Advocacy advice commonly centers around rules. Rules work well for procedure and evidence, but not for litigation skills that depend on individual characteristics and styles. Advocacy is an art, not a science. Just as both Rihanna and Willie Nelson are successful musicians, a courtroom advocate can be successful in innumerable ways. If I offered a list of rules, the first would be Break These Rules. So, I offer suggestions based on my 40 years of litigation and almost that many years teaching.
The first times I spoke in court I was insecure, so I imitated the senior lawyer on the case. He was loud and brash, so I was too. What worked for him was inauthentic for me. Some successful litigators speak loudly, but the best advocate I know never raises his voice. Find your voice, not someone else’s.
Ignore Your Flaws
We would all like to eliminate stylistic wobbles such as
Oral advocacy often calls for lawyers to speak while the audience—a judge or a jury—listens. That format dangerously emphasizes the speaker’s point of view rather than the listener’s. When we don’t expect a response, our tone is too formal and scripted. But when we speak with friends, we expect an exchange, so we talk informally and, as a result, communicate better. Talk to your audience, even a stone-faced jury, as if they might talk back. The best oral advocates are good conversationalists, and good conversationalists are good listeners, so develop your listening skills. Listen to your audiences (including their non-verbal clues) as well as your adversary.
Whenever my students finish an oral presentation, I immediately ask them how they think they could have done better. Most often, they say they should have practiced, or practiced more. Lawyers who put days into writing a brief and hours outlining an oral argument sometimes hear the argument itself for the first time as it comes out of their mouths in court. That doesn’t work. Ask someone to listen to your presentation and use someone who mirrors your audience—someone who is not a lawyer for your opening statement, and a lawyer not on your case for an argument to a judge. Then ask them to explain what they heard. If their understanding varies from what you wanted heard, start over. It’s easy to video record yourself on a smart phone. Do so, then watch it. You’ll need to watch it more than once because the first time you’ll see only things that are unimportant. Subsequent viewings focus on more meaningful issues.
When we speak, we like to believe we are being heard and understood. But often the audience is just pretending. It has mentally shut down when the lawyer used complex arguments suitable only for people that already understand the argument or pretentious words designed to impress rather than communicate. Oral advocacy, even more than written work, should always be simple and clear. One way to make yourself simplify is to choose a theme—a word, phrase, or sentence that encapsulates your big idea. That theme should be included in your “hook”—the interesting first sentence of your presentation. When you practice, ask your reviewers to state the theme they heard.
Avoid writing out your presentation. When we’re nervous, we begin to read and lose contact with our audience. Memorizing your speech is just as dangerous, because you read what is written in your memory. Rather, outline your major points with just bullet points as reminders. Understand that listeners have trouble following what we are saying, and help them. Use roadmaps (“There are three reasons the defendant is guilty”) and headlines (“Next I’d like to explain the principal flaw in plaintiff’s argument”).
You’ve practiced your argument, slimmed it down to its essence, and in your most conversational, authentic tone, you present just what you want to say. It can still derail if you try to force the argument to go according to your plan. We are only one player in the court room, so judges, other lawyers, and a multitude of unanticipated factors can change our plans. Roll with it. If the judge, for example, asks a skeptical question, answer it, immediately and candidly. If your adversary makes a point that lands home with the audience, deal with it. If you dodge the judge’s question or change the subject, you’ve lost.
If you spend any time in court, you will observe most lawyers just “going through the motions.” Having filed uninspired briefs, they make similarly canned and tedious arguments. It is too rare but when a lawyer steps up comprehensively prepared to fervently advocate for the client, the courtroom atmosphere changes dramatically. One way that savvy lawyers set themselves apart is with visuals. A chart, exhibit, or object can make a presentation come alive. With television and interactive media, our society has increasingly grown to rely on visual learning, but lawyers remain old school, trying to use words alone. Be the lawyer who wakes up judges, turns lawyers’ heads, and impresses clients.