Silence Is Your Friend: Pauses Have Power

Silence is Golden — Proverb: Ancient Egypt

No word was ever as effective as a rightly timed pause.— Mark Twain’s Speeches (1923 ed.)

As trial lawyers, words are our stock in trade. We have many tools at our disposal for persuasion. In addition to our words, we have exhibits, demonstratives, and the emotion we put into our words. However, this article is about a little talked about tool in our arsenal. The tool of silence. Silence can aid us in three distinct areas.

Depositions

Many times, just being silent gets you more information. It is the old reporter’s trick. You just throw a good short, open-ended question out there and then shut up. You just sit there…maintaining eye contact…and just nod…and nod…and nod. Most people hate silence, especially while under pressure.

Law enforcement agents know that silence is an effective tool for investigations. Silence is uncomfortable for many people. They will want to “break” the silence, and many times useful information will come out. However, it takes discipline to remain silent.

The inexperienced advocate will ask a question, break eye contact, perhaps write a lengthy note and be thinking of, or looking at, their next question. All this activity takes their focus off the deponent. When the inexperienced advocate is doing this, that, or the other thing, the pressure lessens on the deponent.

The experienced advocate during the fact-gathering phase of the deposition will ask a broad, open-ended question to get the most information, such as, “List for me everything you did after getting this text.” They will maintain eye contact and just nod as the deponent starts listing each item. There is no need to break eye contact because, if the deponent gives a long answer, the attorney can ask the reporter to read back the answer. To make sure it is “everything,” experienced counsel will then ask, “Anything else?” followed by silence until the deponent finally says, “No, that is everything.”

Then after gathering all the facts, the experienced advocate may choose to theory test with questions such as, “In hindsight, what could you have done to avoid this situation?” Most times the deponent will blurt out, “Absolutely nothing!” But if the attorney immediately moves on and doesn’t ask, “Really, nothing you can think of?” followed by absolute silence, they will never get the occasional, “Well, this is really all your client’s fault, but maybe I could have called earlier.”

I am not saying that silence will work each and every time with each and every witness. But, if you ignore the power of silence, you have one less tool to use in questioning.

Finally, silence can be one of your most effective tools to deal with opposing counsel who might be less than professional. Not rising to the bait is professional, perhaps tactically the best option and, in many cases, has the added benefit of really getting under their thin skin. Regardless of what they are doing, you are professional. However, you treat them as if they are not even in the room.

Cross-Examination

You’ve asked a simple, one-fact question, which everyone in the courtroom knows can be answered with a “yes” or “no”. You don’t get the simple answer. Instead, the witness serves up a long-winded explanation.

Now, some advocates attempt to interrupt to the dismay of both the judge and court reporter. Others jump in right at the very end of the answer with a frantic, “That’s not what I asked you” and then repeat the question quickly.

However, an effective option is silence. You’ve asked the plaintiff’s chiropractor, “Doctor, Ms. Smith came to you three weeks after the accident, true?” He then serves up a 125-word, minute and a half, discourse beginning with, “Well, Counsel, that’s not atypical in these severe injury cases since…blah, blah, blah, etc.” Many attorneys will attempt to interrupt. This usually draws an objection, resulting in three people talking over each other. In turn, this draws the ire of the judge and the court reporter. Consider silence instead.

You simply pause, totally silent for a few seconds, perhaps you look towards the jury and in a low, measured tone, parse out, “Now Doctor…Ms. Smith…came to see you…three weeks…after the accident, correct?” Everyone in the courtroom knows you’re entitled to a “yes”, and nothing more. Silence can be devastating on cross.

Openings and Arguments

Listen to Gregory Peck’s closing argument as Atticus Finch in To Kill a Mockingbird. It is a master class in the power of the pause. Finch’s main argument is that the victim was beaten by a person who was left-handed. He then delivers this line, “…and Tom Robinson now sits before you…having taken the oath…with the only good hand he possesses…his right.” The silence after the delivery of that line is over 12 seconds. You can even hear a car honk outside.

“Comedic timing” is a well-known phrase. The classic example is from the comedian, Jack Benny. It was first done on radio. This is even more impressive since it relies on silence as opposed to any visual for comedic effect.

Benny created a character who was notoriously cheap. A robber surprises Benny and says twice, “Your money or your life.” Benny pauses, silent, for over 12 seconds and the audience immediately starts laughing until he delivers the punch line, “I’m thinking it over!”

Perhaps one of the greatest real-life examples is Rev. Dr. Martin Luther King Jr.’s I Have a Dream speech. Dr. King not only pauses at the end of a sentence but pauses between important phrases within each sentence.

So, why does silence work? It works because the listener needs time to think about what you just said. The pause helps your great points sink in better. Silence also helps you. Pauses give you time to think. The inexperienced advocate feels they must constantly be filling the void of silence with sound. Sometimes the sounds coming out are not even words. They are the “ands” and “uhms” of the nervous speaker. Give your audience … and yourself … the gift of silence with a well-timed pause.

This article began with a quote from a humorist, but I shall end with a quote from a pianist. The great 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.”