Skilled lawyers must have many tools in their toolboxes. None is more powerful and unnatural than that of silence. Silence need not be employed for extended periods to be effective. Indeed, it may contemplate mere seconds or minutes. Its effect is profound. You were all taught in law school to be erudite, articulate, and piercing in your verbal communication. It is likely that no one ever taught you about the enormous value of silence.
Indeed, as we continuously talk, we rarely listen; instead, even as we speak, we are usually searching for the next point we wish to make to wow and impress our colleagues or clients. This learned pattern deprives you of the ability to utilize two other tools in your toolbox. First, you miss the opportunity to observe valuable verbal leaks that silence inevitably forces your opponent to make, and second, it obliterates the ability to seize upon the risk adversity of the vast majority of people.
Horror vacui. It has been oft-stated that “nature abhors a vacuum.” Silence creates such a vacuum, and to eliminate the discomfort they feel, your counterparts likely will rush right into that void with the most amazing disclosures or missteps. They will ultimately bid against themselves and make unnecessary concessions or admissions to eliminate the crushing burden of anxiety that silence creates.
You cannot pick up on and utilize these benefits if you are always thinking of your next verbal point.
If you can train yourself to overcome your anxieties created by silence, your opposition is much more likely to crack first and blurt out the most incredible information that will usually undermine the playbook to which they had otherwise hoped to adhere. The result is a loss of control of the engagement by the party so fearful of silence.
Employing a silent pause allows us to understand the questions asked of us using the period of silence to fully and logically frame our responses. New lawyers are generally uncomfortable or wholly unacquainted with this critical skill set. As a lawyer, you have much to say in furthering your client’s interests. In reality, rushing right into the void deprives you of the ability to comprehend a statement or question and formulate the most succinct response. It also deprives you of the opportunity to reap the enormous benefits of the discomfort you create in your counterpart, as they strive to find shelter from the anxiety and tension created by the void.
While learning to find comfort with silence, one must always be wary of your opponent, creating the void of silence in opposition to you and your client and seeking to exploit the risk adversity of your side.
One tactic to counter silence is to respond to the silence with open-ended questions, those that cannot be answered by a “yes” or “no.” This means the party employing the tactic of silence must speak in some manner, thereby breaking the hypnotic trance that silence seeks to impose. The proper practice is to state your position succinctly and then become silent. There is no need for elaboration or emphasis before the other side responds.
Celebrated lawyer and author Louis Nizer, in his book Thinking On Your Feet, said:
Only the amateur fears to be silent for a moment lest interest lag. He depends solely on words to capture attention. The artful performer knows that rhythmic patterns require silence too, and nothing is more dramatic and effective than a long motionless pause after a statement. It permits absorption of thought. It permits reflection. But more importantly, it compels attention to what has been said as if an italicized finger had been pointed at it.
Of the three main sensory tools at your disposal—verbal, auditory, and kinesthetic—it is the auditory skill that is the most useful in the practice of law. Overcome your fear of appropriate silence and learn to be a patient and attentive listener, and you will find more times than not; it is your opponent who will advance the cause of your client.
