August 27, 2015 Articles

A Talk with Two Trial Lawyers on the Art of Oral AdvocacyNew

By Lindsay Breedlove

Paula Hinton grew up watching her father try cases in North Alabama. Now a partner in Winston & Strawn LLP’s Houston office, she is as comfortable talking to a jury in a packed courtroom as she is being interviewed for an ABA publication. And the stories she tells, no matter the situation, keep the audience engaged and wanting to know more.

Lucia Coyoca, a partner in the Los Angeles office of Mitchell Silberberg & Knupp LLP, tested her chops in front of a jury only a few years into her career. The balance she strikes between assertiveness and respect for the tribunal resulted in many more opportunities to try high-stakes cases and has won her acclaim as a leading trial lawyer in the entertainment industry.

I recently spoke with Hinton and Coyoca about their respective oral advocacy styles and recent high-profile victories, in order to learn from our profession’s best about what makes a great oral advocate.

The Importance of Being Authentic and Well Prepared
Hinton and Coyoca both have had fantastic success in the courtroom, and they’ve done so by being true to themselves. Hinton emphasizes “honesty and sincerity” in her style, noting that “with respect to talking to a jury, honesty and sincerity are absolutely essential.” Hinton’s distinctive southern lilt has prompted some to call her style “folksy,” but she disagrees: “That’s just how everybody is here. My accent does not make me ‘folksy’; it makes me authentic because it’s who I am.” Coyoca has been equally true to herself, but with different result. She describes her style as “strong and assertive” but jokes that “someone might use a stronger word.” “That just fits with my personality,” she explains: “Don’t get me wrong, I think when you’re in front of a court, in particular, it’s very important to be respectful and deferential to the court, but I also think it’s important to set the tone of an argument, to show that you aren’t going to be talked over or interrupted.”

Although Hinton and Coyoca emphasize different characteristics in their oral presentations, their styles share a central feature: They both pride themselves on being extremely prepared. Coyoca even calls being well prepared the “most important part” of her style: “You’re more effective no matter the audience—an arbitrator, judge, or a jury—if you’re speaking to them, as opposed to reading something or tracking your outline too closely.” Hinton agrees, emphasizing, “I know my case and my facts, and I know my law. The first thing a judge will think is that I’m well prepared and that she can trust my representations about the cases and about the facts.”

Does being authentic and uniformly well prepared mean that Hinton’s and Coyoca’s styles remain constant no matter the audience? Not necessarily. Both agree that presenting to a jury merits slight tweaking to their respective approaches. Coyoca doesn’t tone down her assertiveness with a jury but notes that “it’s important to be likeable and accessible.” One way she does that is to “be very respectful of them and their time. I don’t belabor points that they’ve clearly gotten. A jury will get irritated with you if they feel like you’re wasting their time.” Hinton uses every opportunity she has in front of the jury to weave her story—“voir dire, my opening, the examination of witnesses, and in my closing argument.” Telling a compelling story often involves “providing the jury with context so that they can understand the facts and want to learn what happened.” In the environmental case she tried last fall, Hinton needed to take the jury back to Houston, Texas, in 1965: “The case related to some waste pits that were created in the 1960s before federal and state environmental regulations were very stringent,” she explains. When regulators later determined that dioxin had been stored in the pits, and that some of the dioxin may have escaped into local waterways, the county sought civil penalties against her client. Her first task was to “take the members of the jury, many of whom hadn’t been born in 1965, and place them into a world where there weren’t stringent environmental regulations.” To accomplish it, she showed the jury “a photograph of me as a little girl and as many photographs and demonstratives as I could get to show them what Houston was like at that point in time. That gave context to all of the relevant facts.”

Developing Their Respective Styles
Just as their styles differ, so too did their paths as they honed their skills. “The development of my style probably started with my father, a trial lawyer in North Alabama,” Hinton recounts. “He was my first and most significant role model. My style is very similar to his, very comfortable in a courtroom and talking to a jury.” And once she started practicing law in Texas, Hinton continued to absorb pointers from “terrific trial lawyers like Harry Reasoner and others, who have that honest, comfortable, credible style when they tell their stories in front of a jury. They are one with the jury, neither aloof nor removed.” Coyoca has had “some great mentors in [her] career,” but she has “never tried to emulate anyone else’s personal style. A style that’s very effective for one person wouldn’t necessarily be effective for me,” she says. Even so, she admits to being a “student of oral advocacy, . . . pick[ing] up pieces from watching other people.” But she emphasizes the importance of authenticity: “I’ve never intentionally tried to use someone else’s style.”

To become great oral advocates, both Hinton and Coyoca have seized every opportunity to practice. Coyoca describes a case she worked on very early in her career that involved a dispute about how to divide the profits from a successful motion picture as a “big turning point”: “I was on the defense team, and there were three different sets of lawyers for three different defendants. I did not expect to have any role at trial except backup work. But the defense team conducted jury research, and the jury consultants felt that the defense needed to present a more diverse set of lawyers to the jury. I was the only woman and the only person who wasn’t white, and a decision was made to have me deliver the opening argument and handle direct examination of some of the key witnesses.” The experience “otherwise would have taken [her] years to reach” and gave her “the confidence to be assertive about getting more of those opportunities. It really is a self-fulfilling thing. You’ve got to have the experience to sell the experience.” Hinton agrees, noting that she has “forced [herself] to say yes to opportunities to speak in front of groups, large and small.” “I volunteer for those opportunities, and I’m fearless,” she explains. “Any time on your feet is important time to get comfortable relaying a message and presenting points and become the storyteller who folks like to listen to.”

Both Hinton and Coyoca have had remarkable success in the courtroom. When asked about recent victories, Coyoca describes a trial she had in the summer of 2012 that resulted in a jury verdict of more than $50 million for her client, an independent film financier and business entrepreneur. “It involved breach of fiduciary duty claims that were asserted against in-house counsel who had switched sides to begin working with and feeding information to an adversary that my client was litigating against,” she explains. “Telling the story to nonlawyers was hard. Laypeople don’t necessarily appreciate the significance of a lawyer’s duties to his or her clients, and in particular, the sacrosanct duties of loyalty and confidentiality. I also had a concern that the underlying facts, which related to a complicated set of film financing transactions, would be hard to explain to a jury. Putting that whole package together and coming out with the verdict that we did was very gratifying.”

Hinton’s sincere style resulted in a positive outcome for her client at the environmental trial she had last fall. She recalls two particular facets of the trial where her oral advocacy skills served her particularly well: “I think my voir dire was critical to the ultimate outcome for my client in that case. It lasted an hour and a half or two hours, but during that time, I talked to almost every member of that panel, maybe 120 people. I got everyone engaged. I was pulling people out and making them talk about their prejudices and biases against big companies. I made people comfortable to come out and say whether they had predisposed notions about the case. The panel and I got energized during that voir dire.” She also had great success when she cross-examined another lawyer she’d known for almost 25 years: “I got up and said, ‘Now Ms. so-and-so, we’ve known each other for a very long time.’ She responded curtly, ‘we’ve met.’ And I said, ‘Well Ms. so-and-so, that’s not true, we’ve done a lot more than meet. We’ve been some of the few women trial lawyers in this community for almost 30 years.’ I had her destroyed with the jury at that moment because she played cute in an answer like that. That’s a lesson learned for lawyers on the witness stand—don’t be cute. Whatever she was testifying about, the jury didn’t believe her from that moment on. She gave me a present by being cute.”

Learning from the Best
Given their experience and success, I couldn’t help but ask for some advice, starting with some best practices specific to particular oral advocacy settings. When arguing a motion to a judge or arbitrator, Hinton emphasizes the primacy effect: “In the first one minute of your presentation, you have to give the judge a short summary of why she should rule in your favor. That’s essential. All of the studies show that it matters what people hear first. You can lose a judge (or a jury) right away if you don’t get their attention and make the case understandable from the beginning.” Coyoca focuses on the importance of being well prepared: “You need to be able to give the court everything it needs to make it as easy as possible to rule in your favor, to be the authority on whatever issue is being considered by the court, without being overly theatrical or disrespectful, so that the court looks to you for confirmation about the facts, procedural history, everything.” But don’t just be ready to talk; be ready to listen. “You have to be responsive to the court when it is your turn to argue,” Coyoca notes. “I’m not talking about just when you are answering the questions that are directed to you. I think it is equally important to listen to what the judge is asking opposing counsel or when the judge is making general comments about the issue so that you can try to anticipate where the judge is going with his or her analysis.”

With a jury, “you have to capture their attention and gain their trust from the get-go. Otherwise, you’ll never have them,” Hinton advises. You’ll be steeped in the case much more than the jury will ever be, so Hinton stresses the importance of “providing the jury with context so that they can understand and want to learn what happened.” Coyoca is “a big fan of using analogies to convey concepts to a jury, particularly in cases where the issues are complex or the industry terminology is opaque.” And being an automaton doesn’t work: “Exceptional oral advocacy to a jury can also allow a modicum of emotion to enter into a jury presentation in certain circumstances, such as closing argument, if it is appropriate based on the facts. But I think emotion should be used very, very judiciously by female lawyers. The only time that I will interject an emotion-based argument is when the facts really call out for it, and even then, the tone and style needs to remain strong, confident, and articulate.”

Don’t forget that exceptional oral advocacy is “a different animal” from written advocacy, reminds Coyoca. “In front of a judge or jury, whether the trier of fact decides to trust you isn’t based just on the words you’re using, but also on your demeanor. There are many more innate cues that fact finders are going to pick up on, and you can’t delete words you’ve already said or undo body language you’ve already embodied. You have to make decisions very rapidly about what’s likely to work and what’s not.” Hinton agrees: “Oral advocacy requires great listening and intuitive skills to know how to adjust your argument to fit the needs at the hearing. . . . There’s no dodging with oral advocacy—you have to answer the questions judges raise.”

Want more opportunities on your feet to develop your oral advocacy skills? “The most important thing is to show people you’re working with that you’re the best prepared on both the facts and the law,” Hinton says. “Offer to help with voir dire questions or the opening. Think hard about it and make the extra effort. Even if you’re not on your feet at the trial, show based on your preparation that if you’re given the opportunity, you’ll handle yourself the right way.” Coyoca agrees that “the only way to develop oral advocacy skills is to practice them over and over and over again, and the only way to really practice is if it’s the real thing,” citing adrenaline “to get you really focused on doing the absolute best job that you can.” Even so, she says, “it is very important for all of us, but particularly for women attorneys, to use strong oral advocacy skills when we’re dealing with our clients, with partners at our firm, really in any setting. Having strong oral advocacy skills is a way to command respect and to develop a reputation. If you’re known for being articulate and poised, you’re more likely to get recognized.”

Keywords: litigation, woman advocate, trial skills, oral advocacy, preparation

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