The new issue of Litigation Magazine includes an article on classical rhetoric and its value to trial lawyers by JoAnne A. Epps (a professor and dean of the Temple University Beasley School of Law), Ronald J. Waicukauski (of Price Waicukauski & Riley, LLC, in Indianapolis) and yours truly. Click below to read the full article, and you'll find all the classical rhetoric you need at Amazon.com.
This article in the November issue of Your ABA provides an overview of The 12 Secrets of Persuasion, a book I co-authored with JoAnne Epps and Ronald Waicukauski.
In The 12 Secrets of Persuasive Argument, JoAnne A. Epps, Ronald J. Waicukauski and I identify twelve fundamental issues in formulating an argument; some of which one tend to think about less than others.
While most of us are aware of a few basic tips on successful arguments, like gathering appropriate, convincing evidence, focusing your goal, and maximizing delivery, it’s also important to pay attention to some of the more subtle elements of your particular situation. Strategy involves more than fact-gathering; there is the importance of emotion, style, and an engaging manner of speaking. If you want to set yourself apart from every other litigator in the field, you need to be keenly aware of the subtleties and complexities of the modern persuasive argument.
One of the things I think that’s ultimately most important in relaying an argument is the way you tell it. You can have all of the logical reasoning and unquestionable facts you want, but an audience won’t be persuaded without a little something more. Although a lot of us think of lawyer’s presentations as a performance, we need to really think about what that means. You need to appear as a personality, someone the audience can relate to and be interested in. You don’t have to tell jokes (although you could), but it helps to make your argument more personal. Relate the issue to yourself, or make allusions that your audience can follow, too. A jury is going to respond much more favorably to an advocate they perceive as being relatable, rather than some coldly logical litigator – and that favorable climate is going to make them a lot more receptive to any argument you’re going to make.
Ultimately, remember that you only get one first impression – so whatever tactic you choose to take in your presentation, be energetic, enthusiastic, and mindful of your objective.
When a theme is powerfully presented, a lawyer can cast a spell over a jury. Whenever a spell is created by opposing counsel, it must be broken as soon as possible.
To do so in an opening, you may want to invoke a dramatic statement that shifts attention to your case, the theme of which is compellingly distinct from that of the opposing counsel’s. For example, in a case alleging sexual harassment the defense began as follows: “Ladies and gentlemen, this case will demonstrate that just as it is important to eliminate sexual harassment in the workplace, it is equally important to eliminate false claims of harassment, which is exactly what we have here today.”
Other techniques of introduction include clearly stating your purpose or asking a question central to the case. For example: “The government is going to ask you to take away the freedom of Sergeant Smith for defending our freedom. … Now, what crime did he commit? His military working dog barked at people.” (The Baltimore Sun, March 14, 2006, quoting Capt. Jason Duncan in the opening for the defense of Sgt. Michael J. Smith in the Abu Ghraib prison case.) You can also begin by paying a compliment to the jury or appealing to the jury’s sense of self-importance: “In deciding this case you will be establishing the industry standard for the next 20 years.” Avoid introducing your case by stating that the opening cannot be considered as evidence. This only suggests that the jury should not listen to you and that what you are about to say is unimportant.
Because your listeners’ impressions of you bear on your persuasiveness, within the first five minutes of the opening you should ingratiate yourself with the jury. This isn’t hard to do. A courteous smile and a word of gratitude can help you establish much-needed rapport. There are different opinions about whether you should thank the jury for its attention during the opening, but I believe doing so can help humanize you and your client. A little courtesy can go a long way.
Ideally, within the first few minutes of your opening statement, each juror will have a favorable impression of you and a clear understanding of your overarching theme. Such themes are vital. In addition to drawing attention to your case, they can give the jurors a figurative lens through which to view all the information that is to follow and help them organize it as you wish them to.
Yesterday the New York Times ran a fascinating column from David Brooks on the concept of "moral emotions." Citing recent studies by neuroscientists and others, the column suggests that the moral reasoning we learn in philosophy classes is merely an "aesthetic" justification for instinctive convictions we have about right and wrong. In the same way a bad smell repels, moral error repels. We know beauty when we see it; so, too, with moral goodness. Moral decisions, Brooks suggests, are driven by emotion.
Trial lawyers should familiarize themselves with the research Brooks cites. It matters to our profession, though I question whether it will change how we argue cases. Skilled advocates know, and have known for centuries, that a key component or persuasion is pathos. In speaking to juries, we always appeal to emotions. As Abraham Lincoln said during his trial lawyer days, to persuade a person, one first has to capture the heart. If a case concerns a traffic accident, we describe the wreckage in vivid detail or speak movingly of the plaintiff's struggle to walk afterwards. This is common, effective if not overwrought, and often wins verdicts.
But some lawyers concentrate primarily on logos. If the research Brooks cites stands the test of time, logic in legal argumentation may come to be seen as merely the "window-dressing" for what we know by instinct to be right or wrong.
There is something to be said about focusing a witness examination around one indelible image. For the prosecution in the trial of Alaskan Senator Ted Stevens, the image of choice was a $2,695 vibrating Shiatsu massage lounger from Brookstone.
Reporter Dana Milbank narrates the prosecution’s cross-examination of Sen. Stevens in today’s Washington Post. The senator faces seven felony counts charging that he deliberately concealed on Senate ethics forms $250,000 in goods and services he received for his home in Alaska. He contends that the massage chair, among other items, was borrowed from friends or given despite the fact he declined the offers.
To convince a jury of the merits of a case, attorneys want to provide memorable testimony that will overwhelm competing arguments. The prosecutor in the Stevens trial seems to know this lesson well. Brenda Morris used the massage chair as a prime example of the alleged goodies received by Sen. Stevens, describing the chair in her opening statement as the "expensive massage chair from Brookstone -- you know, that gadget store you see in all the malls."
The chair came up again in multiple witness examinations, most importantly in the cross of the defendant himself. Here is the penultimate moment cited by Milbank:
Prosecutor Brenda Morris, toward the end of her cross-examination of the senator yesterday, settled in for a long discussion about the chair, which Alaska restaurateur Bob Persons bought for Stevens as a gift seven years ago -- but which Stevens never reported on his Senate disclosure forms.
Continue reading "The Ted Stevens Trial and the Lesson of the Memorable Image" »
The Washington Post had an interesting piece yesterday on the art of evading questions. The story contrasts Alaska Governor Sarah Palin’s blunt refusal to answer questions during the VP debate last week with Obama, Biden and McCain’s more subtle techniques of evasion.
For advocates caught between a rock and a rhetorical hard place, the article might offer some helpful tips. But judges asking questions in court won’t be fooled the way “Joe six-pack” might. If you have no good answer for a question from the Bench, it is probably wiser to err on the side of honesty, frankly admitting that you cannot respond fully to the question at this time but will submit a supplemental memorandum if the court desires, or state "I am not sure but under the circumstances the answer could only be..." When pushed against the wall you might state, "while I am not certain, my guess would be..."
Best solution, be prepared and know your subject matter. Whatever you do, don't bluff. An evasive answer, even as artful a dodge as Obama’s answer cited in the Post article, will hurt your ethos with a sophisticated listener.
For those who plan to tune in to the presidential debate this Friday, here is a cheat sheet on some common logical fallacies. One can only hope these two fine candidates will steer clear of such foibles, but I, for one, am not holding my breath.
Slippery Slope
The “slippery slope” argument falsely assumes that once you take a moderate first step in a particular direction, a catastrophic chain of events will follow. In many cases, a better metaphor would be a staircase with many safe steps along the way.
For instance, one candidate told a radio show that choosing a vice president based on certain non-negotiable positions would send him down a “slippery slope.”
On the other hand, sometimes the slippery slope does exist and can be a legitimate basis for an argument. When you hear language like “opening the floodgates” and “slippery slope” your job is to make certain that the argument is true.
Compound Question
A question like, “Isn’t America tired of Democrats wanting to raise taxes?” is a compound question because it actually involves two or more issues that cannot be accurately answered with a single response. It assumes that Democrats have always wanted to raise taxes and also that you may have a position on the issue. The best response to a compound question is to point out that the questioner has made a false or unwarranted assumption.
Continue reading "Fallacious Arguments" »
More on the subject of researching judges:
In addition to reading prior opinions and talking with former law clerks, court personnel, and other attorneys about the judge's manner and preferences, be sure to observe the jurist in court, particularly if you are presenting a case before him/her for the first time. There is no substitute for this firsthand knowledge.
Observe the judge's style, what s/he seems to like and dislike, how s/he relies on other cases. Then, tailor your presentation to these preferences. (Without, of course, compromising your own natural style.)
By way of example, consider the story of a young trial lawyer defending a criminal assault case.
Continue reading "Researching judges" »
The last post touched on writing for judges. Now let's consider prepping for an appearance in court. According to the receiver-centered school of rhetoric, the more you know about the jurist's attitudes, values, personality and background, the more effective an argument you can fashion.
How do you research a judge? To begin with, read all relevant opinions and other writings to gain an appreciation of the judge's views. If those views differ from the position you plan to present in court, be ready to acknowledge this difference, as a show of respect, and then explain why the jurist should hear you out. Think of the potential embarrassment if you started arguing your point, ignoring the court's standing on the matter. That kind oversight will be detrimental to your ethos in many cases.
Second, you will need insight into the judge's mannerisms, style and idiosyncrasies. For example, will the judge be receptive to your moving away from the lectern? Will she have read your brief before oral argument? How much time should you devote to the facts or to the questions presented? Does the judge have a long or short attention span? Does he pepper counsel with many questions? Reading opinions won't provide answers to questions like these.
Continue reading "Communicating with Judges at Trial" »
It's obvious that attorneys should research judges before they argue before them, and that they should write their briefs with the judges' philosophies and predilections in mind. Why, then, do judges remain so frustrated with how lawyers write motions?
U.S. Supreme Court Justice Antonin Scalia apparently feels so strongly about the subject of legal writing that he's devoted much of his new book to it (Making Your Case: The Art of Persuading Cases). If you haven't time to read the book, you might check out this older article, published in 2002 by Georgetown law professor Kristen K. Robbins Tiscione. The piece summarizes the results of an unusual survey of federal judges on the subject of legal writing. Three hundred and fifty-five judges took part in September 1999, and their collective responses portray a judiciary that is a bit fed-up with long-winded briefs that are nonetheless lacking crucial legal analysis.
Continue reading "Writing for Judges" »
Persuasion technique is often taught in such a way as to focus your attention on yourself—your rhetoric, your skill, your arguments, your persona. Don’t be mistaken: rhetoric is at least a two-way street. Any argument you offer has several components—you (the messenger), the content of what you have to say, the medium, and the audience. The most important of these, and the least predictable, is the last.
In the context of litigation, members of the audience (jurors and judges) determine your client’s fate. To succeed, you have to understand them as well as possible and then tailor your argument accordingly. That’s what’s called a “receiver-centered” approach, and in my view it’s fundamental to success.
In an earlier book (The Winning Argument), my co-authors and I quoted an old story about an Irish barrister representing a shepherd before the high court of Great Britain. During the argument, a member of the court commented: “I’m sure your client is familiar with the doctrine of res ipsa loquitur.” The lawyer responded, “Yes, my Lord, in Killarney, where my client tends his flock of sheep, they speak of little else.”
Lawyers err in this fashion every day. They assume their audiences understand too much or too little. They speak over or under the heads of jurors. They bore judges with tedious, irrelevant details, or irritate them with inappropriately bombastic rhetoric.
Why does this happen? Attorneys prepare their arguments in the privacy of their offices surrounded by colleagues who speak their language and often share common backgrounds. Inside this bubble, they spend hours upon hours perfecting the intricacies of written and oral arguments, gradually slipping into the illusion that this rhetoric is theirs. This is a mistake of ownership. A legal argument does not belong to the attorney who makes it. It belongs to the court. Once uttered, it exists as a public expression that will be received, decoded and judged by those who hear it.
In other words, the “receivers” are not passive receptacles for rhetoric. In decoding your argument, the audience is as much involved in creating its meaning as you are. When you use the word “home,” for instance, you may associate it with a tranquil country cottage while your listener may envision a high-rise hovel fraught with tension and resentments.
According to Aristotle, “the whole affair of rhetoric is the impression to be made upon an audience.” If you believe this is true, and I do, then you will nimbly shape your rhetoric to suit the receiver, be it a judge (in a motion), a jury (at trial), or the opposing party (in negotiating a settlement).
In my next post, I’ll focus on the first of these, the judge.
Paul Mark Sandler is a trial attorney who has developed a national reputation for successfully representing many notable clients in trial and appellate courts. He is a partner at Shapiro Sher Guinot & Sandler in Baltimore.
The 12 Secrets of Persuasive Argument
"This book will give all lawyers the guidance they need to become effective advocates. Whether you have just passed the bar or have been practicing for 30 years, this book will help refine your persuasive skills." -- from the Foreword by Carolyn Lamm, President of the American Bar Association
Discovery Problems and their Solutions, Second Edition
"An instant classic that is a must for any litigator's bookshelf." — The Daily Record (Co-Author)
Anatomy of a Trial: A Primer for Young Lawyers
Anatomy of a Trial follows the course of a single star-studded trial to illustrate skills that are crucial to any courtroom advocate.
Raising the Bar: Practice Tips and Trial Technique for the Young Maryland Lawyer, 2nd Edition
"Filled with practical advice and concrete examples of proven strategies and effective techniques." – Dean Karen H. Rothenberg, University of Maryland School of Law
The Winning Argument
Reveals 12 essential characteristics of a winning argument and time-tested persuasive techniques that are fundamental to legal advocacy. (Co-Author)
Model Witness Examinations
A pioneering book, Model Witness Examinations vividly illustrates how to handle the most common evidentiary issues every trial lawyer faces. (Co-Author)
Pattern Examinations of Witnesses for the Maryland Lawyer, 4th Edition
Offers over 60 examples of real-world direct and cross-examination situations. (Co-Author)
Maryland Discovery Problems and Solutions
A handbook for Maryland attorneys navigating a range of discovery problems. (Co-Author)
Pleading Causes of Action in Maryland, 3rd Edition
THE starting point for drafting virtually all initial pleadings in Maryland and a MICPEL best seller. (Co-Author)
Appellate Practice for the Maryland Lawyer: State and Federal, 3rd Edition
Maryland’s most authoritative book on appellate practice. Includes in-depth interviews with appellate judges and DVD videos of actual oral arguments in appellate courts. (Co-Editor)