by Kathleen B. Havener
The morning news droned in the background while I groggily prepared for my day. My ears perked up when the newscaster turned her attention to an ongoing criminal trial that was captivating the media-and, therefore, the whole country. The fate of a famous defendant would be placed in the hands of the jury later that day, she said. Closing arguments had concluded the previous afternoon. A well-known legal affairs commentator described the defense lawyer's closing argument: "Spellbinding!" he gushed to the newscaster. "The jury was enthralled."
Of course trials are riveting. That's one of the reasons they have been the subject of plays since the dawn of Western theater. The earliest courtroom drama I know of is The Eumenides (458 BC), the third play of Aeschylus's crowning trilogy, The Oresteia. What a trial. The goddess Athena presides as judge. The defendant Orestes is on trial for the murder of his mother, Clytemnestra. Apollo himself is Orestes's advocate. Orestes admits that he murdered his mother but argues that he was ordered to kill her to avenge her murder of his father, Agamemnon. Twelve honorable citizens of Athens are called upon to vote on Orestes's guilt or innocence.
When Orestes-who is being tormented by the hateful Furies-needs a bit of encouragement to set out for Athens to face his trial, Apollo confidently reassures his terrified client, "With people there to judge your cause and with the force of speech, the spellbinding power in words, we'll find a way to free you from misfortune."
The "spellbinding power of words" will win the day. For 2,500 years, that power has remained key to the client's success. We all know, however, that it's the rare lawyer who can enthrall a jury. None of us can claim to be routinely spellbinding. Indeed, some of us frequently cast a spell over the jury like the one the wicked fairy cast on Sleeping Beauty.
Surely we want to captivate the jurors with our courtroom delivery, not lull them to sleep.
Consider, as you contemplate how to go about enchanting your courtroom listeners, who your competition is. Real-life people who present for jury duty know little to nothing about real-life courtrooms and trials. They don't know about the hours of waiting, the insufferable boredom, the endless delays, the frustration of being excluded from the sidebar conferences. Instead, they know Law & Order, The Practice, Presumed Innocent, A Civil Action, and A Time to Kill. If you're lucky, they might still remember To Kill a Mockingbird and Anatomy of a Murder. If you're not, they know Ally McBeal and Legally Blonde. Jurors aren't prepared for 20 minutes, much less two hours, of painstaking detail and brilliant analysis. So if that's what they're going to get, you'd be well advised to make your case as entertaining as possible.
The best lawyers understand that every trial is inherently dramatic. But while every play revolves around a central conflict, a trial is more multilayered: It is inevitably a conflict about a conflict. The subject of the underlying conflict is an event-a doctor's negligence, a spouse's betrayal, a hostile act in the workplace, an accident, a crime, a theft of trade secrets, a public securities offering. On a human level, each conflict sparks feelings of frustration, anger, even the desire for vengeance. By the time of the trial, which is the only aspect of the conflict that the jury sees, each side has woven its own dramatic tale of the event, casting its client as the protagonist, the hero, the good guy, and the other side as the villain, the antagonist, the bad guy. The jury is called upon to determine which of the stories is true, within the appropriate degree of probability.
Advocates have much in common with actors. Both professions have been scorned by other elements in society-actors since the dawn of their profession, lawyers more recently. Acting is done in works called "plays": The actor is "playing" a role, temporarily deceiving the audience. Thespis, the originator of Greek tragic drama, was asked once after a performance, "Aren't you ashamed to be telling so many lies before so many people?"
As for lawyers, well, we all know what people think about us. In a 2002 nationwide survey by Columbia Law School, more than one-third of Americans said they believe that lawyers are dishonest. Remember the joke "the only difference between a lawyer and a liar is the spelling"? By virtue of our duty to represent one side against the other, we become more likely in the eyes of the public, and therefore the jury, to gloss over or even make up things to serve our own purposes.
What actors and trial lawyers actually do is even more similar than the public perceives. To be effective, both must be commanding, persuasive, and credible. Both must win over their audiences. And both must accomplish these daunting tasks with the only tools available to them, their voices and their bodies. For actors and lawyers, the key to a winning performance is not what they say but how they say it.
All lawyers have physical and vocal tools within them to transform their next trial, even one that is utterly mundane or mind-numbingly complex, into a drama that keeps a jury not merely interested but spellbound. The key to great advocacy, like great acting, is authenticity. Drawing from experience is a basic element of the contemporary actor's craft. In method acting, the actor reads the script with an eye toward understanding the character, then assimilates the character into her own emotional makeup and life experience. Even though the character and the story are fictional, the actor's performance is based on her own truth. It is the truth of the actor's performance that conveys the truth of the story and induces the audience to believe and become involved in it.
Lawyers employ this same authentic approach. Trials, regardless of the nature of the issues at stake, always have an emotional component. Lawyers must somehow find ways to appeal to the fact-finders on an emotional level. Instead of simulating emotions by playing the "role" of the angry, disappointed, grieving, or frustrated lawyer, a good advocate, like a good method actor, bravely allows the jury to see that she is a human being who feels what the facts of the case really cause her to feel. Instead of adopting a courtroom demeanor, the lawyer recognizes that she is engaged in a real human drama and that the judge and the jurors are real human beings who react to evidence as real human beings. Authentically sharing or even anticipating a reaction is effective advocacy.
The real challenge to this technique may simply be allowing yourself to be a person whose feelings are sufficiently invested in the case to be perceptible to the jury. If your case involves a child who's been injured, for example, imagine a child you know being similarly injured. Regardless whether you represent the plaintiff or the defendant, your authentic emotions about the child's injury will benefit your client. From the plaintiff's perspective, you will convey the anger, the grief, all the losses that your client must endure. If you represent the defendant, your authentic sympathy for the injured child and his family allows you to defend your client-whose lack of fault you can still convey with bona fide conviction-without appearing to be hard or unfeeling. If corporate espionage is at issue, imagine how it feels to have someone steal something important from you, and use that emotion. If you represent a defendant in a commercial case, think of how it feels to be wrongly accused. If you represent a potentially responsible party in an environmental action, remember the frustration you feel when you are certain you've done everything according to the rules, only to be told you've got it wrong. Representing the government in the same action, imagine having someone dump toxic waste in your own front yard. The jury must see you as a human being, vulnerable and sincere, with the appropriately responsive level of personal emotion or even passion, if you are to tell your client's story authentically.
Of course, the best lawyers are great storytellers. Just using the phrase "Let me tell you a story" is a powerful means of pulling in your audience. Good lawyers, like good storytellers, take disjointed, sometimes inconsistent information from a variety of witnesses and transform it into a coherent, persuasive human narrative. The craft of storytelling helps to establish a theory of the case, a plausible explanation of the underlying events presented in the light most favorable to the client. Storytelling also develops the trial theme, the lawyer's mechanism for adding moral force to the desired outcome, appealing to the jury's sense of right and wrong by explaining who did what to whom, and why. The story also should highlight a universal theme: power, greed, envy, revenge, good and evil, loyalty and deception, fear and courage. The themes and subthemes of your case are focal points-flashing signs-that announce, fortify, and remind your audience of what you are communicating.
Storytelling is important in the courtroom because people are accustomed to hearing stories in ordinary conversation, and because stories ordinarily help arguments seem more sensible . You don't tell your story only in your opening and closing; use jury selection, opening statement, direct and cross examination, and closing argument to thoroughly weave your tale and lodge it in the jury's consciousness. Winning advocacy depends upon repeating and reshaping the story, as nec- essary, to the circumstances. Instead of an attempt to discredit or destroy the witness, for example, cross-examination can be a mechanism for putting the witness's testimony where it belongs. Where the testimony fits into your story, weave it in; where it doesn't fit, help the jury to deemphasize or even disregard it. The jury wants to feel it is doing the right thing. Telling a believable story, and asking the jurors for the ending you desire, helps them to feel good about themselves.
Authenticity
Actors use techniques to help them weave believable tales. What can we learn from them?
First of all, let's just face it: For many of us, even the most experienced, going into court is difficult. In some way and on some level, all of us are tempted to put on armor to protect ourselves from the inevitable adverse rulings, occasional insults, and other vagaries of the courtroom experience. The trouble is that if you're wearing armor, you don't walk, talk, or maybe even think like yourself. The jury can see it. At best, your performance will be unnatural; at worst, you will seem untrustworthy. You must discard your armor and trust that your ego will survive. You must be your authentic self. Just as emotional honesty is essential to an actor, it also is critical to your performance at trial.
You can prepare to play yourself in court by rehearsing the role in your day-to-day life. For example, instead of shutting yourself in your office and carefully composing an opening statement on your legal pad, or even drafting an outline, invite your best non-lawyer friend to lunch. Tell her about your case. Pay attention to how you explain your theory of the case and how you buttress it with facts. Pay attention to your voice, your tone, your words.
You'll find that your explanation to your friend isn't boring at all. In fact, it's even kind of thrilling because your own excitement about the human story comes through. You like your friend. You want her on your side. You communicate all the passion and confidence you really feel about your case because you truly want your friend to understand your position. You tell your story with authentic feeling because you're caught up in it and you want her to be caught up in it too.
You will use the right words naturally. And, as Mark Twain said, "The right word is to the almost right word as lightning is to the lightning bug." When you tell your friend about the case, your words will flash like lightning. You will own the story, and, in owning it, the right words will simply flow out of you. You'll be convincing and, most importantly, you'll be yourself. Congratulations. You've just prepared your opening statement.
Now all you have to do is tell the jury the same story you told your friend. Use the same tone, the same words, the same manner. You want the jury to feel your interest, your passion, and your comfort with your own position, just as your friend did. What jurors want to hear-in words that light up the skies-is your story of the case and your feelings about the matter. Ay, there's the rub. Just as a performance onstage with an audience is an entirely different experience than any rehearsal ever can be, your performance in the courtroom will never feel like lunch with a friend. But you can still deliver a convincing performance, just as an actor does, by holding on to the awareness that you are not simply performing. You are engaged in a give-and-take: You are communicating and you are listening.
Listening, too, is a skill that both actors and advocates must develop. If an actor merely listens for a cue, the performance lacks electricity, and the lines sound like exactly that-lines. But when an actor really listens to the other actors, the performance is alive and genuine, even though they have the same conversation onstage every night. To the audience, the actors seem to be really communicating-because, in fact, they are. Lawyers should learn from them. Not listening to a witness's answers is asking for problems with your examination. Not listening to the jury-not paying attention to what it is communicating without words through body language, eye contact, and expressions-is flirting with disaster.
When you talk to the jury, look at the jurors-watch each one just as you looked at your friend. Like an actor in live theater, pay attention to how the audience is receiving you, and adjust your delivery accordingly. The subtle signals you pick up from the jurors will tell you what you might need to repeat, emphasize, or downplay. These adjustments aren't difficult to make; you just need to relax and let yourself be the person you ordinarily are.
Also pay attention to your own body language, and not just when you speak. Your mother was right-stand up straight.
You don't need to stand at attention like a guard at Buckingham Palace, but pay attention to your posture. Show respect for where you are and what you are doing. You owe respect not only to the jury and the judge but also to the courtroom itself and your place in it. Actors pay attention to their posture because good posture helps the whole body move more fluidly, and they literally feel more confident. In addition, good posture helps you to project your voice without strain because your diaphragm has more room to do its work. Because your breath supports your voice, everything that impacts your breathing is important. And, as every actor knows, a person with good posture is more pleasing to watch. Slouching is distracting.
Don't forget that even when you're not speaking, you're not invisible. Just as actors must remain in character whether or not the scene revolves around their role, you must be conscious of how you look to your audience at all times. Jurors will certainly notice how you conduct yourself, in the spotlight or not. Leaning back in your chair looks sloppy and inattentive. Remember the "bad boys" in junior high who slouched in their desks at the back of the classroom? Somehow, they made their languorous physical posture convey haughtiness and superiority. Hunching makes you appear as if you don't care what's going on, so sit up straight. Letting your eyes wander doesn't make you look thoughtful, it makes you look bored. As the day wears on and your level of fatigue increases, you might have to force yourself to pay attention to your demeanor; but if you look like you're bored and fed up with being in court, think how the jurors may feel about being there. Another thing about the time that you're not center stage: Everyone knows lawyers who will drop something, have a sudden coughing fit, or use some other ham-handed tactic to distract the jury when an important piece of (harmful) evidence is introduced. Like an actor's upstaging someone else onstage, it's usually obvious to both the jury and your opposing counsel, and it's both annoying and rude to observers. It's also likely to backfire in court: Your counterpart may simply repeat the evidence, using your antics as an excuse, and hammer the harmful point home to the jury.
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If you haven't argued in that courtroom before, one thing you'll certainly want to do in advance is visit the courtroom and get familiar with your stage. How are the acoustics? Are there dead spaces from which the speaker cannot be heard? Is the room grand or intimate? What are the judge's rules on moving around the courtroom? You'll do a much better job of owning the room if you know what to expect.
Just as costumes in the theater have psychological importance for the actors who wear them, what you wear to court will impact your performance. The formality and dignity of the courtroom should be reflected in your dress. That said, sometimes the smallest things about your clothing, as with theater costumes, can make an enormous difference. If you know you have to reach up to write at the top of an easel, for example, don't wear clothing that constricts your movement or, worse, rides up when you lift your arms. Make sure your suit fits-no frayed cuffs or torn pockets allowed. The jury will almost certainly note anything that doesn't feel or look right.
A word of warning: In my experience, courtrooms are almost always cold. When I'm cold, I have a habit of crossing my arms to try to keep warm. But body language always conveys a message-folding your arms across your chest can make you look defensive or even frightened, especially for a woman. It can also make you appear overly confident and unwilling to listen to another point of view. It definitely puts a barrier between you and everyone else. You're inaccessible and closed off. So don't cross your arms. Another thing to question is the general belief that a room that is slightly too cool helps people to stay alert. For me, it has the opposite effect; I become drowsy and find it difficult to pay attention. Visiting the courtroom in advance will help you dress appropriately and feel more comfortable.
It's important to know how to be still. Shifting your weight from one leg to the other, tapping your foot, tapping a pencil, and even shuffling papers can make you look nervous or, worse, bored. In the courtroom as onstage, every movement is magnified. Hence, one of the cardinal rules of acting: Every movement must have a point. Don't make a single move without a purpose. If you don't have somewhere to go, stay where you are. Be still. Stillness conveys serenity and confidence. When your own enthusiasm spurs you to approach the jury to make better contact (if the judge allows it) or raise your hand to emphasize a point, by all means, do it. Being still as a statue doesn't make you serene-you may just seem to be made of stone.
Forget fears about what to do with your hands. People who are engaged in a comfortable conversation, whether speaking or listening, don't have to worry about what to do with their hands. When you forget about your hands altogether, they'll do what they usually do-they'll become part of the way you express yourself. If you are nervous about your hands, give them something to do, or keep them at your sides. But whatever you tell your hands to do, don't forget the basic rules of hand etiquette:
- When sitting at counsel table, keep your hands open and relaxed on the table, not in your lap. Like cops, observers in the courtroom want to see your hands at all times.
- Don't clasp your hands behind your back or in front of you. It makes you look childish and guarantees that you won't be able to use them to help you make a point.
- Never use your hands to cover your face. In fact, don't touch your face. Don't touch your ears, your nose, or your head. Don't rub your eyes or fuss with your hair.
- Don't tap a pencil or drum your fingers. For heaven's sake, don't crack your knuckles or clean your nails.
- Don't do anything in court that your mother taught you not to do in public.
All of these habits are incredibly distracting (and some are downright disgusting). Keep still. Stay calm.
Even the most experienced actors have to deal with stage fright. As Jerry Seinfeld jokes, "That means to the average person, if you have to be at a funeral, you're better off in the casket than doing the eulogy." Most actors say that the extra edge of adrenaline improves their stage performance. But being a lawyer who can't keep stage fright under control can seriously impair your performance. It can make your voice tremble and your hands shake, and make you feel and look incompetent even though you aren't.
Stage fright happens only when you're concentrating on yourself. Focusing on something else will banish stage fright, but that isn't always easy to do. Fortunately, though, there are simple ways to deal with stage fright, including the following:
? Remember that the jury is more important than you are. Your purpose is to make them feel comfortable and to help them understand the case in the right way.
? Know that fear is contrary to your purpose. In fact, it can project such a negative feeling that it makes you seem hostile. Pretend instead that the jurors are your guests; you'll forget your own fear if you're trying to make sure the jurors feel welcome and important.
? Breathe as deeply as you can, concentrating on inhaling to a count of four and exhaling to a count of eight, for a series of ten breaths. Consciously relax your shoulders while you breathe. Just the exercise of concentrating and controlling your breathing really will go a long way toward calming your fear. Deep breathing can even lower your blood pressure.
? Consciously relax your jaw. This will help you to sound normal- especially to yourself-when you begin speaking, which will make you feel more comfortable right away.
? Never act or feel rushed. Your presentation isn't a race. Express every important word, and speak so that the whole room can hear you. If you feel pressured to hurry, deliberately slow yourself down, at least until you feel calmer.
? Pretend that the people who are listening couldn't intimidate you if they tried: your daughter's Brownie troop, your kid brother, the guys you play poker with once a month, a gang of cartoon characters.
? Think of yourself as a member of the trial team. It will draw your focus away from yourself and remind you that others matter as much as or more than you do.
? Believe in your position, and believe the story you are telling. When you believe with all your heart that you know the truth and are the medium that can convey the truth to the jury, your fear will almost certainly abate. Enthusiasm and conviction are good qualities, not negative ones.
? If your true fear is that you will fail in front of your colleagues, remind yourself that your feelings about the case are for the jury, and that no one else matters. Forget about what your colleagues think. They don't deliberate and they can't deliver a verdict. In the courtroom, they are irrelevant.
? Pay attention to your voice. Controlling your vocal inflection helps communicate your ideas, and it automatically helps you control your breathing.
Inflection is especially important. Without inflection, actors would be unable to communicate the real action of the play. "Just remember," said the English classical actor Donald Sinden, "there's many an actor sleeping on the embankment tonight, with no soles to his shoes, for lack of an upward inflection."
Lawyers too should pay close attention to inflection. It is not simply a trick to make your delivery more interesting. Inflections have meaning in language; indeed, they are buried in the deepest structures of our natural speech. They are as critical to spoken communication as punctuation is to writing. They act as signposts, signaling our intention to continue or to stop speaking, to pause or to yield the floor. Because inflections are drawn directly from natural speech, they are not only authoritative, expressive, and persuasive but also real and natural.
In general, falling inflection in English speech is used to create a sense of finality (
Our job here is finished); to complete an idea (The whole is equal to the sum of its parts); and to signal an end to listening (
I have nothing else to say). Rising inflection, by contrast, sometimes indicates a question, or makes people want to hear more. Upward inflection can also highlight a key word (
I like most candy, but my favorite is licorice); instruct the listener to follow an alternate course (Don't go right,
turn left); delineate and articulate a series to provide momentum
(First it's blue, then
green, then
red); and arouse enthusiasm or stimulate excitement (He's innocent, I tell you).
Sustained inflection can be used to create suspense; it defies interruption and cues listeners to wait for the end of the story (
He went to the door. He turned the knob. He heard breathing in the room... ).
When you need real power in your speech, forget volume. Utilize instead rising, falling, and sustained inflections. Try this exercise. Say the following sentence aloud as if it is a simple declaratory sentence in an opening argument: The light was red. Then say it with a rising inflection The light was red ; with a falling inflection, The light wasred ; and finally with a sustained inflection,
The light was - red.
The effect of each statement is as follows:
Rising: You're contradicting a story.
Falling: You're admitting you ran a red light.
Sustained: You're leading up to the end of the story (...
but he didn't seem to slow down, and then...).
Practice until you feel and understand the differences; then remember them. You will soon appreciate that it's not the words that matter-how they're spoken gives the words power.
Another powerful tool available to you is silence. All actors know that sometimes a pause between lines is not just appropriate but crucial to the scene. Use silence before you begin to speak, to get everyone's attention. Use silence instead of filler, like Um.... Before you make a critical point that you want to drive home, pause for a long moment. Take a sip of water. If the other side or the gallery is making noise and distracting you, or the jury, stop talking until the room is quiet again. The room is yours, after all. When jurors are surprised by something, they need a moment to absorb what they've heard. That calls for a strategic pause. If you make the jury laugh, stop and enjoy the joke along with them. Remarkably, the more you use silence effectively, the less anxiety you will feel.
Although you should never write out your arguments, rehearsal, as with acting, is critical. Tell and retell the story as you told it to your friend at lunch. Do this alone (in the car, the shower, or the privacy of your office) or draft an audience (your non-lawyer buddies, teenage children, a patient spouse). If having an outline helps you not to miss a point you want to make, jot down single words or key phrases rather than a script of the entire argument. A script is a crutch, and if you have a crutch, the temptation to use it will be almost insurmountable. Anyone who has ever acted knows the importance of being "off book." You can't be in the moment if you're reading.
Instead of making your topics seem like stilted memorization, rehearsals simply make you more comfortable saying the right words, which may not be words you use every day. Rehearsing your argument is like a singer's doing scales-practicing what you will require of your voice and articulating what your mouth will express. In this case, familiarity breeds comfort, not contempt.
Be sure to prepare-and use-a list of props. Not having the right demonstrative at the right moment makes you look amateurish and disorganized. Just like the prop master of a theatrical performance, your trial team should have a detailed, sequentially itemized list of everything you will need during trial, from demonstrative evidence boards and photographs to murder weapons and the errant piece of machinery. Don't forget to add your opponent's props, if you can use them to your advantage, to your own list. Review your list at the beginning of every trial day-you or an assistant should literally see and touch each item on the list to ensure that it is available and operative . Recheck your prop list before each witness takes the stand. Make sure you have everything you need for whatever you're about to do, that you know how to handle the material and can smoothly store it when you are done. You want the jury to focus on what you're trying to convey, not on how precariously the demonstrative is balanced on its stand or how distracting it is that the photograph you've just finished using was set aside upside down.
Jurors don't care about abstractions, figures, corporate administration, and contractual terms. They care about right and wrong. They care about fulfilling their duty. Whether your case involves the most complicated corporate relationships or the most basic human drives, or both, it is your job to convert the facts and law into a believable and compelling tale that will carry your jury to the right conclusion. With a little practice, you can use the "spellbinding power in words" to persuade juries of the rightness and justice of your cause. All you have to do is play your part.
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Kathleen B. Havener is with Hahn, Loeser & Parks LLP in Cleveland, Ohio.