Legal Advice: Pound the Facts, Pound the Law, Pound the Table

Carl Sandburg? Alan Dershowitz? Jerome Michael? Jacob J. Rosenblum? Oliver Wendell Holmes? Anonymous?

Dear Quote Investigator: A few years ago I saw a famous quotation about legal strategy attributed to a celebrity professor:^[1] 2007 March 4, Fort Worth Star-Telegram, Pounding the Table About Border Episode by Ruben Navarrette Jr., Page E3, Section: Weekly Review, Fort Worth, Texas. (NewsBank)

Harvard Law School professor Alan Dershowitz shares with his students a strategy for successfully defending cases. If the facts are on your side, Dershowitz says, pound the facts into the table. If the law is on your side, pound the law into the table. If neither the facts nor the law are on your side, pound the table.

But I thought that this saying was originally from a Columbia professor named Jerome Michael and not from a Harvard professor. Could you investigate this?

Quote Investigator: There is good evidence that Jerome Michael used a version of the saying while teaching, but the adage was in use before he graduated from Columbia Law School. QI has traced it back ninety-nine years and will present selected citations in reverse order.

Here is an instance of the adage in 2003 at a technology news website. This version uses “hammer” instead of “pound”:^[2]2003 December 8, The Inquirer (theinquirer.net), “IBM, SCO – Hammer the Law, Hammer the Facts, Hammer the Table”, Letters A bumper bundle by The Letterman, Pleading Blood by Henry … Continue reading

Here in the colonies is this lawyerly saying “If you have the law, hammer the law. If you have the facts, hammer the facts. If you have neither the law nor the facts, hammer the table”.

In 1985 the aphorism appears in Parade, the mass circulation Sunday newspaper magazine, in an article by  Morton L. Janklow, an attorney and prominent literary agent. Janklow says he heard the saying while in Law school, and he credits his teacher Jerome Michael:^[3] 1985 December 29, The Modesto Bee, Parade magazine, You Can Be Persuasive by Morton L. Janklow, Page 10, Modesto, California. (Google News archive)

I call it “The Last Resort Rule.” It was taught to me by a great teacher at Columbia Law School named Jerome Michael, who taught a course in appellate advocacy. At the last moment in the last class of the course, when he had taught us everything he knew, he said: “These are my final words on advocacy. If you have the facts on your side, hammer the facts. If you have the law on your side, hammer the law. If you have neither the facts nor the law, hammer the table.”

In 1975 the aphorism is presented as the wisdom of trial lawyers by syndicated political columnist Patrick Buchanan:^[4] 1975 December 30, Chicago Tribune, Mr. Ford, meet Mr. Harris by Patrick Buchanan, Page 8, Chicago, Illinois. (ProQuest Historical newspapers)

There is an old trial lawyers’ saying “When the facts are on your side, pound the facts. When the law is on your side, pound the law. When neither is on you side, pound the table.”

In 1956 the adage is attributed to the famous jurist Oliver Wendell Holmes, but QI has not been able to find any compelling supporting evidence for this claim:^[5] 1956 November 20, Los Angeles Times, Cityside with Gene Sherman, Cuff Stuff, Page 2, Los Angeles, California. (ProQuest Historical newspapers)

You don’t have to be a lawyer to recognize the admonition of Oliver Wendell Holmes quoted by Scotty Mattraw in Printing Buyers’ News: “If you’re weak on the facts and strong on the law, pound the law. If you’re weak on the law and strong on the facts, pound the facts. If you’re weak on both, pound the table.”

In 1936 Carl Sandburg included an instance in his book length poem “The People, Yes” which contained a large number of quotations and sayings that were circulating in the U.S.:^[6] 1950, Complete Poems Carl Sandburg by Carl Sandburg, Poem: The People, Yes, Section 69, Quote Page 551, (Published first in 1936), Harcourt, Brace And Company, New York. (Verified with scans)

“If the law is against you, talk about the evidence,” said a battered barrister “If the evidence is against you, talk about the law, and, since you ask me, if the law and the evidence are both against you, then pound on the table and yell like hell”

The earliest version located by QI that contains the humorous three-fold repetition of “hammer” is dated 1934. This version also suggests attacking the opposing counsel instead of hammering or pounding a table. The quotation appears in Golden Book Magazine:^[7] 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) link

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.'”

The word hammer or pound often appears in the adage, but this variant in the Rotarian in 1925 uses neither:^[8] 1925 March, The Rotarian, Among Our Letters: This War Business by W. N. Fitzwater, Elkins, W. Va., Page 50, Rotary International. (Google Books full view) link

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.

In 1915 “A History of Northwest Missouri” included a section about General John B. Clark of Missouri. The book described the advice John gave to his son Robert:^[9]1915, A History of Northwest Missouri, Edited by Walter Williams, Volume 1 of 3, Section: General John B. Clark, Quote Page 117 and 118, The Lewis Publishing Company, Chicago, Illinois. (Google Books … Continue reading

“Bob, when the facts are against you bear down hard on the law; when the law is against you bear down hard on the facts.”

“But father,” interposed young Robert, “suppose both the law and the facts are against you—what must I do then?”

“What must you do then” growled the veteran lawyer as he thought of his many tussles at the bar. “Why, Bob, then give the lawyers on the other side the devil—yes, sah, give them the very devil”—a sage precept which many lawyers beside Bob Clark have acted upon and will continue to act upon till courts shall be no more.

The earliest citation found by QI is dated 1911. The prolixity of this version highlights the improvements of the expression over time. The streamlined concision and clever wordplay of the modern version are absent in this version, but the core idea is present:^[10] 1911, The Work of the Advocate: a Practical Treatise, Second edition, Footnote 17, Page 390, Bobbs-Merrill Company, Indianapolis, Indiana. (Google Books full view) link

“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.

In conclusion, this saying evolved over time, and QI suggests using an anonymous attribution. Byron K. Elliott and William F. Elliott wrote a version in 1911 but attributed the punch line to an unidentified “modern commentator”. Carl Sandburg helped to popularize the expression with his 1936 poem. Jerome Michael graduated from Columbia Law School in 1912, so he probably did not craft the aphorism.^[11] 1953 March, Columbia Law Review, Jerome Michael, Page 304-306, Volume 53, Number 3, Columbia Law Review Association, Inc. link

(Thanks to Robert A. Polner who mentioned the attribution to Carl Sandburg on twitter, and thanks to Robert Loerzel who notified QI. Also, thanks to other participants on the twitter thread: Michael Powell, Bill Savage, Ellen Wade Beals.)

Update History: On February 9, 2021 the Carl Sandburg citation was added, and the 1915 citation was added.