When you ask someone out for a date, do you use notes? When someone criticizes you, do you ask for time to jot a few things down before responding? Of course you don’t. I realize cases are more complex, but great advocates can argue without every word being read off a legal pad.
October 05, 2022 Practice Points
Judges Can Read: Argue Without Your Notes!
Working without a net: Tips for ditching notes
By Hon. Mark A. Drummond (Ret.)
A recent article about Damian Williams, U.S. Attorney for the Southern District of New York, sparked the idea for this column. The author outlined Mr. Williams’s skill in the courtroom and noted that he “became known as one of the few prosecutors [in his office] who appeared before juries without notes.” The article detailed Mr. Williams’s delivery of an opening statement “detailing the story of a powerful politician who had become blinded by greed.” The author observed, “Mr. Williams’s statement would run 22 pages in the official transcript. He used no notes.”
During the pandemic, I coached over 100 attorneys through NITA. Remote advocacy has spawned more rote reading. The notes are read directly off the screen. Even worse are multiple monitors. With the side monitor, I get the “mugshot” view, when down below I get the “drone” view, and when above (the worst) I get the “up the nostrils” view. This is not good for you or the judge. The judge is not the face on the screen. The judge is that little lens next to the green dot.
Instead of notes, the judge should be on full screen “speaker view,” eye level right in front of you so, as you talk to that lens (the judge), your field of view includes the judge. You see if the judge is flipping papers—meaning you may need to pause—or if he or she has a quizzical look that you may need to explore. So what tools can we use to stop reading in the remote world and the courtroom?
Mind-Body Connection
Sir John Gielgud was known for waiting to learn dialogue until he had stage direction. He needed to know where he would be on stage when delivering lines. This is the mind-body connection.
To make this connection, I do start with the written word. However, I say it out loud as I am writing. Why? We tend to write in a different manner than we speak. If I just sit at my desk and write in silence, I am wordier. My sentences are more complicated. I do not use the best words. “Know”—a word with power that I would use while speaking—suddenly becomes the more passive “aware of” on the written page.
Saying it out loud while I write results in better phrasing. If I write in silence, I do not get the rhythm or the natural pausing I use when speaking. Great advocates know that silence is their friend. Silence helps with emphasis and retention. The great pianist Artur Schnabel said, “The notes I handle no better than many pianists. But the pauses between the notes—ah, that is where the art resides!”
Use Your Phone
Once you finished writing while saying it aloud, grab your phone and start dictating segments that you can repeat easily. Leave enough silence between each segment so that you can say it back out loud before the next one. My largest line load on stage was as the narrator in the play version of A Christmas Story. I used this technique. Every day, while driving, my phone was with me, and I was practicing dialogue.
As advocates, we do not need to be as word perfect as actors. I am not urging that. However, these methods help you remember your major points, the rhythm, and the pausing. Abandoning notes and delivering perhaps only 80 percent of your words well is better than reading 100 percent of your words off a legal pad.
To be clear, I had notes at trial, but I could set them aside and concentrate on the judge or the witness.
Create Your Memory Palace
Moonwalking with Einstein recounts the author’s journey from reporting on the 2005 U.S. Memory Championship to winning it the next year. Speed cards require participants to memorize the order of a deck of cards. One method is to assign a visual to each card. The visualization Moonwalking with Einstein may represent, say, the three of clubs. It is easier to remember a crazy parade of pictures marching past than 52 individual cards.
We remember pictures better than we remember words. After writing the words as I speak, I then convert the written words into bullet points. Those bullet points are turned into pictures or visualizations. A picture is truly worth a thousand words.
For example, if the plaintiff did not go to a hospital immediately after the accident, in my notes I would draw a building, put a hospital cross on it, and then with a red pen draw a circle with a line through it over the hospital.
I then take my pictures and put them into my memory palace. Your memory palace is a visualization of a building you know very well—usually your own home. This technique works not only for opening or closing but also for witness examinations.
I remember the cross examination from a dart-out case decades ago. My client was fortunately driving very slowly when the plaintiff ran out from behind a parked car. So I visualized walking into my home and the floor is not wood. It is asphalt. The plaintiff is lying there. Her three friends surround her and shout:
“Sara, do you want us to call an ambulance?!”
“Sara, do you want us to take you to the ER?!”
“Sara, do you want us to take you home?!”
Sara responds, “No!” to each. Then one asks, “Well, what do you want?!” Sara jumps up, exclaims, “I want to go to McDonald’s!” and pulls out the largest McDonald’s sack you have ever seen. The wilder you make it, the better you remember it.
Cheat
To be clear, I had notes at trial. With these methods, I could set them aside and concentrate on the judge or the witness. When finished, I would ask for a moment, check my notes, and clear up anything I had missed.
Another great method is to use the exhibits or visuals that you create as your notes. You know your case. You’ve lived with it. All you need are cues to make your next point. Just order the exhibits and use them as cues for questions or argument. Finally, on flip charts I would write “stealth notes” in faint pencil that only I could see as cues for my next point.
These methods will help you avoid the judge peering over the bench and intoning, “Mr. Drummond, if you’re just going to read what you’ve written on that legal pad, just hand it on up here—I can read.”
Note to Readers
This is the third column I have done for the South Texas Pro Bono Asylum Representation Project (ProBAR). If you are interested in assisting, visit https://bit.ly/LN473-probar.
Resources
- Benjamin Weiser, “For the First Time in 232 Years, a Black Prosecutor Leads a Storied Office,” N.Y. Times (Oct. 7, 2021).
- Joshua Foer, Moonwalking with Einstein (Penguin Press 2011; reprinted 2012).
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