The Art of Advocacy

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.”