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Litigation Journal

Winter 2024 | Litigation Road

Law and Song

Kenneth P Nolan


  • There’s music in litigation in the words and tempo of depositions, mediations, trials.
  • You should belt it out in arguing a motion or in summation.
  • Stop worrying about how you sound; argue with conviction and intelligence.
Law and Song
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Everyone sang and all the time. That’s what families and friends did every birthday, anniversary, or Sunday afternoon after the roast was eaten and Manhattans poured. Usually my mother, using her cigarette as a baton, would start: “Five foot two, eyes of blue, oh what that five foot can do. . . .” And everyone joined in, happily and loudly. Even we kids knew the words. No one needed a half-dozen vodka sodas and a teleprompter in a dive bar to blast one out. The embarrassment was not that you sang and terribly, but only that you didn’t.

Every adult had their song, and only they could sing it. My grandmother Maisie’s was the anthem of Al Smith and her youth in the Catherine Street tenement on the Lower East Side: “East Side, West Side, all around the town. . . .” Others had traditional American standards, like George M. Cohan’s “Yankee Doodle Dandy” or “You’re a Grand Old Flag.” Even after sad, agonizing funerals, my family sang—I always rationalized—in the belief that the departed was amid cherubim and seraphim enjoying eternal bliss. But even when we all knew the guy in the coffin was going to spend a few hundred years in purgatory, someone started and soon everyone joined in.

For song touched souls, brought joy and heartbreak, was friendship and love. And this is what I vividly remember of my youth—family, friends singing together, all joining loudly in the refrain while Rita Mooney strummed her ukelele. Or reverently listening to the words of sadness, sacrifice that were the reality of our demanding Brooklyn world.

Law, with its hushed courtrooms and sterile conference rooms, does not remind of a raucous Springsteen concert with 50,000 singing “Badlands.” Indeed, raising one’s voice during argument or even at trial is often seen as indecorous. In trying a nonjury case, I was frustrated at the evasive, and untruthful, answers of the defendant. I began to fire quick and loud questions only to have the judge interrupt: “If we had a jury here, Mr. Nolan, I don’t think they would appreciate your tone.”

But despite the formality and stricture of our traditions—in actions and words—there’s music in litigation, not so much in written briefs or motions, but in the words and tempo of depositions, mediations, trials. The essence of trial practice—eloquence and emotion—mirrors a song in its purpose, its meaning.

When we cross-examine a witness, we use rhythm in our quick yes/no questions. Like a song’s refrain, we repeat the theme of our case from opening through summation—“but the defendant said she was only going 25 miles per hour.” And we build to a crescendo when we destroy the credibility of the crucial witness, lacking only the echoing cheers of the Swifties.

Like great songwriters—Cole Porter, Lennon/McCartney, Carole King—not all our trials make the hit parade. Trials are akin to live concerts, not the polished results of the recording studio and its many retakes. We can’t shout, “I don’t like that answer, let’s take it again from the top.” But, occasionally, even live performances come together—when the questions flow, the theme resonates, and the jury is nodding, maybe even tapping a foot, keeping time with your cadence. Admittedly, law is not the music of Mozart or Motown, but depositions, trials, even argument are, in their own way, song.

Write and know the lyrics. Plan your argument—its purpose, significance. Focus on your audience: Is she a Yale-educated, mega-firm former partner sitting stiffly on the federal bench, or are you addressing working stiffs—bus drivers, construction workers, health aides whose formal schooling may be limited but who have PhDs in street smarts?

Consider the words and whether they will resonate. Eloquence that doesn’t connect is worthless. Too often, lawyers use terms that are lost on those whose Sundays are spent watching the Cowboys or the Chiefs. Use simple language that is direct and easily understood. Toss the legalese into the Chicago River.

Revise and rehearse. Springsteen took six months to write the 344 words of “Born to Run.” You don’t have that luxury, but writing takes time, effort. Handing in weekly book reports and essays through elementary and high school was torture. Even at Brooklyn College, we were compelled to take Composition, writing a weekly essay for a semester. Oral Communication (Speech) was also part of our core curriculum. Sadly, these requirements have disappeared along with other essential skills like spelling, grammar, and the multiplication tables. Our trial lawyer world is communication, both written and oral. Don’t shortchange the written part.

Sometimes an outline is sufficient, but write every word of the critical points, questions—whatever is central to your case. Before your argument or opening statement, practice aloud so you will hear how you sound and so you can formulate what words and phrases to accentuate. Occasionally, what reads well on paper is not as clear and forthcoming when spoken aloud.

Listen not only to the music of Dr. Martin Luther King’s “I Have a Dream” speech but also to his powerful delivery. Even though the words are moving and true, it is the emotional and effective delivery that makes this speech so impressive. Take note how Dr. King repeats various themes—“I have a dream” . . . “with this faith” . . . “let freedom ring”—to add strength and import to that inspiring sermon.

All bands, all musicians rehearse for weeks before touring. Everything is choreographed. How long did Taylor Swift rehearse her 44-song, 3-hour performance with her 16 costume changes and her many dance routines? If you believe you can wing it, that you can convince without practice, you’re delusional.

Use your own voice. You’re not Andrea Bocelli; don’t try to be. Accept yourself—warts and all. Once you do, you will be more relaxed, more effective. Many young lawyers suffer from a lack of confidence, believe others are more articulate, polished. Somewhat true, of course, but your job is to make a clear and logical argument, opening or closing statement. Judges and juries want to decide based on evidence and law. If you can’t hit the high notes, don’t be foolish. Make your case with conviction and intelligence, which trump eloquence every time.

Probably the best compliment I ever received was when I overheard my adversaries praising my summation, “Man, Kenny was so good . . . I can’t believe how good he was.” I was ecstatic, proud that I was a superhero. That is, until the jury ruled for the defendants. That can’t happen, I told myself—there must be some mistake. Wrong. I finally realized that clarity and persuasion are no match for facts and law. I cherish those kind words of admiration, but winning is much more fun and much more lucrative. After that, I only cared how the jury ruled, not what others thought.

Be creative. Irving Berlin wrote more than 1,000 songs over nearly 60 years, turning out “Alexander’s Ragtime Band,” “Puttin’ on the Ritz,” “White Christmas,” “There’s No Business Like Show Business,” “God Bless America,” and the music for 20 Broadway shows and 15 films. He continued to write songs even as he aged, and his work adapted to the times. So should you. Technology has altered how we learn, how we communicate, and how we see not only the world but each other. I still have trouble using the remote to turn on the TV, but I appreciate the ease and magnitude of information that the internet provides.

Adapt your trial strategy to this new universe. Yes, argument is still essentially words, but their worth can be enriched by interactive videos and other media presentations. And don’t believe these visual aids should be limited to trial. Actually, trying a case is nearly impossible today, but every lawsuit is mediated. No one wants to read boring 40-page briefs, but a mediator will love a captivating video detailing the facts and strengths of your position. Especially true if you have a product liability, medical malpractice, or complicated contractual dispute. It is imperative to simplify the facts in an entertaining presentation. More people watch TV than read books, so use the gifts of technology to educate and convince the mediator.

By the way, you can use visual material in all aspects of litigation, including depositions, motions, and court conferences. The days of carbon paper—which was used when I started in the law—is only a memory, thankfully.

Don’t be shy. Even those with horrible voices sang in the crowded living rooms of my youth. No one was ever criticized. Indeed, everyone, even kids, was encouraged not only to sing but to do so solo, which always ended with compliments and applause. It’s probably one of the reasons I was never afraid to open my big mouth. You, too, should belt it out in arguing a motion or in summation. Stop worrying about how you sound; argue with conviction and intelligence.