Knight); narrow analysis of connection between employee's activities and employment duties (Razorback Cab, Wood); broad analysis of "purely personal" activity (Orkin, Hall, Hurley Pickett).

Step 5: Develop the synthesis, melding adverse authority into the affirmative case.
 

A. Plaintiff's Argument:

This court should allow the jury to consider respondeat superior liability, because the plaintiff has produced substantial evidence a connection exists between the employee's accident and the purposes of the employer's business.

The focus for respondeat superior analysis is on whether the employee carried out "the object and purpose of the enterprise" at the time of the accident. Razorback Cab of Ft. Smith, Inc. v. Lingo, 304 Ark. 323, 327, 802 S.W.2d 444, 446 (1991). To assess "object and purpose," the court does not require a focus on whether "the means employed in furthering such interests were misguided." Id. Thus, the court has recognized a jury question exists on the respondeat superior theory, even where evidence shows the employee lacked professionalism, or care, in executing his duties. Id. (jury question where driver struck passenger who refused to stop smoking in cab); Life & Cas. Ins. Co. of Tennessee v. Padgett, 241 Ark. 353, 356, 407 S.W.2d 728, 730 (1966) (jury question where insurance agent struck customer after an argument regarding insurance premiums); Hurley Pickett Lake Farms, Inc. v. Sullivan, 245 Ark. 709, 718, 434 S.W.2d 88, 93 (1968) (affirming jury verdict in favor of employer where employee set fire to wasp's nest next to employer's business, burning both the nest and the building).

The court has extended this principle to cases where the employee had a personally vindictive reason for committing the tort. See Gordon v. Planters & Merchants Bancshares, Inc., 326 Ark. 1046, 935 S.W.2d 544 (1996) (jury question where bank's employee had "personal pecuniary interest" in charging back a check); J.B. Hunt Transport, Inc. v. Doss, 320 Ark. 660, 662, 899 S.W.2d 464, 466 (1995) (jury question where employee used employer's tractor trailer to collide with automobile driven by employee's ex-wife).

Only when "not by any stretch of the imagination" could an employee have been acting within the scope of his duties will the court firmly conclude a jury question does not exist. See Porter v. Harshfield, 329 Ark. 130, 137, 948 S.W.2d 83, 86 (1997) (sexual assault by radiology technician during gallbladder ultrasound); compare St. Paul Fire & Marine Ins. Co. v. Knight, 297 Ark. 555, 560-62, 764 S.W.2d 601, 604-05 (reversing and dismissing plaintiff's jury verdict where employee sexually assaulted plaintiff).

Substantial evidence exists that the plaintiff was injured when the defendant's employee was operating a company vehicle, and when the defendant's employee was engaging in activities commonly associated with the objects and purposes of a taxi-cab company. Specifically, defendant's employee took on a fare and prepared to deliver plaintiff to plaintiff's destination. Those employment-related activities continued up to the time of the accident in question.

Even though evidence shows defendant's employee deviated from her employer's specific directives, such deviations do not, as a matter of law, take this case out of respondeat superior liability. Rather, the jury may properly consider such deviations when assessing whether the employee was carrying out the object and purpose of the defendant employer's enterprise. The focus is whether the employee was acting in furtherance of the employer's business, not on whether "the particular act is unauthorized or even contrary to express instructions." Wood v. Central Ark. Milk Prod. Ass'n, 233 Ark. 958, 959, 349 S.W.2d 811, 812 (1961) (affirming plaintiff's judgment where employee damaged plaintiff's vehicle even though defendant "had instructed [its employees] not to attempt to drive [plaintiff's] trucks").

The court has demonstrated the focus is whether the plaintiff has produced substantial evidence the employee "engaged in any business on behalf of his employer at the time of the accident in question." Orkin Exterminating Co. v. Wheeling Pipeline, Inc., 263 Ark. 711, 716, 567 S.W.2d 117, 119-20 (1998) (concluding plaintiff failed to produce substantial evidence employee returned to work activities after engaging in a personal excursion); Reserve Life Ins. Co. v. Hall, 246 Ark. 186, 189-90, 437 S.W.2d 226, 228 (1969) (concluding plaintiff failed to produce substantial evidence employee's use of a personal vehicle, to make deposit for employer and to take child home from school, was focused on employer's enterprise).

Moreover, the court has demonstrated that an employer directive, or implied rules of businesslike conduct, which an employee ignores while pursuing the employer's business, will not insulate the employer from respondeat superior liability. See e.g., these decisions where the court held a jury could consider the respondeat superior theory: Wood, 233 Ark. at 959, 349 S.W.2d at 812 (service station employee violated express directive employees not drive plaintiff's vehicles); Padgett, 241 Ark. at 356, 407 S.W.2d at 730 (insurance agent beat customer with a piece of firewood); J.B. Hunt, 320 Ark. at 662, 899 S.W.2d at 466 (company driver hit ex-wife's vehicle with employer's semi-truck); Razorback Cab, 304 Ark. at 327, 802 S.W.2d at 446 (taxi driver struck passenger in dispute over smoking and cab fare); Gordon, 326 Ark. at 1058, 935 S.W.2d at 551 (bank officer, in response to personal indebtedness by check payee, "charged back" check after it had "cleared").

In this case, the employee had admittedly violated her company's drinking policy, had moved outside her prescribed territory, and had violated rules of the road at the time of the accident. However, these factors are for the jury to consider, because these factors do not, as a matter of law, take this case out of respondeat superior liability.

B. Defendant's Argument:

This case does not present one of those narrow circumstances where the court has been willing to impose respondeat superior liability; thus, as a matter of law, this court should grant a directed verdict to the employer.

The Arkansas Supreme Court has been willing to hold an employer liable for the intentional torts of its employees in two very narrow situations: (1) where the employee exercised independent discretion entrusted to him by his/her employer when he engaged in the intentional tort, J.B. Hunt Transport, Inc. v. Doss, 320 Ark. 660, 899 S.W.2d 464 (1995) (employer liability for injuries to employee's wife inflicted by encounter during long-haul trucking assignment); (2) where the employee's intentional tort had an inherently logical connection to the employer's type of business. Gordon v. Planters & Merchants Bancshares, Inc., 326 Ark. 1046, 935 S.W.2d 544 (1996) (holding bank liable when bank employee "charged back" a check); Life and Cas. Ins. Co. of Tennessee v. Padgett, 241 Ark. 353, 407 S.W.2d 728 (1966) (affirming plaintiff's verdict where agent struck a customer after an argument regarding customer's insurance premium payments).

The common features these decisions share is that the employee was working "on the job," operating within a zone of discretion, but committing a tort that was "expectable" in some way. In stark contrast to expectable results of an employee's activities are those cases where the court has held, as a matter of law, no jury question could be raised. See Porter v. Harshfield, 329 Ark. 130, 948 S.W.2d 83 (1997) (sexual assault); St. Paul Fire & Marine Ins. Co. v. Knight, 297 Ark. 555, 764 S.W.2d 601 (1989) (same).

Applying these principles, this court should determine, as a matter of law, the employee was acting outside the scope of her employment and not allow this case to go to the jury. This employee was not exercising discretion the employer had entrusted to her when she caused this accident. Moreover, she violated two company directives: 1) do not drink on the job, and 2) drive in only those areas to which you are assigned. Her decision to attempt to outrun a train at a railroad crossing was not a decision "inherently logically connected" to the employer's type of business, which is to move passengers safely from one point to the next. Thus, this driver's actions were as unexpectable as the actions of the employees in the Porter and Knight decisions, where the court held, as a matter of law, that unexpectable employee acts were outside the scope of employment.

Even under a negligence theory, Arkansas law clearly supports granting of a directed verdict in this case. Of five collected Arkansas decisions in which an employee caused an accident while he was ostensibly acting in the employer's interests, but while he was deviating from his employer's express instructions, three soundly hold that respondeat superior liability does not attach. See Orkin Exterminating Co. v. Wheeling Pipeline, Inc., 263 Ark. 711, 567 S.W.2d 117 (1978) (no liability where employee caused injury after engaging in personal visit that took him away from his service route); Reserve Life Ins. Co. v. Hall, 246 Ark. 186, 437 S.W.2d 226 (1969) (no liability where bank's bookkeeper collided with plaintiff while en route to her son's school after making bank deposit for employer); Hurley Pickett Lake Farms, Inc. v. Sullivan, 245 Ark. 709, 434 S.W.2d 88 (1968) (no liability where employee started maintenance fire near company's building while he was on company break time).

Moreover, unlike the present case, the other two decisions involved employee activities that had some logical connection to the employer's business. See Razorback Cab of Fort Smith, Inc. v. Lingo, 304 Ark. 323, 802 S.W.2d 444 (1991); Wood v. Central Arkansas Milk Producers Ass'n, 233 Ark. 958, 349 S.W.2d 811 (1961). Both Razorback Cab and Wood are distinguishable because they involved employees who took actions that were logically consistent with the objects and purposes of the employer's business.

In Razorback Cab, an employee/sub-contractor leased a taxicab from defendant. The employee/sub-contractor picked up fares who had been drinking and who lit cigarettes in the cab. When another passenger asked them not to smoke, and one of the smokers refused, an argument developed between the driver and a smoking passenger. The driver stopped the cab, got out with the passenger, and argued about the fare. The cab driver struck the passenger during this argument. The passenger sued the cab company. The court found a strong connection between the employment and the employee's tort, recognizing that the "underlying purpose" of the cab driver's actions "was the comfort and welfare of other passengers, a purpose entirely consistent with the [employer's] interests." Razorback Cab, 304 Ark. at 327, 802 S.W.2d at 446.

Likewise, in Wood, the defendant's employee drove one of plaintiff's vehicles to be serviced by defendant's service station; en route, defendant's employee damaged plaintiff's vehicle. The court held the defendant could be held liable, even though the defendant "had instructed [its employees] not to attempt to drive the [plaintiff's] trucks." Wood, 233 Ark. at 959, 349 S.W.2d at 812. The court held the deviation from company policy had an inherent connection to the objects and purposes of the employer's business, because the defendant's employee collected plaintiff's vehicle for service at defendant's filling station. Id.

While both Wood and Razorback Cab illustrate the type of employee actions that bear a logical relation to the enterprise's purposes and objectives, no logical connection exists between drinking on the job and attempting to outrun a train on the one hand, and carrying out of the job of a taxi-cab driver, on the other.

Step 6: Reflect on the process.

The process of synthesis reflected in these examples, and in the introduction that precedes them, consumed several days of drafting, revising, and editing time. With regard to the argument examples, the directed verdict procedural posture assumes much has already taken place in the litigation. The clarity of legal and factual synthesis will sharpen at progressive stages in pleading, motion practice, and discovery. By the time evidence has been presented at trial and counsel are sharpening their arguments on directed verdict, counsel will have benefitted from several reviews of the same facts and legal authority, resulting in increasingly sharpened clarity about how those facts and legal authority intersect. An appellate brief will be enhanced and clarified by the preceding efforts.

As for Clarence Darrow's synthesis in defense of himself, the factual synthesis had simmered for several months, and many of the policies he had used in this synthesis evolved over his lifetime. Since the incident that led to the bribery trial (November 28, 1911), Darrow had pondered the most damning facts. He continued to ponder them through his indictment, prosecution, and trial, before he worked with his defense attorney "[a]lmost the entire night . . . until dawn was breaking."⁽¹⁶⁾ Thus, while Darrow's words flowed smoothly on the day of his speech in self-defense (August 14, 1912), those words were the product of review and reflection that took place over time.

In sum, the process of synthesis and the process of writing are works in progress, just as this discussion appears at a fixed point in an ongoing process. Counsel who devote time to the process will strengthen the common law, and their credibility.

1.A summary of the McNamara case and the subsequent bribery prosecution that led to Darrow's need to defend himself appears in Gerald F. Uelmen, Who is the Lawyer of the Century?, 33 Loy. L.A. L. Rev. 613, 613-14 (2000).

2.Kevin Tierney, Darrow: A Biography at 267-78 (1979). Tierney's balanced treatment of Darrow also acknowledges strengths and weaknesses in his rhetoric and logic. Comments in the following note are consistent with observations Tierney makes.

3.Tierney, supra note 2 at 78. Measured against the type of synthesis this article promotes, Darrow's logic and rhetoric are disappointing. Darrow did not directly or throughly confront all the key evidence that had been presented in his lengthy bribery trial, and he did not analyze the intersection of the evidence he did confront with legal principles. Rather, after he acknowledged he was on trial for bribery and that a witness at trial had thoroughly implicated him, Darrow shifted the focus: to why he was being prosecuted, "because I have been a lover of the poor, a friend of the oppressed, because I have stood by labor all these years;" to why he had taken on the McNamara case, "[t]hey called on me. I did not want to go. I urged them to take someone else, but I had to lay aside my own preferences and take the case;" to how the prosecution and defense of that case played out, "I believe that both sides have gone about the settlement . . . in the wrong way. The acts of the one have caused the acts of the other, and I blame neither. Men are not perfect." Darrow's Speech in Self-Defense, Los Angeles, 1912, reprinted in Richard J. Jensen, Clarence Darrow: The Creation of an American Myth (Greenwood Press 1992) at 155-166. Consistent with the type of synthesis promoted by this article, Darrow faced patently negative facts directly.

4.This author's analysis of the ethical bases for disclosing adverse authority appears in Kathryn A. Sampson, Adverse Authority: Rationales and Methods for Using It to Strengthen Legal Argument, 1999 Ark. L. Notes 93 (1999). The first publication of the Arkansas Law Notes analysis appeared in CLE workshop materials sponsored by the Arkansas Bar Association and the University of Arkansas School of Law, September 1998 (Fayetteville). It again appeared in follow-up workshops and CLE materials, June 1999 (Hot Springs); May 2000 (Ft. Smith).

5.The cynical view of a writer who acknowledges his ability to argue on either side of a legal conclusion is that the writer engages merely in "spin." This "spin" terminology arose recently in the political arena where the media "spin doctor" practices the "not-so-fine art of press manipulation. The goal is generally to make bad news hurt less . . . and good news help more. . . . Lawyers, of course, have been "spinning" judicial decisions for years. In court, it's called advocacy." Susan R. Estrich & Kathleen M. Sullivan, Abortion Politics: Writing for an Audience of One, 138 U. Pa. L. Rev. 119, 119 (1989) (discussing contrasting "spins" placed on Webster v. Reproductive Health Serv., 492 U.S. 490 (1989)).

6."A first-rate litigator will counsel clients not to pursue a howler and should refuse to continue representing the client who insists on pursuing the claim. If the case actually has hidden merit, then it is in fact a diva and not a dog. A skilled litigator should pursue and win such a case." Michael V. Hernandez, In Defense of Moot Court: A Response to "In Praise of Moot Court - Not!", 17 Rev. Litig. 69, 76 (1998) (observing that moot court exercises are not about training "hired guns" who "must take any case and make virtually any argument").

7.See Sampson, supra note 4 at 93-95 and accompanying notes (Model Rule 3.3(a)(3) discussion). See also, In re Arkansas Bar Ass'n, 276 Ark. 495, 496, 702 S.W.2d 326, 367 (1985), amended 293 Ark. 661, 741 S.W.2d 250 (1987) (Rule 1.6); Howard W. Brill, Arkansas Professional and Judicial Ethics (4^th ed. M&M Press 1997) at 199-25.

8.For a discussion of the challenges faced by the practicing attorney, with guidance from philosophy and ethics, see David Barnhizer, Princes of Darkness and Angels of Light: The Soul of the American Lawyer, 14 Notre Dame J.L. Ethics & Pub. Pol'y 371 (2000).

9.See Michael Sean Quinn, Argument and Authority in Common Law Advocacy and Adjudication: An Irreducible Pluralism of Principles, 74 Chi.-Kent L. Rev. 655 (1999).

10.See e.g., Sarah B. Duncan, Pursuing Quality: Writing a Helpful Brief, 30 St. Mary's L.J. 1093 (1999); Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument (1st ed. NITA 1996).

11.See e.g., James P. Fleissner, Mastering Trial Objections: The Spin Control Method, 20 Am. J. Trial Advoc. 591 (1997); Bradley R. Johnson, Closing Argument: Boom to the Skilled, Bust to the Overzealous, 69-MAY Fla. B.J. 12 (1995); Stephen. D. Easton, The Power of Truth: An Honest Attorney's Guide to Winning Jury Trials in a Dishonest World, 62 Tex. B.J. 234 (1999); Truth in Trial: Overcoming Juror's Mistrust, 57-JUL Or. St. B. Bull. 25 (1997); A Guide to the Care and Feeding of Judges, 31-AUG Prosecutor 36 (1997).

12. Michael W. Mullane, Book Review: Basic Trial Advocacy, 48 Me. L. Rev. 423, 424 (1996) (reviewing Peter L. Murray, Basic Trial Advocacy 12 (Little Brown & Co. 1995)).

13. Id.

14.Drawn from teaching materials created by Frank J. Bozzo, Director of Development, Arkansas State University Mountain Home; Research Assistant Professor, University of Arkansas School of Law, Fayetteville, 1993-00.

15.This approach to case synthesis appears in Peter Jan Honigsberg, Gilbert Law Summaries: Legal Research & Writing (6^th ed. Harcourt Brace 1992-93) at 99-100.

16. 16. Tierney, supra note 2 at 266.