Andrew Lannon

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.

Technique:

• 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:

• Touch
• Turn
• Talk

 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.

Mental Preparation

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.

Jury Selection

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.

Opening Statement

  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:

  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.

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Persuasive Skills For Lawyers In Trials, Appeals, Arbitrations And Motions

by Brian K. Johnson and Marsha Hunter.

Move with a sense of purpose

  If the Judge allows you the freedom to move, only do so with a purpose, your movement in the courtroom is at the complete discretion of the Judge. Know what your Judge will allow and adjust your behavior accordingly. A purposeful move is motivated by and connected to your words and ideas. A purposeful move occurs when you walk to a new location, finish your line of argument/line of questioning, start a new topic and slowly walk to another area of the courtroom, thus distinguishing your two arguments/lines of questioning as being independent of one another for the jury, who may be struggling to understand difficult concepts in your case being laypersons. Movement from stasis attracts the jury’s attention, so you must employ it where possible/necessary. but, please note that constant movement is only distracting and only diminishes your presentation. it becomes like watching a ball at a tennis match. it eventually gets tiring, and the jury stops paying attention. it is literally visual monotony. so, only move purposefully.

Always face the jury. never have your back to the jury. Sustained eye contact is the key element of persuasive style. Movement, though, does not make you more or less of a trial attorney. it only helps enforce your point(s). it is a stylistic choice. remember, you must be your authentic self. if movement is unnatural for you and disrupts your flow, then learn to present your case from the lectern in an equally effective way.

  Tactical breathing: breathe consciously. the way you breathe is directly connected with the way you feel, think and speak. Once you learn to control your breathing, it will help you:

• Calm down;
• Project your voice; and
• Oxygenate your brain.

  Deep breaths have a calming effect. So, take longer inhalations and longer exhalations. Fast, shallow breathing brings anxiety, fear, panic, negative emotion, etc. You breathe like you feel, and you feel like you breathe. When you take long, deep breaths, your body reverts to its natural state of breathing when you are calm. Low, deliberate breathing brings great comfort and diminishes anxiety. When you are breathing naturally, your respiratory system is controlled by your autonomic nervous system. This is the same system that regulates your beating heart, blinking eyes and other vital functions. But, you can override your autonomic nervous system at any time. When you do so, your conscious breathing calms you down and you feel better.

LOWER TORSO: Your lungs are located in your upper torso, protected by your rib cage. The diaphragm is a dome-shaped muscle located underneath the lungs and atop the vital organs. When you draw a breath into your lungs, your diaphragm muscle flattens out toward your waist, creating a partial vacuum that pulls air into your lungs. When the diaphragm moves down, the abdominal wall protrudes, and the intercostal muscles pull the rib cage outward slightly. As your lungs fill with air, your internal organs are pushed down and forward as your diaphragm flattens. This is why deep breathing happens in your lower torso. It is your abdominal wall/belly which moves forward during deep breathing. So, take deep breaths feeling your belly touching your belt/waist band. This is not a large movement. It is very subtle, so no one will notice. By contrast, breathing through your upper torso causes your shoulders and arms to move, which is quite obvious to a casual observer. Learning to breathe in this manner 24/7/365 will eventually become second-nature, and you will have tapped into potential which most people never discover. But, in the interim, at all points in trial where you are going to initiate performance of a new task, as opposing counsel is finishing up DX, for example, take 2-3 deep breaths before standing. Visit the courtroom (more than once, if possible) prior to your trial, sit and observe the judge and his/her courtroom procedures/rules.

Athletes are trained to breathe deeply. The amount of air in your lungs is what enables you to project your voice throughout the courtroom. More air = more sound. Breathe in > speak out. Start speaking when your lungs are full of air and then slowly exhale through your speech. The more deeply you breathe, the more air which is in your lungs. The oxygen then enters into your bloodstream and circulates around your body, including and especially your brain. Your brain needs at least 20% of the oxygen in your bloodstream. Hence, your breath helps you to think quickly and clearly.

How To Get Adrenaline To Flow Properly Out Of Your Body When You Have “Butterflies” – Hand Gestures:

It is a historic belief that hand gestures distract the Jury. This is false. It is not only necessary to do so in order to be an effective advocate, but also absolutely unnatural for a person not to do so. Everyone uses hand gestures in conversation, especially when trying to persuade someone. Hand gestures enhance the message you are advocating and release the adrenaline in your body. Hand gestures are controlled by instinct. Start paying attention to your own hand gestures. Then, notice how often your hands move. Then ask yourself:

• How often do I make hand gestures while speaking? Are they distracting?
• When/why do I make hand gestures when I am speaking? Are they distracting?
• How large are my hand gestures? Are they distracting?
• How frequent are my hand gestures? Are they distracting?
• How long do my hand gestures last? Are they distracting?

  Children who were born blind were studied, and it was discovered that blind children from birth used hand gestures just as frequently as sighted children. There is some causal connection in our brains between hand gestures and the free flow of speech. The more rapidly your hands gesture, the more rapid your speech. Hand gestures help people understand what is being said.

  In a study, people were found to learn what was said in conversation twice as well when hand gestures were used as when they were not used. In other words, using hand gestures will help the Jury remember what you said. Hand gestures give the Jury/Judge notice of your intent and your point-of-view, which is statistically proven to help the Jury/Judge follow, remember, and be persuaded by your argument. Hand gesturing assists both word-retrieval and memory by 20%. Because gesturing is critically important, it is important to practice your hand gestures as you practice your argument prior to trial. At the same time, start gesturing purposefully and consciously in your real life in normal conversations. Eventually, it will become second-nature and will enhance your credibility. Occasionally, your gesture will use both arms. Use this only for key moments. Make sure your gestures are not tight and constricted. This is counter-intuitive and makes your credibility questionable by the Judge/Jury. Be careful not to clinch your fist. Purposefully trying not to gesture will cause your bodily to naturally impulse, causing a twitch in your forearm or some other part of your arms which draws negative attention to yourself. Furthermore, when your gestures are restrained, you tend to speak in a monotone fashion.

  No one gestures all the time. It is done so only purposefully. When not gesturing, your hands must be loosely touching at waist height, not tightly pressing against the abdomen but loosely above it. This is the ready position. It is statistically proven that your hands are then virtually invisible. Why? Because people naturally focus on a person’s eyes when they are speaking. When you lean your hands on the lectern, you are extremely unlikely to use any hand gestures because it is then unnatural for your body to leave their position in rest. Similarly, do not interlace the fingers of your hands as it does the same thing. Simply place your right hand over your left hand but do not interlace your fingers. Do not always gesture with both hands. Gesture with your left hand and keep your right arm hanging slack. Then, gesture with your right hand and keep your left arm hanging slack.

4 Steps Of Gesturing:

1. Hands in ready position
2. Gesturing with both hands/arms
3. Gesturing with the left hand/arm only
4. Gesturing with right hand/arm only

The “give gesture”, when used in a courtroom, is very effective on important points of your dxs because it appears like you are handing a non-offensive, gentle question to the witness who then answers it in the manner which advances your case.

The “chop gesture” is an emphatic, important tool (when properly used) on: (1) XX and (2) closing argument. The “chop gesture” accompanies and intensifies a verbal ST.

The “show gesture” [thumb pressed firmly on top of your loosely-clenched hand] is a literal reenactment of your words. It is like a visual aid to the Jury/Judge which shows what message you are trying to convey to the Judge/Jury from the evidence.

Common gesture format: “On the one hand…” – gesture with the left hand. “On the other hand” – gesture with the right hand. Doing so highlights the contrast between the two ideas so the Jury/Judge can see the issue and your version of how it should be resolved. Never use your middle finger in any gesture. Repetitive gestures become monotonous and annoying to the Judge/Jury. Avoid pointing with your index finger. Also, do not give the thumbs up like President Bill Clinton. It makes you lose credibility with the Judge/Jury. Do not hold a pen/pencil. Put it down. It is only for writing, not speaking. The pen/pencil will distract and annoy your Judge/Jury.

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Persuasive Skills For Lawyers In Trials, Appeals, Arbitrations And Motions

by Brian K. Johnson and Marsha Hunter.

“The amount of mental content in an interval determines its subjective duration.” – Robert E. Ornstein

Posture And Alignment:

  Posture refers to the position/bearing of the body. The body must be upright and erect with the head held high. Observe a dancer on stage. Your entire spine must be perfectly aligned. Realign your head and neck so that they are properly atop your torso. Remember not to pull your shoulders back and your chest forward, for your head and neck is naturally not on an even plane with the torso but rather ahead of the torso.

Eye Contact:

Everyone focuses on your eyes while you speak. You thus must be aware of your demeanor as you speak. Practice what you have to say in front of a mirror repeatedly to adjust your demeanor for your presentation. Ultimately, it comes down to: “Can you look me in the eye and tell me that is the truth?” If your eyes are fixed on your notes instead of the Judge/Jury, you miss important events that are transpiring in the courtroom. While making eye contact is very difficult while talking under pressure, you must practice it until it becomes second-nature. If you don’t maintain eye contact, you will appear to the Judge/Jury as distracted, absent-minded, or simply stumped. The secret to eye contact is to keep your attention at all times on people, not things. Never begin speaking until your eyes are locked on another person, e.g., your witness. Expect the Judge/Jury to be stoic and stone-faced at all times. Resist the urge to look away and maintain eye contact. When you are not in action, your face must remain in neutral attention.

 Never furrow your brow. It makes you look scowling and negative. To alleviate the tension, lift both eyebrows and then return them to their proper position. This instantly relieves the tension. When speaking to a jury, look at the front left of your jury box, then the right rear, then the right front and then the left rear. By doing so, it will appear to the jury that you are making proper eye contact without staring. When you need to look at your notes, do so occasionally and STOP talking. Judges/juries hate to be read to but do expect that an attorney will look periodically at notes.

Adrenaline profoundly effects your brain as well as your muscles. It is imperative that you understand the impact it has upon your cognitive processes and that you learn how to control and channel its power. Adrenaline alters how your brain experiences the passage of time, causing you to lose sense of whether you are speaking too quickly/slowly/loudly/softly. Adrenaline creates the illusion of a time warp. In your mind, time appears to move more slowly causing you to accelerate the pace of your speech. But talking too fast makes the brains of both the speaker and the Judge/jury unable to process all the information that is being conveyed. Use adrenaline in such situations to gather your thoughts, explore your options and make the best choice before proceeding. It is the same experience as a person who is in actually fear for their life. Train yourself to channel and exploit the “time warp.” When you are having a good time, time seems to flow by. Conversely, when you are bored, time seems to slow to a crawl. The same holds true for the Judge/jury. When adrenaline is flowing to your brain, your brain processes information at an unusually high rate.

In other words, if your brain is processing increased amounts of information due to adrenaline, as it must in a life-or-death situation or while advocating, you may subjectively experience time as slowing down.

“With more beats in an interval, time experience lengthens.” – Robert E. Ornstein

With adrenaline, your heart beats twice as much as it does at rest. Athletes like Tom Brady, Michael Jordan and Babe Ruth learned to use and exploit this “time warp” and typically refer to it as “being in the zone.” That is how they can function so well under tremendous pressure. An excellent advocate always uses silence to their advantage. Most attorneys erroneously believe that they must speak throughout the trial, or they aren’t earning their fee. But, that is counter-intuitive. The witnesses need to be the focal point throughout most of the trial, not you. Let the witnesses speak and speak sparingly and purposefully.

NB: You have lived with your case and know it backwards and forwards. However, the Judge/JURY are learning about your case for the first time. The Judge/jury need to be brought up to speed on what has transpired and lead logically but slowly and patiently to your position. Give the Judge/jury time to think and process what you are saying and then form an opinion.

ECHO MEMORY:

When a person speaks, the listener actually hears it twice. First, the listener hears it come from the speaker’s lips. Then, the listener instinctively repeat what was said in their mind to help them remember. It is why you repeat a person’s phone number until you can get to your cellphone and input their information. Echo memory helps the brain remember. So, if the Judge/jury is to be lead to your position, they must hear at purposeful but regular intervals your theory of the case and the evidence which leads the Judge/jury to render a decision in your favor. Echo memory also happens when the jury takes notes of what you are saying. the jury needs time to digest and understand what you are saying. Never read from your notes. While you may be tempted to do so, you will only appear boring. Furthermore, you will not maintain eye contact with the Judge/JURY and will, thereby, lose credibility. Never recite. Recitation is a highly specialized skill. This is why there are many actors/actresses but few excellent actors/actresses. So, don’t attempt to memorize your presentation. It will not work.

 SOLUTION: Structured improvisation. In advance, you structure the organization of topics you plan to talk about in your motion, appeal, opening, closing or examinations. You improvise word-by-word. Your brain is quite adept at this form of conversation as it is commonplace in normal conversation. Using sports again as an analogy, NFL players train and master a playbook. However, they must be able to adjust to the situation on the field and call an audible as necessary.

Never read and talk simultaneously. Do not create notes with prose paragraphs that must be read. The more words you write, the less effective your presentation will be. The written word is processed in a different part of the brain than the spoken word. When given the option, your brain will naturally elect to read what you have written than to speak spontaneously. It is perfectly fine to reference your notes. Just do not read from them. The shorter your notes, the better.

Good visual aids/notes provide a structure around which your speech can be improvised. Use a large font so that they are able to be read easily. Do not use handwritten notes. Type them. Keep notes simple. Less is more. Fewer words are more useful. Use as few words as possible to trigger a train of thought. Avoid prose sentences. Use bullet points and trigger words. The Judge/Jury does not mind you looking at your notes. It offers the Judge/Jury a break to absorb the information you have just relayed. When looking at your notes, really pause, read your notes and then speak when ready. The Judge/Jury will listen more attentively then. You will occasionally lose your train of thought during your presentation. Be prepared for when this occurs. The transitional utterance, “Let’s move on”, is a good way to take a break, look at your notes, and stop talking. Trust silence and be comfortable with it. Alternatively, you can be forthright and say, “Excuse me. I have lost my train of thought. Please give me a moment.” The Judge/Jury will appreciate your candor. If writing feels like a natural part of your style of presentation, do not fight it. Rather, write out your argument in full sentences and then slowly shrink it down into bullet-pointed sentence fragments to help jar your memory. You do not write in the same style with which you speak. Do not use legalese with a JURY. It sounds artificial and unbelievable.

Chunking: The human brain prefers to receive information in chunks. It likes to aggregate many bits of information into chunks so that there are fewer things to remember. One way to have the Judge/JURY follow your presentation’s structure is to indicate clearly when one topic or line of discussion is ending when another is beginning.

Primacy and recency: Judges/Juries pay most attention to the beginning and ending of arguments or presentations. Minds often wander in the middle as attention and retention drops. You have a small window of opportunity to grasp their attention. You must start strong with your strongest points and hold their attention throughout. Do not begin with meaningless fillers, e.g., “How are you today, Mr. Smith?” Or “This is a simple case…” No one listens attentively all the time. Attention rises and falls. Your job is to continuously find ways/opportunities to grasp the Judge/Jury’s attention. Group the various topics of your presentation into a chunk-like structure that the Judge/Jury can follow and pay attention to. When you behave nervously, you make the Jury feel nervous. Conversely, when you are comfortable and confident, the Jury will be at ease with you.

Demonstratives/Exhibits:

When using a demonstrative/exhibit, you want the JURY to be able to (1) focus on what information is most important in the demonstrative/exhibit, (2) read that portion and (3) understand that demonstrative/exhibit’s significance. Use targeted silence to your advantage. Remember that humans cannot read and listen simultaneously. Additionally, tell the JURY what they are looking at and precisely where to look. Remember: When you are in the adrenaline “time warp”, you interrupt that silence too quickly. Be cognizant of this. The JURY needs time to be able to read and understand. Be sure to explain your “pull-outs” and highlighted portions and explain why you are doing so. Read out loud the deeper meaning you intend to convey. Do not use demonstratives/exhibits that are dense with text. Do not project your outline for opening or closing. Outlines are boring. Do not use them as ppts in your argument. Consider carefully what words you wish to project. Be sure to project your case theory. Turn the Elmo/projector off periodically to redirect the JURY’s attention so as to have their full attention on you. Lingering slides are a distraction. Timing is critical. Save slides for the proper moments in your presentation.

Practice and learn to speak persuasively and audibly for extended periods of time. This makes your voice sound authoritative. You must become reliably fluent and articulate when the Judge instructs you to proceed. Improving your voice requires you to record yourself and work to improve upon it. Listening to yourself will not be sufficient. When you do so, you tend to think you speak nasally when that is not actually true. Your voice must be able to project clearly throughout the courtroom. You must be able to project your voice loudly and for long periods of time. See, e.g., an opera singer. All big voices are powered by muscle and practice. Only consistent breath control makes every word audible. When your breath wears out while speaking, your voice trails off and becomes inaudible. When examining witnesses, end each question with a strong voice so as to project properly. Pause between sentences and breathe deeply. The more air that passes through your vocal chords, the louder your voice will be. Your jaw, lips and tongue articulate your ideas. Taste/savor every consonant. Always annunciate vigorously. Speaking clearly so as to be understood requires precision. Thus, warm up your voice prior to entering the courtroom like an athlete warms up before partaking in a sporting event. In order to warm up your voice, say “nimminy, pimminy”, “butta, gutta”, “girl gargoyle, guy gargoyle”, “Swiss wrist watches” and “statistically significant” over and over again out loud. It works the different areas of your mouth and increases blood flow to the necessary areas of the body for public speaking. Over articulate and increase your speed as you go. In order to be persuasive, you must control the pace and tempo at which you speak. Persuasive speech requires more energy than casual conversation. Speak in phrases, not in whole sentences. Example: “I pledge allegiance”… “to the flag”… “of the United States of America.” OR “Ask not what your country can do for you”… “but what you can do for your country.” Use audible punctuation to delineate between different chunks of information you are trying to convey to the Judge/Jury. This gives your brain sufficient time to gather itself and keep your presentation focused. This gives the Judge/JURY time to process those verbal chunks. Use your pace to set forth and emphasize the significant points of your presentation to the Judge/Jury. Vary your pace throughout so as to not be boring. Your first few sentences frame your presentation. So, state your theme clearly and upfront.

Make your points by constantly adjusting your volume, pitch and duration. Achieve emphasis with duration by lengthening the word spoken. Dr. Martin Luther King, Jr.  was excellent at elongating vowels during his speech to emphasize certain words. The more time you take to drag each word out of your mouth, the greater your ability to emphasis key words, consonants and/or vowels.

When you do not emphasize key words, all the words seem to run together in a train. Hence, no point is conveyed as the brain only processes information in chunks, not in one, long stream. When practicing your opening and closing, pick which words, vowels or consonants need to be emphasized to make your speech most impactful and practice doing so.

Why Reading Is Bad In A Courtroom

We all read constantly. When we do so, we are normally alone, reading in quiet. In such circumstances, our brain reads the words much, much faster than a normal conversation. That is why when words are near, it is natural to gravitate to them and read aloud out of instinct. Resist the urge. When we read aloud, we tend naturally to read the words as quickly as we do when we are reading alone, making it impossible for the Judge/JURY to follow your presentation. Your voice will also be monotone and, thus, be boring. Additionally, your writing style is different from your speaking style. You neither speak the way you write nor write the way you speak. Thus, reading sounds stilted and overly formal. When you absolutely must read aloud in a courtroom, e.g., from a deposition transcript, read in phrases, slowly, deliberately, one phrase at a time. Adopt a slow, deliberate pace and highlight/underline key words you wish to emphasize. When you speak in phrases, your brain and your mouth are in sync.

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Persuasive Skills For Lawyers In Trials, Appeals, Arbitrations And Motions

by Brian K. Johnson and Marsha Hunter.

“Any fool can know. The point is to understand.” – Albert Einstein

Great lawyers share the ability to capture the essence of an idea and express in it ways that convince others of its inherent strength and persuasiveness. Clients want experienced trial lawyers. It is statistically unlikely that an attorney will have trial experience on the job. Taking pro bono cases that have a substantially likelihood of going to trial and the client does not have the financial means to pay for the lawsuit can give you the trial experience you need.

You must be forever vigilant in making sure you NEVER:

• SPEECH: speak too quickly, softly, loudly, etc.
• NO GAP-FILLERS: use nonsense, “speaking” noises such as “um, ah, ok, oh h’uh, u’huh, etc.”, which naturally fill gaps in ordinary conversations but yet are inappropriate for the courtroom.
• BODILY MOVEMENT: move too much or too little, awkward bodily movements; etc.

“Practice makes the master. We are what we repeatedly do. Excellence, then, is not an act but a habit.” – Aristotle

Practice and learn to use analogies to translate arcane concepts into human values that a Jury can rapidly understand.

Practice your approach mentally and physically in a make-shift courtroom in your office, your house, etc. And rehearse over-and-over again prior to trial. This is why professional athletes like Tom Brady and Michael Jordan are the best at their respective professions. By rehearsing in this way, you are thereby lessening your anxiety at trial because it will be almost fluid by that point ideally.

“The difference between ordinary and extraordinary is that little extra.” – Coach Jimmy Johnson

Effective advocacy is both an art and a science. You must be your true, authentic self at all times. You cannot convince others of anything if they don’t believe in your sincerity. Lawyers are required to advocate persuasively;

• In different settings (trial, arbitration, appeal, etc.);
• Using different methods of delivery (arbitration/bench v. Jury trial);
• Adapting to different juries in various venues (especially the ways of thinking by the juries in those venues wherein your trial will be held).

• GOAL: To be the best advocate always in all ways, whether a trial lawyer or an appellate advocate.

Some of your natural human behaviors will make you look unnatural in a courtroom. As an advocate, you must then employ some conscious behaviors to look and feel natural in the courtroom. To complicate matters, most lawyers remain oblivious to their unnatural, natural behaviors due to the natural human tendency of others not to criticize, even if done constructively, and because people are highly sensitive to criticism and, therefore, do not seek it out. Some examples of unnatural, natural behavior:

• biting fingernails,
• playing with/jingling keys/coins in pocket,
• repeatedly brushing your hair back from your face,
• repeatedly touching/playing with your eyeglasses,
• slumping over,
• crossing your arms,
• waving your arms about,
• shifting weight back-and-forth,
• fiddle with your pen/pencil, etc.

When adrenaline enters your system due to your nervousness of being in the courtroom, your body fights to revert back to its unnatural, natural behaviors as a coping mechanism for the stress. That is when you must be extra vigilant to observe yourself and ask your trial partner (if you have one) to observe you and provide live feedback to you too. Judges and juries demand formality and self-control, at all times, from attorneys before them.

On DX, you only ask questions to which you already know the answers. You NEVER ask a question wherein you don’t know the answer. Your DX must be worded appropriately, asked with appropriate curiosity and sound spontaneous. Your DX should come off as effortless as a natural conversation, NOT scripted and rehearsed.

Your voice at trial must be loud enough to fill the courtroom and must have authoritative audibility, whether natural or practiced (If you are naturally a soft-spoken person) Control the pace at which you speak, do not speak too quickly or conversely too slowly. Eliminate all thinking noises (“uhms, oks”, etc.). Finally, be emphatic to the Jury at trial when you reach those points where your most persuasive arguments lie and choose your language carefully when the pressure is on.

You must face head-on all of the weaknesses in your natural behaviors, permanently change them by being conscious of them, and work to permanently eliminate them. You must, at the same time, enhance what you do well. Combined, you will then be “the articulate advocate.”

Goal For Advocate:

Appear confident, your confidence puts your client at ease. Appear comfortable, your comfortable demeanor psyches out/unnerves your opponent. Appear credible, this can make the Jury or judge(s) issue a decision in your favor.

Every attorney, no matter how experienced they are, experiences “butter flies” in the courtroom. Practicing your approach pre-trial only lessens them. When the human body experiences stress, it naturally produces adrenaline. So, it is critical to understand how adrenaline (fight v. Flight) works so you can use it to your advantage. Adrenaline helps professional athletes perform their job duties better because the adrenaline pumped by their bodies in anticipation of performance produces the energy needed to run faster, throw a ball farther, etc., and further helps them focus and produce consistently positive results under tremendous amounts of pressure (again, e.g., Tom Brady and Michael Jordan). Adrenaline, when pumped throughout the human body, makes the hands and arms shake (body preparing for “fight” option) and your knees knock (body preparing for “flight” option). Furthermore, rapid, shallow breathing occurs as your body prepares for both options. Consistent, repeated, proper preparation of your argument in advance is the only way to lessen, though never entirely eliminate, the amount of adrenaline pumped through your body.

SOLUTION: Prior to speaking, breathe deep breaths for a few seconds and count those seconds in your head. In the interim, regain control of your diaphragm. Prepare your body, and ready your mind. Create your own performance ritual. Look at how Steph, e.g., approaches each free throw. He has a ritual that he never deviates from and, as a result, leads the NBA all-time in free throw percentage at 90.69%.  To reduce adrenaline in a similar way as an advocate, you must rehearse your argument repeatedly, always being cognizant at all times of your body and your mind. When your body and mind are in unison, under control and relaxed, the need for adrenaline is diminished. Thus, you will gain, and maintain, control. Random movement, while it feels good/beneficial at the time because it is helping your body to release the energy caused by the adrenaline, must be avoided at all times. Reliance on a physical ritual frees your brain’s pre-frontal cortex, the area of your brain for higher intellectual function, from being distracted by pacing, fidgeting, gestures, etc. And ensures that your body’s actions will be governed by your brain’s motor cortex which is the brain’s overseer of normal, automatic functions. Your pre-frontal cortex can then concentrate on what is really important, to witness what you want to say, and how you want to say it. Stance: Make sure your body is always centered.

Lower Body: Make sure your feet are a comfortable distance apart. Do not have them close together so that your shoes touch. Do not adopt a stance that is too wide either. Embrace a stance in between the two.

• Never cross your legs or ankles.
• Never speak until after you have firmly planted your stance and taken a few deep breaths. Stand still (do not pace).

Isaac Newton’s theory applies equally to the courtroom, to wit: A body in motion tends to remain in motion, while a body at rest tends to stay at rest. When you are at rest, you look calm, confident and in control. When you are in motion, you unconsciously rock, sway or shuffle your feet, thereby appearing nervous and neither confident nor credible to the Judge or Jury. Your knees should be in the position that you have while riding the subway when you are standing and holding the railing. This will prevent you from moving.  Center your hips over your feet and knees, thereby balancing the weight equally on both legs.

• Avoid absolute rigidity. You should not appear that you are stuck in concrete.
• For women wearing high heels, tuck your tailbone to prevent your weight from shifting toward your toes.
• Once you do all of this, you will then have conscious control over the major parts of your body: buttocks, leg muscle and calves.

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• When you argue to a Jury, there are really only two arguments they can choose from: yours and your adversary’s. Using emotion in your argument, lead the Jury to your choice.
• Convince the Jury that what you want them to do makes sense so they can have a clear conscience when rendering a verdict in your favor.
• Set goals for yourself and goals for the Jury. Do you want to change their (1) mood, (2) mind or (3) willingness to carry out what you want?
• Aristotle: All decisions come down to three elements: (1) blame; (2) values; and (3) choice.
• Rhetoric / Arguments: You will never get your point across if you argue and do not touch on the core issue.
  • Demonstrative Values – Present – Good v. bad. Meet a community’s ideals or fail to live up to them.
  • Forensic Blame – Past – Determine guilt and mete out punishment.
    • g., Hillary Clinton is “crooked.” Donald Trump is “deplorable.”
  • Deliberative Choice – Future – Argue about choices to help reach mutual goals.
• Questions for Jury: (1) who is to blame for what happened and (2) how do we prevent this from happening again?
• Stick to the facts. Any “fact” in the future is objectionable speculation.
• Never preach to the Jury. They will decide against you if you do.
• Never debate the undebatable. A juror is never going to change his/her morals based upon anything you say at trial. Instead, use their moral compass to lead them to the verdict you desire.
• What is “irrefutable”? It is something with three characteristics: (1) permanent; (2) necessary; and (3) undeniably true.
• Morals are inarguable. It is what is permanent, necessary and reliably true.
• If you want the Jury to make a choice, talk about the future. Choice is the central issue.
• Aristotle’s Big Three: Argument by (1) Ethos – Character; (2) Pathos – Emotion; and (3) Logos – Logic.
• Cicero: Humor is an effective debate tool.
• Ethos – Employs the advocate’s (1) personality, (2) reputation, and (3) trustworthiness. These are arguments appealing to the gut instinct of the Jury – tells them whether they can trust the advocate.
• Logos – These are arguments following rules of logic, tracking what the Jury is thinking. These are arguments appealing to the intelligence of the Jury – tries to sort the facts.
• Pathos – These are arguments appealing to the heart of the Jury makes them want to take action.
• These three (Ethos, Logos and Pathos) work together in harmony to make a persuasive argument.
• A sterling reputation is priceless. How a person’s life is lived persuades better than his word.
• Cicero: A genuine emotion persuades more than a fake emotion.
• Ask yourself always:
  • Do my points make logical sense?
  • Will the Jury trust what I say?
  • How can I get the Jury motivated to render a verdict in my client’s favor?
• Use your opposing counsel’s words against them at every opportunity.
• Concede points promptly where/when necessary. Concession is so refreshing to the judge and jury. It takes the fight out of an argument and thoroughly rattles your opponent psychologically.
• Never get emotional. Make your arguments and always act professionally in such a manner that even your opposing counsel would want to buy you a beer after the case is over.
• Nudge the conversation always in the direction you want the Jury to go.
• Sympathize with the Jury and then, with your argument, lead the Jury emotionally where you want them to go. Over-sympathizing, however, equates to ridicule. So, be careful walking that tightrope.
• You must thoroughly know and understand your opposing counsel’s position.
• Goal – get the Jury to like you. Become a walking, talking consensus of the Jury.
• An ethical person meets the Jury’s rules and values.
• Ethos – fit in with the Jury’s expectations.
• An agreeable ethos sets the tone for the Jury’s expectation of a leader’s (1) tone, (2) appearance and (3) manners. Romans called this “rhetorical decorum.” Decorum tells the Jury, “do as I say and as I do.”
• Make sure you always dress slightly better than the best dressed juror. Why? You want them to respect you by your appearance, and a nice suit does that. But, you do not want to dress too wealthy, or the Jury will resent you. Shoes are key. If an attorney has poor quality shoes, it does not matter how expensive the suit.
• Act the way the Jury expects you to act and not like the average juror acts. You must be more.
• Every era has its rules. We must continually adapt ourselves to those “rules” as we grow older so as to always maintain the proper decorum.
• Manners – ways by which we treat one another.
• Decorum follows the social mores of that particular jurisdiction. Mississippi if certainly far different than California.
• You cannot be indecorous and persuasive at the same time. They are mutually exclusive.
• Deliberative argument is about choices, not truth.
• Discretion is the better part of decorum.
• What does this particular Jury expect? No one argument works every time. You must adjust your presentation to fit that particular venire.
• The Jury must become comfortable with you.
• Cicero: You cannot play a character for the Jury that strays too far from your own.
• Decorum – art of the appropriate
• Always dress one step ahead of your station in life. Look the way the Jury would expect and want you to look.
• Decorum is an aspect of sympathy.
• Adjust your presentation to the Jury’s beliefs and values. Use appropriate language for that particular venue. Just observe how a politician adapts his dress, style, and mannerisms depending on the crowd.
• Persuasion is power and requires sympathy. It is being true to your audience.
• Decorum is difficult, especially in today’s age when everyone mimicks one former president’s outlandish behavior. But, decorum always eventually commands respect. Michelle Obama: “When they go low, we go high.”
• Get the Jury to identify with you, and you have won half the battle of persuasion.
• Look to the United States Senate for examples of decorum, to wit: “Introducing the distinguished Senator from the great state of ______.” Regardless of party affiliation, U.S. Senators treat each other with respect at all times.
• You earn the Jury’s love through your decorum (actions speak louder than words).
• The perfect Jury is (1) receptive – sitting still, (2) attentive – willing to listen to what you have to say, and (3) well disposed toward you – like and trust you [most important of 3]. All three require argument by character.
• Aristotle: The Jury must trust your judgment as well as your essential goodness.
• A Jury will not follow you to an irrational verdict, even if they do like you.
• Your Jury must consider you a good person who wants to do the right thing.
• Aristotle’s three (3) essential qualifications of a persuasive advocate: (1) Virtue / Cause – Jury believes you share their values; (2) Practical Wisdom / Craft – You appear to know to do the right thing on every occasion; and (3) Disinterest – The Jury’s interest(s) are paramount.
• Be virtuous in your argument by embodying the fundamental values that bind us together as a people and a nation.
• Values change from audience to audience. Determine the Jury’s values and live up to them.
• Whenever you see a member of the venire acting irrationally and then passionately defending their irrational behavior, look for an underlying virtue they feel they must defend at all costs.
• Rhetoric is about: (1) awareness; (2) attitude; and (3) technique.
• Erudition is the goal.
• Always get others to brag for you. Never brag about yourself.
• Reveal an appealing flaw in you that evokes empathy from the Jury or shows the sacrifice you have made for the cause.
• Goal: Become an exemplar of the Jury’s values.
• Do not recite your resume to enhance your ethos. People detest prideful people. Let your references be the messenger. Just look at John McCain. He never ever bragged about his heroism or military service.
• Always identify with the Jury.
• If an alternative theory of the case emerges during trial, feign to the Jury that this was your theory of the case all along.
• When an argument is doomed to go against you, heartily support the opposing position. Make an inevitable decision against you look like a voluntary concession all along.
• Rhetorical virtue is the appearance of
• Practical wisdom: the Jury thinks you know your craft and can solve the problem at issue.
• Three traits of ethos: (1) cause; (2) craft; and (3) caring.
• Craft: the appearance of knowing what to do.
• Before you can persuade the Jury, you must mine your most precious resources, the potential jurors during voir dire.
• Persuasion starts with sympathizing with what the members of the venire believe.
• Before the members of the venire follow you, they must find you are a person worth following.
• Sharing the same values as the members of the venire is insufficient. They must also believe you know the right thing to do at the moment.
• The Jury must consider you a sensible person as well as sufficiently knowledgeable to deal with the problem at hand. In other words, the Jury must believe you are a master of your craft.
• Juries favor successful businesspeople and doctors.
• Craft = Instinct of making the right decision on every occasion, i.e., flexibly wise leadership.
• Craft – Practice and hone your craft to such an extent that it becomes instinct.
• Disinterest – Make your audience believe in your selflessness by either seeming wholly objective or nobly self-sacrificing.
• Cicero: In order to maintain your objectivity, seem to deal reluctantly with something you are really eager to prove. Make it seem as though you reached your opinion only after overcoming overwhelming evidence.
• To get the Jury to trust you on your decision(s), you can employ 3 techniques:

1. Show off your experience – If you are debating a war, e.g., and you are a war-time veteran, bring it up. It is fine to brag about experiences, just NOT about yourself.
2. Bend the rules – If the rules don’t apply, then don’t apply them.

• Seem to take the middle course – Juries always like to make decisions that lie in between extremes. It helps the Jury to become convinced that your adversary’s position is an extreme one.
• Every proposal should have 3 parts:

1. Payoffs;
2. Doability; &
3. • Describe the benefits of your choice.
   • Make it seem very easy to do.
   • Show how it beats the other options.

• Rhetoric is most effective when it leads an audience to make up their own minds.
• Show the Jury you care.
• Aristotle: Disinterested goodwill – combines selflessness and likeability.
• The persuasive attorney makes the Jury feel that he feels their pain too while, at the same time, remaining disinterested and (simply & effectively) doing his job.

• Times always change, so you must stay abreast of current societal perspectives. For example, Alexander Hamilton would have thought it strange that we now “worship” the ultra-wealthy, for back in the founding father’s time, this meant you were “interested” (i.e., corrupt, profiting at the expense of others) when the founding fathers were trying desperately to appear “disinterested.”
• Feign that you once embraced the opposing party’s position or theory of the case. Then explain to the Jury how their theory of the case just does not work. The JY will think: “What a fair-minded person.”
• Act as if you felt compelled to reach your client’s position or theory of the case, despite your own desires, because it was the right decision.
• Ethos counts more than any other aspect of rhetoric because it puts your JY in the ideal state of persuade-ability.
• Cicero: You want the JY to be attentive, trusting and willing to be persuaded.
• The JY will most likely listen to you if they find you worthy of their attention.
• You want the JY to consider you to be a role model, the essence of leadership.
• An argument rests on what the audience believes and NOT on what is true.
• Abraham Lincoln: Dubitatio (Latin for acting dubious) – Don’t be tricky. Seem to be in doubt about what to say.
  • Don’t try to calm your butterflies. Use them. An audience always sympathizes with a clumsy speaker. It is a tactical advantage. Then, gradually speak louder. You will seem to the JY as if you are gaining confidence due to the sure righteousness of your speeches’ contents. This is a cure for stage fright, and it absolutely works.
  • While the audience must think you have all of the righteous attributes, that doesn’t mean so in reality. We are all flawed.
  • The best trick of all: Make it seem you have no tricks.
  • Abraham Lincoln: Set your audience’s expectation very low. For example, Lincoln spoke with a characteristic high pitch whine and talked always about the nation being in a problematic state. So, expectations were so law from the inception that he could only build from there. As his voice became louder, he drew his audience’s attention to his key points.
  • Research results show a knowledgeable audience tends to sympathize with a clumsy speaker.
  • George H.W. Bush was also a master of Lincoln’s dubitatio. Blue staters mocked President Bush for his “Bushisms” like “nucular”, while the rest of the country grew to love him more and more.
  • When you give a talk to a group, begin hesitantly and gradually get smoother as you go. Grab the JY’s attention by the conclusion of the first 5 minutes. After that, research shows that everyone’s mind drifts onto other things.
• Never use an opening joke.
• JYs crave authenticity. In this digital age where everything is simulated and unrealistic (e.g., movies), they crave something authentic that looks genuine.
• Authenticity lies at the heart of rhetorical character.
• Look at Woody Allen. His brilliance always gets (intentionally by him) overshadowed by his fallibility.
• NB: The JY must never know your rhetoric’s inner workings.
• Don’t rest on your personality and reputation. You perform them.
• You can start fresh with your cause, craft and caring in every argument.
• Ethos: Pay attention to the JY. Share in their ideals and values. This makes you agreeable, both literally and figuratively.
• Even in ancient Greece, the audiences preferred plain speakers over the fancy speakers.
• Caring or disinterest is the appearance of only having your JY’s best interests at heart, even to the point of sacrificing for the good of the others.
• Reluctant conclusion: Act like you arrived at your conclusion only due to its overwhelming rightness.
• Claim that the choice will help your JY more than it will help you. Even better, maintain that you will actually suffer from the position.
• Dubitatio: show doubt in your own rhetorical skill. The plain spoken seemingly ingenuous speaker is the trickiest of all in that he is most believable to the JY.
• Authenticity: Make your JY think you are for real, just being your genuine loveable self.
• The Aquinas maneuver: Control the mood. The most persuasive emotions at your service.
• A great orator not only expresses his emotions to the audience, but he also wholly manipulates the emotions of his audience simultaneously.
• The speaker has 2 burdens: (1) burden of proof and (2) burden of emotion.
• An empathetic person suffers when other people suffer. In a study of schools, parents and teachers found they preferred students who displayed feelings of empathy over children with good grades.
• Sympathy means perfectly understanding another person’s emotion without actually feeling it.
• Empathy shares feelings.
• Sympathy cares about feelings but does not share them.
• Pathos affects the JY’s judgment. The limbic system tends to overpower the rational, logical aspects of the brain.
• Storytelling appeals to all aspects of emotions.
• Emotions are linked to the familiar.
• Emotional volume control: Don’t visibly exaggerate your emotions. Let the JY do that for you. When you argue emotionally, speak slowly and control your volume.
• Let emotion build gradually.
• Emotion works best at the end of your speech.
• Start slow and let your volume increase during the course and scope of your presentation.
• Fear compels people to act, and compulsion precludes a choice. Then, people are acting on basic instinct.
• Show your opposing party as dismissing the JY’s desires and belittling your cause.
• Humor ranks above all other tools in persuasiveness in part b/c it works the best at improving your ethos. A sense of humor not only calms the JY down, but it makes it seem as if you are above petty squabbles which consume your opposing party’s theory of the case.
• The problem with humor: It is awful at compelling the JY to take any sort of action. When people laugh, they do not want to do anything else.
• Aristotle: Sorrow, shame and humility prevent action altogether and make the JY introspective, feeling sorry for themselves.
• Aristotle: Joy, love, esteem and compassion – the JY revels in them.
• You want the JY to identify with you and through you take the action you desire them to take.
• The kind of anger that comes from belittlement is especially useful. If you want a client to take some sort of action, demonstrate to that potential client that the opposing party did not take him/her seriously, thus belittling them in the process. Belittlement leads people to demand an apology.
• Anger gets the fastest action, which is why political advertisements try to get you mad. However, anger is the worst emotion for deliberative thought. People get instantly angry at such items, but it isn’t lasting.
• Emulation: Emotional response to a role model. It arises from our need to belong. In order for emulation to work, you must start with a model the JY already looks up to. Provide only the kind of role model the JY already admires. People imitate what they see.
• By giving advanced warning of an emotion, you inoculate the JY from it.
• The unannounced emotion – Don’t advertise a mood. Invoke it.
• Nostalgia – Promise a return to a perfect past. This is how Trump won the Presidency: “Make America Great Again!” Brexit: “Take back control.”
• Nostalgia is a yearning for simpler and better days gone by. Colleges and universities do this better than anyone in order to solicit donations from alumni/ae who reflect fondly on years gone by. It is no accident that alumni/ae events at colleges and universities are called “Homecoming.”
• Desire/Lust: Exploiting your JY’s lust for something into taking action. It is the spoonful of sugar which sweetens your logic. Crudely, this is why product manufacturers use women in bikinis to sell their products. Desire is not all about sex. Some gardeners lust after the perfect rose, e.g. People have different desires, and different desires lead to different actions. It provokes your audience to take action.
• Emotion makes the difference between agreement and commitment.
• A well-told narrative gives the JY a virtual experience, especially if it calls on the JY’s past experiences and you tell it in the first person.
• Volume control: You can best portray an emotion by underplaying it, seeming to struggle to contain yourself.
• Simple speech: Do not use fancy language when you get emotional. Plain speaking is more pathetic.
• Anger often arises from a sense of belittlement. You can often stir a JY to action by demonstrating that your opposing party does not have any regard for their emotions.
• Nostalgia uses a yearning for the past, especially to days when your future seemed so bright.
• Persuasion gaps: First find them. Then fill them with a desire for the JY to be persuaded in your client’s favor.
• Turn the volume down. Use a passive voice. Act as if things happened on their own. The technique works to calm the emotions because it disembodies the speaker and removes the actors from the equation as if what happened was an act of GOD.
• The passive voice calms the JY. The technique serves to take emotion out of the argument.
• Just do not use the passive voice when you are the culprit because then the Judge or JY will think you are trying to weasel out of something you have done.
• When a juror’s brain is on auto-pilot, he/she is more susceptible to persuasion.
• The brain essentially operates in 2 gears: (1) auto-pilot, operating instinctively; and (2) thinker – one who cogitates, working on the hard problems, asking questions and figuring things out. (2) is skeptical at what you say.
• To appeal to (1) – keep everything simple. The moment you begin to confuse someone, (2) arises. Use simple language and avoid jargon. Keep your sentences short. Stick to plain, honest language. At the same time, give the JY power by allowing them to make the choice (in your client’s favor) so they remain on auto-pilot and empowered to render a decision in favor of your client.
• People frown when they are thinking, thus letting you know that (2) has kicked in. In order to prevent this from happening, smile frequently. It is disarming and will keep the JY on (1).
• Well-timed humor relaxes the JY’s emotions and releases anxiety. However, if you are not humorous, do not try. It must come naturally. Do not force humor. Just be ready for every opportunity to insert humor, where appropriate.
• Winston Churchill: When the opportunity arises, agree with your opponent if you can use that point against your opponent’s argument. Process: (1) accept your opponent’s point at face value and (2) follow its logic to a ridiculous conclusion or simply throw it back at your opponent with a twist.
• Never make jokes about (1) a shocking crime or (2) a pitiful victim.
• With your clients, use a screw-up to strengthen your relationship. First, tell your client you wanted to be upfront and be the bearer of bad news. It shows you are forthright. Then, detail what you have done to fix the problem. Finally, state how angry you are for not living up to your usual standards.
• Keep the JY in an easy, docile and instinctive state so that your argument will be digested more easily.
• Base your argument on what is good for the JY, not for you. Attorneys often pitch an argument that is good for themselves and not for the target audience, the JY. You need to convince the JY that the choice you offer is the most advantageous to the JY, not you or your client. The advantageous = giving the JY an outcome it values.
• While the decision is up to the JY, the burden of proof is on you. To prove your point, start with something your JY believes or wants.
• An unpersuadable audience tends to repeat the same rationale over and over. It does not matter whether the rationale is good.
• Use commonalities as the jumping off point for your argument.
• Before you begin your opening statement, use voir dire to determine what your JY is thinking and what their values and beliefs are. Once you can find the commonality/ies of your JY as a whole, appeal to those shared values and beliefs throughout your trial.
• Commonalities represent opinion, not truth or fact.
• If you can define an issue that is familiar and comfortable to the JY, you will capture the higher ground. Find out, through voir dire, what does your JY hold most dear.
• Frame your issue so that it is well-defined for the JY. It sets the bounds of discussion and stops your opposing counsel from redefining your issue. You define the issue in your terms.
• Metastasis – Skipping over a difficult topic.
• In framing your issue, you want to choose terms that favor you while putting your opposing counsel in a bad light. That means using words that already contain a big emotional throw-away with the JY (e.g., “good heart”, “robust”, “relate”, “learning experience”, “traumatized”)
• Your job as a trial attorney is to find the commonalities among the individual jurors during voir dire, issues or topics or ideas that appeal to most/all of the JY.
• Do not narrow the issue too much. Frame the issue in terms of values everyone shares.
• Redefinition: Do not automatically accept the definition your opposing counsel attaches to a word. Redefine it in your favor. That way, you sound as if you agree with opposing counsel’s argument while you cut the legs out from under it. Redefining to a lawyer must become a matter of instinct. Bill Clinton: “Please define what the meaning of the term ‘is’ is.” When redefining, redefine the connotation of the word, not the dictionary meaning of the word.
  • Examples:
  • “Liberal” :
    • Conservative: “Liberal means tax and spend.”
    • Liberal: “Liberal means redistributing assets from the rich to help the poor.”
  • “Tort reform”:
    • Conservatives: “Frivolous lawsuits”
    • Liberals: “Providing everyone equal access to justice”
  • Make sure the definition you start with works in your favor.
  • When you drop a term to the JY, define it. Using obscure words does not show you are educated.
  • Redefinition jiu jitsu: Accept your opponent’s term and connotation. Then define it as a positive thing.
  • If your opposing counsel labels your argument, or a portion thereof, as “unoriginal”, embrace it and state you are using it because it is a time-tested, proven method that works.
  • When you frame an issue, use key words therein that you can use repeatedly throughout the trial. The JY will automatically remember the issue as you have framed it. Repetition is key.
  • Define your client’s position with a term that contrasts your opponent’s.
  • Make your opposing counsel’s most positive terms from their framed issue look like negatives. But never engage in personal attacks!
  • Use contrasting terms that make your opposing counsel look bad.
  • Argue that your opponent’s argument is less important than it seems or claim your opponent’s point is irrelevant.
  • Dialectic: Strictly logical argument which is mathematical and formulaic. While it trains the mind and can help you spot fallacies, it is too rule bound to help you in an argument.
  • The opinion of the JY is more important than the facts. What the JY thinks is true is “the truth” for purposes of your trial.
  • Syllogism: All men are mortal. Socrates is a man. Therefore, Socrates is mortal. Another example. All democrats are “tax and spend liberals.” My opponent is a Democrat. Therefore, my opponent is a “tax and spend liberal.” [It is deductive logic. Formula: Fact 1. Fact 2. Conclusion must be true because of Facts 1 and 2.]
  • Inductive logic works the opposite way, taking specific cases and using them to prove a premise or conclusion. Socrates, Aristotle and Plato all are dead. Therefore, all humans are mortal.
  • Deductive logic starts with the general and works toward the specific. The premise proves the examples.
  • Induction starts with the specific and works to the general. The examples prove the premise.
  • A premise is something the JY either knows or believes.
  • Proof consists of examples or a premise. Premise usually begins with “because” or implies it.
  • Inductive logic follows a trail, picking up clues that lead to the end of an argument. Deduction logic uses a common place as a takeaway to apply to an example. Deductive logic: premise, therefore conclusion. “You believe this, so you should do that.” Induction uses examples for its proof instead of common places. Induction is great when the JY’s common places don’t work for your case.
  • You can use both inductive logic and deduction logic to make a really strong point. In such cases, you use both examples and premise. Work up a logical outline. First construct a theme that the JY believes in that sums up your client’s case. The rest of the outline lists the facts and compares your argument to opposing counsel’s. Include at least 1 anecdote that sets forth your point on the micro level. President Ronald Reagan used this method frequently in his presidential speeches.
  • The most persuasive litigators are comfortable in their logic.
  • The most insidious fallacies are the ones that seem valid on their face, until you take them apart.
  • All logical fallacies boil down to bad logic.
  • To determine if a fallacy lies in an argument, ask yourself 3 questions: (1) Does the proof hold up?; (2) Am I given the right number of choices?; and (3) Does the proof lead to the conclusion?
  • An ability to detect a fallacy helps defend yourself against your opposing counsel’s argument.
  • Fallacy contains: (1) false comparisons; (2) bad examples (when there are more examples available and not being made known to the JY); (3) ignorance as proof (e.g., the lack of examples somehow proves something – which is absurd).
  • Deadly sins: (1) false comparison; (2) the bad example (there is a disconnect between the examples tendered and the choice; the examples do not support the offered choice); (3) ignorance as proof (i.e., what we cannot prove cannot exist); (4) the tautology (i.e., the same premise gets repeated over and over again in different words – they agree because they are the same thing); (5) the false choice (JY being given less than all of the choices available; (6) the red herring (it switches issues in mid-argument to lead the JY off topic – example: Johnny Cochran’s use of the glove in the OJ Simpson trial); and (7) the wrong ending (slippery slope – If we allow this reasonable thing, it will inevitably lead to an extreme version of it).
  • Name the fallacy to the JY.
  • Reductio ad absurdum: Boil your opponent’s argument down to an absurdity or an absurd result.
  • Fallacy of antecedent: (1) It never happened before so it will never happen; or (2) It happened only once so it is unlikely to ever happen again.
  • Common fallacy – Post hoc ergo propter hoc: After this, therefore because of this. The reason this followed that does not lead to the conclusion that this caused that.
  • Never argue the inarguable. Untenuous arguments always lead to an illogical conclusion.
  • Show yourself to be a better person than your opponent. Do this by showing little negative emotion. Seem slightly disappointed in your opponent, which the JY will pick up on and root for you.
  • Dress well. Clothes really do “make the man” and cause the JY to respect you more.
  • If you are boring, you will lose the JY’s attention.
  • Keep attention to words that do not make logical sense in your opponent’s argument and seize the opportunity to use them in their logical sense to strengthen your argument and weaken your opponent’s argument.
  • Use word play when you can. For example, “Wall Street” connotes financial industry throughout the United States. “Main Street” connotes family values and middle-class America.
  • Never use profanity. It takes the worst curses we have and places them upon a person. It is wrong, offensive and makes you appear foul and unclean to the JY.
  • Worlds evolve over time. The word “negro” is Latin for black. Back in time, when Huckleberry Finn was written, the word “n****r” was used with great frequency throughout the book, and at that time in history, the word did not spark racial division as it does now. Today, it is absolutely improper. Be cautious with words you use as they change over time.
  • To this day, words summon the power of belief, expectation and identity in your JY. Use them carefully.
  • Get the JY to identify with your position, i.e., the people and things your JY identifies with so that you can become their ideal leader. They will start thinking of your choices as their choices. People are tribal and naturally hate being left out. If you get the majority of the JY on your side, the rest of the JY will naturally want to change their position to fit in with the larger group.
  • Favor the present tense and use terms that appeal to a large demographic.
  • “I understand”, “peace”, “security” and “protecting” are all words that make the JY feel naturally safer and more secure/comfortable with you.
  • Use shared values to create a common identity with your JY. “We are called together to make our community a better place.” – President George W. Bush
  • Repeat terms that represent the opposite of the weakness of your case and the strength of your opponent’s argument.
  • Use a heavy dose of logic spiked with shared values.
  • Avoid denying-type words because they hurt your argument. For example, if you say to a child, “I am not a crook” (President Richard Nixon), reinforces the belief that Nixon is a “crook.” Another example, Queen Elizabeth – “We are not amused.” in lieu of “We are appalled.”
  • Make the JY identify with your choice.
  • Use language that makes the JY feel most comfortable and secure in their verdict.
  • Aristotle: Logic works best in an intimate setting instead of with a large crowd.
  • Salaries show concretely what professions we value in society.
  • Have an outline of your argument and stay on point. Human minds naturally wander. You need to stay on point at all times. Do not digress and thereby distract your JY.
  • The point is identity, to make everyone in the JY want to belong by collectively embracing your choice.
  • Code language – words that trigger an emotional response.
  • Action requires commitment which requires emotional power.
  • Code inoculation – list the code words that appeal to you so you can be conscious when your opponent uses them.
  • Ideas become belief when the JY identifies with them. By doing so, the JY will identify with you, and then with your choice (as one that helps define them as a group).
  • Do not use irony. It polarizes part of your audience, thereby tearing the JY apart from a cohesive group to a divided one, thereby hurting your case.
  • Apology in Greek: to defend yourself with rhetoric.
  • Our first instinct when we make a mistake is to get defensive. Don’t. First, be first to admit your mistake. Readily acknowledge it. I screwed up, but here are choices that can fix my mistake so that it does not happen again. Focus then becomes on the future, not the past. By doing so, you enhance your ethos with the JY. Your job is not only to recover your reputation but to enhance it: more trustworthy and likeable than you were before you screwed up. Demonstrate you know how to fix things and show you are adaptable. You need to show that you care by fixing the problem. It shows you exemplify goodness demonstrating essential values.
  • Anger comes from belittlement. People get angrier when you respond badly and dismiss their feelings. It makes the JY feel belittled, and they will turn on you.
  • Apologies don’t work because they make you look and feel less and does not draw the JY closer to you. An apology focuses in on the past, does nothing to fix the problem, and delays your opportunity to quickly repair the problem.
  • When you own up to falling short of your own expectations, you emphasize your high standards. Focus on your high standards, and you can actually make your ethos bigger to the JY. Say you are sorry, and you shrink.
  • People will go to almost any lengths to protect their own identity – how they see themselves in their mind’s eye.
  • Look for those fleeting moments when there is an opening for persuasion. Seize it. Exemplify your decorum and lead the JY toward your proposed verdict. For example, Stalin would sit silent at the Politburo until the end of the meeting with his command staff. Then, he would weigh in on the choices presented by tendering his argument as to why that was the logical choice.
  • The last speaker has the persuasive advantage. Take advantage of this by restating positions, including your opponent’s. Then drive home your choice as being the only reasonable one.
  • If your opponent’s position is weakening as the case wears on, now is the time to strike and never relent until the conclusion of the trial.
  • The time is right when the circumstances of the trial visibly change the JY’s mood.
  • Belief or expectation enhance people’s moods.
  • People are more receptive when they are hungry. Use this to your advantage. Prior to lunch during your trial, make some of your strongest arguments. This is why realtors encourage sellers to cook bread or cinnamon rolls when holding an open house.
  • Have a positive attitude – positive to the point of appearing disillusioned. It is captivating. President Bill Clinton did this in the Democratic primaries all the way through seizing the presidency.
  • Watch your conduct and behavior at all times. The JY is always watching you, whether you realize it or not. They are evaluating you to see if you are someone worthy of earning their trust.
  • Make your points using as few words as possible. Be concise and succinct.
  • Human communication is almost entirely logical. Yet, people need ethos and pathos in order to connect with you. That is why business professionals fly all over the country to hold in-person meetings rather than Zoom or conference calls. Eye contact, purposeful bodily movement, and well-timed silence all combine to have a profound impact on your audience.
  • Sight is mostly pathos and ethos. Hearing is almost entirely logos.
  • Cicero’s 5 canons of persuasion: (1) invention; (2) arrangement; (3) style; (4) memory; and (5) delivery. This is the order you must use to make a speech. First, invent what you intend to say. Second, decide what order you want to say it in. Third, determine how you will style it to suit your audience. Fourth, memorize your speech or, better yet, outline it so that you stick to it. Finally, get up and wow your audience.
  • Refer to respectable sources so you sound like you have authoritative support for what you are saying. Then coyly ask: “Who am I to question such authority?” It makes you appear that you are wearing a cloak of modesty.
  • Instead of sitting down at a computer or in front of a legal pad to jot out your argument, take a long walk and think on it for a while. Then return to your office and write down the rough draft of, e.g., your opening statement.
  • What is your goal? To change your audience’s mind, mood or its willingness to do something.
  • If the issue is complex, break it down into a series of smaller issues for the JY.
  • Always be prepared to argue both sides of the case. That way, you know what your opponent is likely to argue, and you can then be prepared to challenge the foundation upon which your opponent’s argument is built, thus totally dismantling it.
  • When trying a case in a foreign venue, you must spend some time there learning about the people from which your JY will be formed. People in New Hampshire (“Live Free or Die”) have wholly different values and beliefs than people in neighboring Vermont (“Freedom and Unity”). The people in NH are conservative and property rights advocates. The people in Vermont are welcoming and value unity of their communities.
  • Arrangement must be in the following order: (1) ethos; (2) logos; and finally (3) pathos. Start by getting the JY to like you through your shared values, your good sense and your concern for their interests, thus making them identify with you and earning their goodwill. Then, launch into your argument stating the facts, making your case, proving your point logically and refuting your opponent’s argument. Don’t startle your JY with “believe it or not” facts. This part must be predictable, usual, expected and natural. List the points where you and your opponent agree and where you disagree. This is where you can inject definitions into your argument as well. This case is an “ethical issue” or a “fairness issue”, for example. End by getting your JY enthused to render a verdict in your favor.
  • When you refute your opponent’s arguments, you must utterly obliterate them. Leave no stone unturned.
  • Use proper language: words that suit the occasion and the audience.
  • Decorum: the art of fitting in.
  • Vividness: Does your argument impact all of the JY’s senses?
  • It is better to avoid gestures altogether than to use the wrong ones and potentially offend a juror.
  • When you are nervous and have butterflies, speak loudly. Your voice will appear confident.
  • By putting the proof before your conclusion, you turn an argument into a story while discovering your point along with the JY.
  • Use your opponent’s beliefs, expectations and desires as a tool which you can then leverage to bring the JY to your side. “Is the world a better place if you were to render a verdict in favor of my opponent?”
  • Refute your opponent’s position with facts in your client’s favor. Don’t condemn the opposing side. But you can express your disappointment that your opponent reached that position considering all of the facts.
  • Establish your character at the beginning of your argument. Then link your character to the “American way.”
  • End your argument with both a summary and a call to action.
  • Draw the scene so vividly with word imagery that the JY can experience the event for themselves.
  • Your frame is what your argument is about. If you have trouble with this, start with “This case is about…” It lets you cut to your theme and its implications for the JY.
  • Make something seem impossible by connecting it in the JY’s eyes to something else that is known to be impossible.
  • Create the moral center and frame of your argument by starting strongly in the first 12 seconds.
  • Humanism: The belief that society can get together and solve societal problems on their own.
  • The tactical flaw: You gain the JY’s sympathy through your own imperfection. In a speech, your own nervous butterflies can serve as the foundation for your obvious flaw. You make your JY feel like you are one of them, for we are all imperfect as human beings.
  • Never dictate to the JY. You will lose them. No one wants to be told what to do or to be talked down to.
  • A winning argument tells a story and has a setting, conflict, suspense and an epiphany.
  • What are the goals of your argument?:
    • Change the JY’s mood?
    • Change the JY’s mind?
    • Get the JY to do something?
    • Fixing blame on someone or something?
    • Bringing the JY together with an argument about values?
    • Talking about a decision that was previously made?
  • Dress at the level you aspire to.
  • When speaking with a client, identify what his/her/its desires/needs are and make a pitch to that.
  • Idiom: A rich set of words that convey a single meaning.
  • When you cannot refute your client’s argument, change the issue and argue that new issue as being more important and decisive of the issue than your opponent’s argument.
  • Value-laden terms carry more weight than logical terms do.
  • John Milton: Where there is much desire to learn, there of necessity will be much arguing. For opinion in good men is but knowledge in the making.
  • Cicero: A good oration should flow naturally from part to part.
  • Narration uses storytelling to relay the facts of your case to your JY in an interesting way.
  • Values cannot be the sole subject of deliberative argument. Eventually, a deliberative argument has to deal with black and white, not grey.
  • If your values differ from the JY, you need to gently lead them there bit by bit until they slowly agree with each step until the JY reaches your verdict.
  • Public opinion is democracy’s ultimate boss.

-Posted from the book “Thanks for Arguing” –  Jay Heinrichs

Winning at Trial using Sun Tzu’s the Art of War

The trial lawyer convinces the hostile witness that he knows the darkest, deepest secrets about the witness. He uses social media and other investigative techniques to cover impeachment material and lets the hostile witness know it. At the same time, the trial lawyer appears deceptive about what he knows. All of this keeps the opposing counsel and the hostile witness in check. They know if they challenge him, he will reveal their deepest, darkest secret in open court to their utter and utmost embarrassment and humiliation.

The trial lawyer will let expert witnesses think he is an unprepared fool. He will allow the expert witnesses to bolster themselves, exaggerate and make broad generalizations. He will then use their own textbooks, training manuals and policies to show they are incompetent, biased and lazy.

The trial lawyer is always in control of his: (1) mind, (2) body and (3) emotions. He never loses his temper. He understands that juries do not like people who are arrogant and rude.

In front of the jury, the trial lawyer is: (1) polite, (2) professional and (3) competent. At the same time, he seeks to exploit his opponent’s arrogance.
The trial attorney will often irritate a hostile witness outside of the courtroom so they become even more hostile. When that witness enters the courtroom, they will appear hostile and combative right away, but the jury will not know why. Thus, that witness will appear biased and unlikeable to the jury. The jury will never trust that witness.

On cross-examination, the trial lawyer remains calm and polite. The trial lawyer will feign that he is weak before the hostile witness, to wit: (1) bumbling, (2) inept and (3) confused.