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.
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.
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.
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.