The Art of Advocacy

If you can believe the Wall Street Journal, lawyers are dressing up these days. Christina Brinkley reports here that many attorneys are scorning business casual in favor of more formal attire. The argument for this? “[H]igh powered attorneys should look like high powered attorneys” and anything else is “sending the wrong signal.” The law firm cited is unusual in its adherence to a strict dress code, but I agree that lawyers should acknowledge the expectations of their various audiences, especially those inside the courtroom, and dress accordingly.

At trial, this becomes extremely important. During the first moments of an opening statement, your audience of judge, jury members and arbitrators will be forming key impressions of you and your case. I generally recommend conservative attire that is compatible with your personal style and the audience’s expectations. A couple of opinions on attire and appearance:

* Avoid bow ties. Keep to traditional suiting if at all possible.
* Choose jewelry carefully. Sparkles are distracting — including those in cuff links. And, expensive jewelry can create a gulf that interferes with having the jury “identify” with the lawyer.
* Arrange your materials in an organized and controlled manner. If you are constantly groping for exhibits, you might lose credibility.
* Use the space in the courtroom. Consult the rules and judge’s staff before trial on where and how freely you can move.

There is room to disagree about what to wear and how to look at trial, but there is no disagreement on the importance of appearing natural and comfortable. Whether or not you leave the bow tie at home, your appearance engenders confidence through projecting a powerful and controlled image.

Posted by Paul Mark Sandler | Permalink | Email This Post

Posted In: Trial Strategy

Bookmark:

Here's another post excerpted from my new book, Anatomy of a Trial: A Primer for Young Lawyers:

Never discount speaking style and delivery as superficial elements of your case. They are critical instruments of persuasion. Before you even enter the courtroom, you should consider the tone you want to set during specific examinations, what expressions and gestures to use, your demeanor, body language, and pacing.

Where you stand and how you move while conducting a direct examination is important. Sometimes a judge will require counsel to remain at the podium. This poses a challenge--not being able to approach the jury or move about the courtroom limits the nonverbal modes of communication that are usually available to lawyers. It is often helpful, for instance, to stand by the juror box while asking a witness to tell “us” about an event as if you were part of the jury.

It can be difficult to control your body language so that it adheres to the overall impression you want to make. Facial expressions, in particular, can betray you. You may find yourself frowning or grimacing upon hearing an answer you did not want. Obviously, such slips undercut your credibility. How can they be avoided? If you can truly internalize conviction in your argument, your confidence in the face of contrary evidence is more likely to be evident to jurors during examinations.

Your convictions about the case will also become evident as you vigorously engage a witness. A lack of conviction, on the other hand, and a lack of imagination, can lead to lazy questioning. A dull sequence might go like this: “Well, tell us what happened.” “And then?” “What happened after that?” Generally, the examination will unfurl much more vividly if you take charge of it, tailoring questions to draw out compelling details you know are there, waiting to shine before the jury.

One final note about style during direct. Remember that you are not speaking to lawyers. You are trying to communicate with the witness and with the jurors. Stilted, lawyerly language is not desirable. For instance a question like “Did there come a time when you returned home that evening?” comes off as formal and aloof. As do, “What, if anything, did you do next?” and “State your name for the record.”

Posted by Paul Mark Sandler | Permalink | Email This Post

Posted In:

Bookmark:

Technology can work wonders in the courtroom. The combination of high-tech imagery and low-tech witness examination often creates vivid, lasting memories in the minds of jurors. As time goes on, the technology becomes more sophisticated, but its purpose remains the same: explaining your case and persuading the audience in a memorable fashion that trumps your opponent's story.

By way of example, see this piece on Law.com by David Horrigan: “Technology Puts a Dream House on Trial.” It relates how, in a dispute between DreamWorks CEO Jeffrey Katzenberg and Goodyear over heating hoses installed in his vacation home, both teams used video presentations. The plaintiff’s included a computer-aided tour of Katzenberg’s home and animated CAD drawings while the defense used a straightforward presentation of blueprints and related drawings through TrialDirector 5.0 software.

As technology has evolved, there are now more ways than ever of showing exhibits in a courtroom. In my view, though, it is not the sophistication that counts, but how well the imagery persuades. Lengthy presentations, no matter how elaborate and well done, may bore the audience. Perhaps the most effective way to work with video at trial is to weave imagery into witness examinations, so that the oral testimony is reinforced by the visual, the abstract becomes concrete, and everyone in the room can see what the witness is reviewing as he responds to questions. Particularly during long direct or cross examinations, use of audiovisual aids helps keep the jury engaged in your story.

Posted by Paul Mark Sandler | Permalink | Email This Post

Posted In: Trial Strategy

Bookmark: