Persuasive Skills For Lawyers In Trials, Appeals, Arbitrations And Motions
by Brian K. Johnson and Marsha Hunter.
“Any fool can know. The point is to understand.” – Albert Einstein
Great lawyers share the ability to capture the essence of an idea and express in it ways that convince others of its inherent strength and persuasiveness. Clients want experienced trial lawyers. It is statistically unlikely that an attorney will have trial experience on the job. Taking pro bono cases that have a substantially likelihood of going to trial and the client does not have the financial means to pay for the lawsuit can give you the trial experience you need.
You must be forever vigilant in making sure you NEVER:
- SPEECH: speak too quickly, softly, loudly, etc.
- NO GAP-FILLERS: use nonsense, “speaking” noises such as “um, ah, ok, oh h’uh, u’huh, etc.”, which naturally fill gaps in ordinary conversations but yet are inappropriate for the courtroom.
- BODILY MOVEMENT: move too much or too little, awkward bodily movements; etc.
“Practice makes the master. We are what we repeatedly do. Excellence, then, is not an act but a habit.” – Aristotle
Practice and learn to use analogies to translate arcane concepts into human values that a Jury can rapidly understand.
Practice your approach mentally and physically in a make-shift courtroom in your office, your house, etc. And rehearse over-and-over again prior to trial. This is why professional athletes like Tom Brady and Michael Jordan are the best at their respective professions. By rehearsing in this way, you are thereby lessening your anxiety at trial because it will be almost fluid by that point ideally.
“The difference between ordinary and extraordinary is that little extra.” – Coach Jimmy Johnson
Effective advocacy is both an art and a science. You must be your true, authentic self at all times. You cannot convince others of anything if they don’t believe in your sincerity. Lawyers are required to advocate persuasively;
- In different settings (trial, arbitration, appeal, etc.);
- Using different methods of delivery (arbitration/bench v. Jury trial);
- Adapting to different juries in various venues (especially the ways of thinking by the juries in those venues wherein your trial will be held).
- GOAL: To be the best advocate always in all ways, whether a trial lawyer or an appellate advocate.
Some of your natural human behaviors will make you look unnatural in a courtroom. As an advocate, you must then employ some conscious behaviors to look and feel natural in the courtroom. To complicate matters, most lawyers remain oblivious to their unnatural, natural behaviors due to the natural human tendency of others not to criticize, even if done constructively, and because people are highly sensitive to criticism and, therefore, do not seek it out. Some examples of unnatural, natural behavior:
- biting fingernails,
- playing with/jingling keys/coins in pocket,
- repeatedly brushing your hair back from your face,
- repeatedly touching/playing with your eyeglasses,
- slumping over,
- crossing your arms,
- waving your arms about,
- shifting weight back-and-forth,
- fiddle with your pen/pencil, etc.
When adrenaline enters your system due to your nervousness of being in the courtroom, your body fights to revert back to its unnatural, natural behaviors as a coping mechanism for the stress. That is when you must be extra vigilant to observe yourself and ask your trial partner (if you have one) to observe you and provide live feedback to you too. Judges and juries demand formality and self-control, at all times, from attorneys before them.
On DX, you only ask questions to which you already know the answers. You NEVER ask a question wherein you don’t know the answer. Your DX must be worded appropriately, asked with appropriate curiosity and sound spontaneous. Your DX should come off as effortless as a natural conversation, NOT scripted and rehearsed.
Your voice at trial must be loud enough to fill the courtroom and must have authoritative audibility, whether natural or practiced (If you are naturally a soft-spoken person) Control the pace at which you speak, do not speak too quickly or conversely too slowly. Eliminate all thinking noises (“uhms, oks”, etc.). Finally, be emphatic to the Jury at trial when you reach those points where your most persuasive arguments lie and choose your language carefully when the pressure is on.
You must face head-on all of the weaknesses in your natural behaviors, permanently change them by being conscious of them, and work to permanently eliminate them. You must, at the same time, enhance what you do well. Combined, you will then be “the articulate advocate.”
Goal For Advocate:
Appear confident, your confidence puts your client at ease. Appear comfortable, your comfortable demeanor psyches out/unnerves your opponent. Appear credible, this can make the Jury or judge(s) issue a decision in your favor.
Every attorney, no matter how experienced they are, experiences “butter flies” in the courtroom. Practicing your approach pre-trial only lessens them. When the human body experiences stress, it naturally produces adrenaline. So, it is critical to understand how adrenaline (fight v. Flight) works so you can use it to your advantage. Adrenaline helps professional athletes perform their job duties better because the adrenaline pumped by their bodies in anticipation of performance produces the energy needed to run faster, throw a ball farther, etc., and further helps them focus and produce consistently positive results under tremendous amounts of pressure (again, e.g., Tom Brady and Michael Jordan). Adrenaline, when pumped throughout the human body, makes the hands and arms shake (body preparing for “fight” option) and your knees knock (body preparing for “flight” option). Furthermore, rapid, shallow breathing occurs as your body prepares for both options. Consistent, repeated, proper preparation of your argument in advance is the only way to lessen, though never entirely eliminate, the amount of adrenaline pumped through your body.
SOLUTION: Prior to speaking, breathe deep breaths for a few seconds and count those seconds in your head. In the interim, regain control of your diaphragm. Prepare your body, and ready your mind. Create your own performance ritual. Look at how Steph, e.g., approaches each free throw. He has a ritual that he never deviates from and, as a result, leads the NBA all-time in free throw percentage at 90.69%. To reduce adrenaline in a similar way as an advocate, you must rehearse your argument repeatedly, always being cognizant at all times of your body and your mind. When your body and mind are in unison, under control and relaxed, the need for adrenaline is diminished. Thus, you will gain, and maintain, control. Random movement, while it feels good/beneficial at the time because it is helping your body to release the energy caused by the adrenaline, must be avoided at all times. Reliance on a physical ritual frees your brain’s pre-frontal cortex, the area of your brain for higher intellectual function, from being distracted by pacing, fidgeting, gestures, etc. And ensures that your body’s actions will be governed by your brain’s motor cortex which is the brain’s overseer of normal, automatic functions. Your pre-frontal cortex can then concentrate on what is really important, to witness what you want to say, and how you want to say it. Stance: Make sure your body is always centered.
Lower Body: Make sure your feet are a comfortable distance apart. Do not have them close together so that your shoes touch. Do not adopt a stance that is too wide either. Embrace a stance in between the two.
- Never cross your legs or ankles.
- Never speak until after you have firmly planted your stance and taken a few deep breaths. Stand still (do not pace).
Isaac Newton’s theory applies equally to the courtroom, to wit: A body in motion tends to remain in motion, while a body at rest tends to stay at rest. When you are at rest, you look calm, confident and in control. When you are in motion, you unconsciously rock, sway or shuffle your feet, thereby appearing nervous and neither confident nor credible to the Judge or Jury. Your knees should be in the position that you have while riding the subway when you are standing and holding the railing. This will prevent you from moving. Center your hips over your feet and knees, thereby balancing the weight equally on both legs.
- Avoid absolute rigidity. You should not appear that you are stuck in concrete.
- For women wearing high heels, tuck your tailbone to prevent your weight from shifting toward your toes.
- Once you do all of this, you will then have conscious control over the major parts of your body: buttocks, leg muscle and calves.