Persuasive Skills For Lawyers In Trials, Appeals, Arbitrations And Motions
by Brian K. Johnson and Marsha Hunter.
Move with a sense of purpose
If the Judge allows you the freedom to move, only do so with a purpose, your movement in the courtroom is at the complete discretion of the Judge. Know what your Judge will allow and adjust your behavior accordingly. A purposeful move is motivated by and connected to your words and ideas. A purposeful move occurs when you walk to a new location, finish your line of argument/line of questioning, start a new topic and slowly walk to another area of the courtroom, thus distinguishing your two arguments/lines of questioning as being independent of one another for the jury, who may be struggling to understand difficult concepts in your case being laypersons. Movement from stasis attracts the jury’s attention, so you must employ it where possible/necessary. but, please note that constant movement is only distracting and only diminishes your presentation. it becomes like watching a ball at a tennis match. it eventually gets tiring, and the jury stops paying attention. it is literally visual monotony. so, only move purposefully.
Always face the jury. never have your back to the jury. Sustained eye contact is the key element of persuasive style. Movement, though, does not make you more or less of a trial attorney. it only helps enforce your point(s). it is a stylistic choice. remember, you must be your authentic self. if movement is unnatural for you and disrupts your flow, then learn to present your case from the lectern in an equally effective way.
Tactical breathing: breathe consciously. the way you breathe is directly connected with the way you feel, think and speak. Once you learn to control your breathing, it will help you:
- Calm down;
- Project your voice; and
- Oxygenate your brain.
Deep breaths have a calming effect. So, take longer inhalations and longer exhalations. Fast, shallow breathing brings anxiety, fear, panic, negative emotion, etc. You breathe like you feel, and you feel like you breathe. When you take long, deep breaths, your body reverts to its natural state of breathing when you are calm. Low, deliberate breathing brings great comfort and diminishes anxiety. When you are breathing naturally, your respiratory system is controlled by your autonomic nervous system. This is the same system that regulates your beating heart, blinking eyes and other vital functions. But, you can override your autonomic nervous system at any time. When you do so, your conscious breathing calms you down and you feel better.
LOWER TORSO: Your lungs are located in your upper torso, protected by your rib cage. The diaphragm is a dome-shaped muscle located underneath the lungs and atop the vital organs. When you draw a breath into your lungs, your diaphragm muscle flattens out toward your waist, creating a partial vacuum that pulls air into your lungs. When the diaphragm moves down, the abdominal wall protrudes, and the intercostal muscles pull the rib cage outward slightly. As your lungs fill with air, your internal organs are pushed down and forward as your diaphragm flattens. This is why deep breathing happens in your lower torso. It is your abdominal wall/belly which moves forward during deep breathing. So, take deep breaths feeling your belly touching your belt/waist band. This is not a large movement. It is very subtle, so no one will notice. By contrast, breathing through your upper torso causes your shoulders and arms to move, which is quite obvious to a casual observer. Learning to breathe in this manner 24/7/365 will eventually become second-nature, and you will have tapped into potential which most people never discover. But, in the interim, at all points in trial where you are going to initiate performance of a new task, as opposing counsel is finishing up DX, for example, take 2-3 deep breaths before standing. Visit the courtroom (more than once, if possible) prior to your trial, sit and observe the judge and his/her courtroom procedures/rules.
Athletes are trained to breathe deeply. The amount of air in your lungs is what enables you to project your voice throughout the courtroom. More air = more sound. Breathe in > speak out. Start speaking when your lungs are full of air and then slowly exhale through your speech. The more deeply you breathe, the more air which is in your lungs. The oxygen then enters into your bloodstream and circulates around your body, including and especially your brain. Your brain needs at least 20% of the oxygen in your bloodstream. Hence, your breath helps you to think quickly and clearly.
How To Get Adrenaline To Flow Properly Out Of Your Body When You Have “Butterflies” – Hand Gestures:
It is a historic belief that hand gestures distract the Jury. This is false. It is not only necessary to do so in order to be an effective advocate, but also absolutely unnatural for a person not to do so. Everyone uses hand gestures in conversation, especially when trying to persuade someone. Hand gestures enhance the message you are advocating and release the adrenaline in your body. Hand gestures are controlled by instinct. Start paying attention to your own hand gestures. Then, notice how often your hands move. Then ask yourself:
- How often do I make hand gestures while speaking? Are they distracting?
- When/why do I make hand gestures when I am speaking? Are they distracting?
- How large are my hand gestures? Are they distracting?
- How frequent are my hand gestures? Are they distracting?
- How long do my hand gestures last? Are they distracting?
Children who were born blind were studied, and it was discovered that blind children from birth used hand gestures just as frequently as sighted children. There is some causal connection in our brains between hand gestures and the free flow of speech. The more rapidly your hands gesture, the more rapid your speech. Hand gestures help people understand what is being said.
In a study, people were found to learn what was said in conversation twice as well when hand gestures were used as when they were not used. In other words, using hand gestures will help the Jury remember what you said. Hand gestures give the Jury/Judge notice of your intent and your point-of-view, which is statistically proven to help the Jury/Judge follow, remember, and be persuaded by your argument. Hand gesturing assists both word-retrieval and memory by 20%. Because gesturing is critically important, it is important to practice your hand gestures as you practice your argument prior to trial. At the same time, start gesturing purposefully and consciously in your real life in normal conversations. Eventually, it will become second-nature and will enhance your credibility. Occasionally, your gesture will use both arms. Use this only for key moments. Make sure your gestures are not tight and constricted. This is counter-intuitive and makes your credibility questionable by the Judge/Jury. Be careful not to clinch your fist. Purposefully trying not to gesture will cause your bodily to naturally impulse, causing a twitch in your forearm or some other part of your arms which draws negative attention to yourself. Furthermore, when your gestures are restrained, you tend to speak in a monotone fashion.
No one gestures all the time. It is done so only purposefully. When not gesturing, your hands must be loosely touching at waist height, not tightly pressing against the abdomen but loosely above it. This is the ready position. It is statistically proven that your hands are then virtually invisible. Why? Because people naturally focus on a person’s eyes when they are speaking. When you lean your hands on the lectern, you are extremely unlikely to use any hand gestures because it is then unnatural for your body to leave their position in rest. Similarly, do not interlace the fingers of your hands as it does the same thing. Simply place your right hand over your left hand but do not interlace your fingers. Do not always gesture with both hands. Gesture with your left hand and keep your right arm hanging slack. Then, gesture with your right hand and keep your left arm hanging slack.
4 Steps Of Gesturing:
- Hands in ready position
- Gesturing with both hands/arms
- Gesturing with the left hand/arm only
- Gesturing with right hand/arm only
The “give gesture”, when used in a courtroom, is very effective on important points of your dxs because it appears like you are handing a non-offensive, gentle question to the witness who then answers it in the manner which advances your case.
The “chop gesture” is an emphatic, important tool (when properly used) on: (1) XX and (2) closing argument. The “chop gesture” accompanies and intensifies a verbal ST.
The “show gesture” [thumb pressed firmly on top of your loosely-clenched hand] is a literal reenactment of your words. It is like a visual aid to the Jury/Judge which shows what message you are trying to convey to the Judge/Jury from the evidence.
Common gesture format: “On the one hand…” – gesture with the left hand. “On the other hand” – gesture with the right hand. Doing so highlights the contrast between the two ideas so the Jury/Judge can see the issue and your version of how it should be resolved. Never use your middle finger in any gesture. Repetitive gestures become monotonous and annoying to the Judge/Jury. Avoid pointing with your index finger. Also, do not give the thumbs up like President Bill Clinton. It makes you lose credibility with the Judge/Jury. Do not hold a pen/pencil. Put it down. It is only for writing, not speaking. The pen/pencil will distract and annoy your Judge/Jury.