Persuasive Skills For Lawyers In Trials, Appeals, Arbitrations And Motions
by Brian K. Johnson and Marsha Hunter.
Opening Statement And Closing Argument:
This is the only time where you memorize and recite 1-3 sentences to start. If you try to rely upon being spontaneous, you will fail. Your brain needs this to jump start.
An open position of the body makes people trust you. A closed position means you are argumentative. Closing argument is merely a strong recitation of your theory of the case to the JURY. Intonation refers to the up-and-down movement of the musical pitch of your voice. Cf. Monotone. When your voice goes high-pitched or low-pitched as you speak, you create audible punctuation – the sound of a period, comma, question mark, or exclamation mark. “That is amazing!” Or “You did what?” Practice walking your voice up and down the steps of your pitch.
The more frequently you practice, the better you will be. So, don’t set aside, e.g., two all day practice sessions. Instead, set aside many, shorter sessions to practice. Solitary and mindful (alone and aloud) practice is absolutely essential. Practicing alone makes you feel more comfortable and, by being comfortable, you will plod along, make mistakes and correct them. When you finally feel comfortable enough with your approach privately, practice in front of colleagues. Your brain knows how things are supposed to be done. Your body has to be trained. For example, Steph Curry has, no doubt, read and been taught how to shoot a free throw. He had to train his body to approach each shot the exact same way and execute. With the decreasing number of trials, even the most experienced advocates have to practice more frequently. Forget perfection. Your goal in practice is only to make yourself better. Besides the JURY wants to see you human. Your humanity makes you credible. The most important reason to practice is to rid yourself of your consciousness. The last thing you want to do is to practice in front of a mirror, unless you are practicing certain facial movements as you speak aloud.
If you want to assess your gestures, place a piece of copy paper over your face in the mirror and rehearse your opening, e.g. You will see and tweak them. Practicing helps you become your true and natural self when the pressure is on. It does not make you appear less credible to the jury. Once you practice enough, it will feel, appear and be natural. Feeling silly? Well, would you rather feel silly alone or completely and utterly embarrassed in front of the jury and your client. Look at it through the eyes of a client: Would you rather have an attorney who is unwilling to practice before trying your lawsuit or would you rather have an attorney who is constantly practicing?
Be patient with yourself as your practice, for progression comes in small steps. As you practice your advocacy skills over time, your progression will be: novice > competent > proficient > expert.
Set a meaningful and deliberate pace to your presentation. When practicing, speak first and write second. After you practice various points of your presentation, jot down notes of what you did well, need to improve upon and what points of your presentation need emphasis, and how you will accomplish placing emphasis on these points, whether through gestures or speaking with different inflection. If you like a particular phrase, practice it over and over again until it becomes second nature. Don’t waste time and avoid meaningless filler, e.g., “Thank you, ladies and gentlemen of the jury, for your service.” In particular, practice and perfect (as best as possible) your opening and closing due to primacy and recency. If you feel compelled to thank the JURY, wait to do so until the commencement of your closing argument. It lets the JURY know that you are reaching a conclusion. End each DX or XX with something memorable which enhances your case.
Practice transition moving you from topic-to-topic and headlines for each new topic. “Ms. Wang, we have explored your educational background. [ending/transition] Now, let us discuss your employment history [headline].” If you tell the Jury where you have been and what you are going to do next, the JURY will know where you are in your presentation and follow it. When you obtain an admission on XX, pause and allow silence to serve as a way for the JURY to process the importance of what has just been said. Three seconds, while feeling like a long time, is not. Count silently in your head. When you must read from a document or a deposition transcript, practice.
- Pick up the document and hold it up
- Read it one phrase at a time emphasizing key words in each phrase
- Read the meaning of the words, not just the words themselves
- Mark up the document to assist your reading (put slash marks where you intend to pause between phrases and underline the key words in each phrase that clarify the meaning
Practice pronouncing difficult words until you become proficient and comfortable. When writing notes, print largely and legibly so that you can see them from a distance away. If you are going to be writing on a flip chart, practice writing largely, legibly and carefully. Generally, jumbo-sized markers work best. If you are going to use the Elmo or any other visual aid, practice using it in advance. But, be sure at all times to point your toes toward the Jury. If you face the Elmo, e.g., you will have your body turned away from the Jury.
When pointing to the visual aid, use your arm closest to the visual aid. 3 Ts:
Always tell the JURY what they are looking at, where to look at on the visual aid, and then pause, allowing the JURY to read. If you speak, the JURY will be forced to either lose track of what you are saying by reading the visual or follow your speech and ignore the visual aid. The JURY cannot do both concurrently.
- Practicing asking foundational questions (e.g., when trying to introduce business records into evidence) in the proper order until they become automatic.
- MAKE A VIDEO: There is no impact more valuable than actually seeing and hearing yourself give a presentation. Do this while practicing. But do not speak to the camera. Place the video where the JURY will be sitting and then ignore it as you practice. Tally the things that work well and be specific.
- Emphasize one key word with each phrase. Use emphatic gestures as you do.
- When doing your opening, stand in one location of the courtroom while discussing your clients and your clients’ position in the lawsuit and then stand in another location of the courtroom while discussing your opposing party and your opposing party’s position in the lawsuit. This creates a subtle contrast between the two theories of the case. When you go to conclude, move to a third area of the courtroom.
- Instead of speaking nonsense word-fillers/thinking-noises such as “um”, remain silent.
- Focus on your Judge/JURY prior to speaking every time.
- Explain the burden of proof and complex legal concepts in your case carefully to the JURY.
- Eliminate “OKAY” from the start of every follow-up question, which is unfortunately a natural habit. You MUST overcome this urge by inhaling deeply prior to asking your next question in its place.
- It is also a bad habit to say the word “AND” prior to asking the next question. Instead, inhale deeply and just ask the question itself without the “AND.”
- I AM SO BORING: Tackle this problem by videotaping yourself and looking to see if your face is like stone or if your voice is monotone.
- The default advocacy attitude appears austere, solemn and somber, i.e., “Lawyer Gothic.” This is not a compelling attitude. Instead, pick and attitude to suit your tactics for each portion of the case wherein it is appropriate. For example, in a PI case, use a positive attitude when describing what life was like for the victim pre-accident and use a somber attitude when describing what life is like for the victim post-accident/now. On DX, appear curious so that the JURY will listen more attentively. On XX, adopt an attitude of skepticism which will make the JURY question the credibility of the adverse witness.
- Drive time offers a great opportunity to practice your speech uninhibited. Practice speaking while taking a walk. Abraham Lincoln did this routinely.
Finding your rituals, developing a solid technique and relying upon good speaking habits all go along way to help prepare you for trial. Pump yourself up as athletes do before the big game. If you typically speak too quickly, break each sentence down into sentence fragments with a pause in between.
Make a positive impression during jury selection. Select the tone, attitude and demeanor you will use. Be loose in your posture. Gesture immediately as you introduce yourself. This will help you loosen up. Rehearse your opening remarks so that your brain can start flowing.
- Announce a topic relevant to the case
- Suggest a wide range of feelings relevant to that topic
- Ask for individual responses
- Use open-ended questions to learn more from each potential juror and ask repeatedly if others feel likewise for each topic raised
- Pose leading questions to conclude
Find out in advance how jury selection works in that particular Judge’s courtroom.
To present a clear OS, understand the difference between stating a fact and arguing a conclusion. You state what you expect the facts will be during the trial. Never argue inferences and/or conclusions based upon those facts. If an inference/conclusion, it belongs in Closing Argument. Furthermore, never invoke the golden rule – placing the Jury in the position of your client(s). Stick to the facts. Avoid starting your OS with the cliché “Opening statement is like a roadmap” or “Opening statement is like a table of contents.” As you proceed through your OS, be careful on how many times you say “The evidence will show.” It is tiresome for the jury to hear this unnecessary phrase repeatedly. Exhibit one attitude when talking about your clients/your case and a different attitude when talking about your opposing party/their case. Pick the attitude that fits the party. Variety of delivery is essential to holding the jury’s attention. Say key facts in a way that signifies their importance. Pause briefly after a vital fact to let it sink in the jury’s minds. Don’t waste time thanking the jury for their service. It sounds canned and insincere. If you must do so, do it at the very conclusion of your OS. Brevity is a virtue. It is better to be too short than too long.
You must act and sound curious. Embrace an attitude reflecting same. Emphasize key words in your questions. For example, “What time did you get there?”, “Who ELSE was at the meeting?” Limit the timeframe of the question so that the W knows to provide a short answer and then move on to the next question, thereby having the attorney always in control. When a W speaks in a narrative, not only is it objectionable, the attorney has lost all control and is entirely dependent upon the W. Look at the Jury when you ask important questions. You want to make the W the star. The attorney is the director who takes charge and makes the star look good. Make sure the W is talking more, and you are talking less. During important points, stop using open-ended questions and give commands like: “Please describe”, “Please explain”, “Tell Us”, etc. This is particularly important with exws. Always make sure the answer comes from the W and not from the attorney’s question. Formatting the right questions is naturally uncomfortable because you have to form each question with proper grammar, semantics, and syntax all at the same time prior to talking. Practice aloud repeatedly prior to entering the courtroom. A good direct does a great job of headlining each line of questioning. Frame the topic prior to asking the first question in the next line of questioning by saying, e.g., “Now let’s discuss your employment history.”
Do not object to the opposing party’s DX when doing so is not necessary and the case is moving along with the presentation of non-critical, stipulated facts. The lawyer is the star on cross. The focus is on the attorney. Never read your questions. Raise your volume and talk authoritatively at the W, through the W and to the Jury. Have the appropriate attitude to different lines of questioning on XX. Do not default to hostility and aggression. The Jury will naturally feel sorry for the W. If you want the W to agree, sound agreeable. Start agreeably and become more aggressive (as needed) to get your points across to the Jury from that W. Control your pace. A rapid fire pace will cause the Jury to not understand your questions, which is the whole point. Speak slowly, loudly and clearly in sentence fragments, not whole sentences, as you deliver the key questions. Remember that your questions are forming entirely new facts for the JURY to consider. So slow down and make sure they can digest what is happening. Leading questions are really only statements to the Jury of information they had not previously received and now will have to digest and remember. Leading questions should string one fact together at a time. Elicit one fact per question. Never ignore the jury during XX but rather turn to the jury and look at them during key questions.
Closing argument is about connecting the dots, making inferences from the evidence, and drawing conclusions as to why your client(s) should prevail. This is not the time to retell the story. The jury knows what has happened and want to return home to their families. you will be wasting their time. argue: (1) why your client(s) should win; and (2) what each, key piece of evidence means. repeat the theme from your os. it will help the jury remember the promises you made on OS, how you proved them with the evidence, and thus why your client should win. Be a good teacher as you argue. Adopt a pace that is in sync with the complexity of your case. Use the legal language from the jury instructions and insert that legal language in in your CA. the jury will remember when the jury returns to the jury room. End strong! Know exactly what you are going to say at the end and say it with conviction.