Well-spoken at 94: Justice John Paul Stevens

To see and hear an extremely well-spoken retired Supreme Court Justice, click on the link below. Now 94 years old, Justice Stevens is better spoken than most of us in our prime. Does a lifetime of writing, speaking, and thinking carefully about language lead to such erudition? How can the rest of us emulate his  method of speaking so well?

Justice Stevens has a new book called, Six Amendments: How and Why We Should Change the Constitution. Whether you agree with him or not, watch this video to observe a thoughtful, honorable public servant speak on the important issues facing us.

Read Justice Stevens’ bio here.

A Simple, Reliable Script for Impeachment by Prior Inconsistent Statement


by Marsha Hunter

Listening to the direct examination of opposing counsel’s witness, you hear what you are fairly certain is an inconsistency from his deposition. Your internal “Impeachment Alert” goes off in your head because it is a significant difference. You begin to consider your options.

Looking at the deposition, you confirm that you are correct. You now begin to plan where in your cross-examination you will insert the impeachment, considering how sympathetic he is, what you need from him before he becomes defensive and annoyed, and how the dramatic arc of the impeachment would fit into the examination.

Your heart begins to beat a bit faster—you now must rise to the challenge of executing a smooth impeachment. If you fail to get the order right, inject the proper amount of scorn/surprise/incredulity in your voice, fumble with pieces of paper, or forget to ask the judge to approach the witness, you risk looking foolish and unprofessional. This has to go well, or the fact finder might not fully understand what’s going on.

If you have practiced for this, your heartbeat will slow with a few deep breaths at counsel table. Just in case you haven’t practiced lately, though, here is a refresher. The skill of impeaching by prior inconsistent statement needs visiting occasionally, since you may not get a chance to use it often. When the opportunity presents itself, you can have fun if the ritual is clear in your mind.

Why do I say this is fun? Because this is where you come as close as you’ll ever get to being an actor in a TV or movie courtroom scene. You can be amazed, incredulous, or sarcastic! Let your hair down and act shocked. When you finish, you can resume your normal professional persona, but don’t forget to enjoy yourself.

I call it a ritual because that is a fair and accurate way to characterize it. Impeachment unfolds in a predictable order. It has a beginning, a middle, and an end. The first few steps are almost always the same. The last step should always be the same. The middle can be short and sweet, or longer and more torturous for the witness—your choice, as long as you have the following options on the tip of your tongue.


Q:        (voice dripping with disbelief and amazement)  Mr. Witness, are you telling this jury today that the light was GREEN?

A:         Yes, the light was green.

Q:        (collecting yourself to be professional)  This isn’t the first time you and I have talked about this, is it?

A:         No.


(You may make this long or short depending on what has been going on in court. You may have already impeached this witness, so you won’t want to draw this out. This may be the first impeachment in the trial, giving you more leeway to linger on the drama. It is your call.)

Q:        You came to my office for a deposition.

A:         Yes.

Q:        It was two months after the accident, correct?

A:         Yes.

Q:        Much closer in time to the accident than today?

A:         Yes.

Q:        When you came to my office for your deposition, your attorney was with you.

A:         Yes.

Q:        There was a court reporter there.

A:         Yes.

Q:        You took an oath to tell the truth?

A:         Yes.

Q:        You told the truth.

A:         Yes.

Q:        After your deposition, you had a chance to read it.

A:         Yes.

Q:        You could make corrections?

A:         Yes.

Q:        In fact, you did make corrections that day.

A:         Yes.

Q:        You also had a chance to sign your deposition.

A:         Yes.

Q:        And, you signed it.

A:         Yes.

Q:        You signed it to show you approved of what was in it.

A:         Yes.

(If the witness needs a copy of his deposition, you may want to hand it to him, or alternatively, show him your copy as you continue the examination.)

Q:        Your Honor, may I approach the witness?

Court: Yes you may.


(Now you have two things to accomplish. Show him the prior inconsistent statement, and read it out loud. Get in, and get out. Do not let him read it or give any opinion about it.)

Q:        Do you see Page 38, Line 14?

A:         Yes.

Q:        “Question: What color was the light? Answer: The light was red.” Did I read that correctly?

A:         Yes.

(Alternatively, you may ask:)

Q:        “Question: What color was the light? Answer: The light was red.” Is that what it says?

A:         Yes.

That’s it. You are finished. STOP! Do not ask, “Is that what you said?” He will argue that she did not say it. Do not ask, “Were you telling the truth then, or today?” He will say, “Today.”

Here is your simple structure, consisting of a succinct beginning and ending, with an expandable middle:

Beginning:      Are you telling us today……?

Middle:           This isn’t the first time we’ve talked about this, is it? (Your dramatic                                           retelling of The Story of His Deposition.)

End:                Did I read that correctly?

My goal is to keep the structure as simple as possible, so you can think of it while you are in the midst of a cross-examination.

What are your ideas? How do you execute a smooth, reliable impeachment by prior inconsistent statement?

Photo by Eric Chan, Wikimedia Commons

Book Review: Willpower

by Marsha Hunter

At the NALP Professional Development conference last December, Professor William Henderson mentioned in passing a 2011 book called Willpower: Rediscovering the Greatest Human Strength. He gave it such a hearty recommendation that I jotted down the title, bought it, and devoured it on a long plane ride.

By Roy F. Baumeister and John Tierney, Willpower is the epitome of the well-written, research-based volume so popular these days. I love this type of book because it gives me great ideas  for my students. This one is chock full of baby-step action items that give us all hope we can gain control over our lives and lose weight while we’re doing it. It is good-natured and amusing as it tackles a weighty topic.

Here is one of the book’s biggest ideas: Making choices all day, even insignificant ones such as what to do with all the stuff in a drawer we’re cleaning, depletes our willpower in general. It takes discipline to decide things, and after we’ve done that for several hours, our brains are worn out. We use glucose while exercising the self-control of decision-making, and when our glucose levels are low, so is our ability to regulate our behavior. Been in a mediation session for several hours? Your glucose levels are low because your brain has used the available supply. You are in danger of reaching for the Girl Scout cookies at the same time that fatigue is leading you into poorer choices.

“Glucose depletion can turn the most charming companion into a monster…If you have a test, an important meeting, or a vital project, don’t take it on without glucose,” say Baumeister and Tierney. Just don’t eat refined sugar to prepare for your day and sustain your energy. Eat something nutritious. Have a healthy breakfast, and carry healthy snacks with you (an apple). Sugar is bad for you, and what’s bad for you is bad for your clients.

What does Willpower have to do with advocacy or public speaking? Willpower is crucial to learning new habits. Correcting bad habits helps develop willpower muscle. In a chapter called “Can Willpower Be Strengthened?” the authors urge you to engage in continual monitoring and improvement of habits you would like to change. Such conscious effort increases stamina to exercise willpower. In effect, you’ll be making many small decisions to stay disciplined by correcting old habits, which strengthens stamina. By strengthening mental stamina, your willpower lasts longer. You can stick to a task requiring willpower and remain sharp if you have more endurance to keep at the heavy lifting of continual decision-making. Speech habits are a great place to start.

Speech habits are “deeply ingrained and therefore require effort to modify,” write the authors. Which speech habits can you work on? Baumeister and Tierney recommend concentrating on speaking in complete sentences, eliminating “like” and “you know,” and avoiding contractions such as “couldn’t” and “can’t.” I suggest eliminating the monotonous uptick of uncertainty at the ends of phrases and sentences. Challenge yourself to hear the habit, then eliminate it. End more sentences with a downward inflection.

If you want to get straight to the weight-loss advice, skip to the end of the book. But you’ll build up your stamina if you read from the beginning. I recommend this book highly, so click here to download it or order it in the convenient, readable-below-10,000-feet printed paper edition.

Willpower Penguin Books



Human Factors for Lawyers: Jet Lag and Sleep

Wake up early to adjust for easterly travel.

Wake up early to adjust for easterly travel. *

by Marsha Hunter

For those of you who travel frequently, I’ve found some new resources for managing jet lag. My favorite right now is called JetLagRooster, which allows you to input your travel plans to help manage that groggy feeling of time-zone confusion. Changing the time you rise in the morning can minimize jet lag.

For even more data, you can download the Anti Jet-Lag app on your phone. It costs $7.99, and is effective. I used it last fall to travel first to Scotland and then to Tasmania, and I’ve never adjusted to radical time-zone change so quickly. The app gives you instructions about how to change your eating patterns to ease the transition to a new time zone.

A few more tips from my recent reading about sleep: plan to rise earlier at home for a few days when you will be traveling east, and when you get out of bed, turn on all the lights. Don’t stagger around in the dark, waiting for the sun to come up. Artificial light is just as helpful when you want to reset your circadian rhythms.

If you are typical lawyer, you may be sleep-deprived before you leave for your next long trip. Changing time zones is difficult enough if you are well-rested; if you have a “sleep debt,” it could be harder for you.

Some occupations honor sleep and its benefits. Pilots, astronauts, athletes, and performing artists, for example, know that they can’t do their jobs if they aren’t refreshed from good sleep. One study suggests that an optimum amount of sleep for a developing world-class figure skater is 10.5 hours per night! Professional athletes sleep as much as they can. Airline pilots have sleep requirements written into their contracts. Dancers don’t dance well without proper sleep, and opera singers don’t sound good if they are not properly rested.

Doctors and lawyers, however, are notoriously bad at getting enough sleep. Woe to those of us who arrive at an emergency room to be attended by an experienced anesthesiologist who has been on duty for 24 hours. And if your lawyer has been burning the midnight oil for too many nights in a row, how much would you be willing to pay per hour?

Human factors studies show that error rates increase as the amount of sleep decreases. Reaction times slow, and judgement becomes impaired. Sleep deprivation can be dangerous. Chronic sleepiness also makes us feel bad, and takes a toll on our health. Frankly, I don’t talk about it much with lawyers, not even when I have a client who is clearly sleepy and looks worn out. Lawyers think they can’t do anything about it. And after several years of getting too little sleep, they may think that feeling tired is normal. It’s not.

To convince you, I recommend another resource, a terrific book short enough for busy lawyers to add to a reading list. It is called Sleep: A Very Short Introduction, by Steven W. Lockley and Russell G. Foster (part of Oxford’s series of Very Short Introductions, available as e-books). Reading it will help you remember that feeling well-rested is not only normal, it is healthier, safer, and much more fun.

And now, take a nap! You have my permission.

* Sunrise over Four Peaks, with Camelback Mountain in the foreground. Photo by MHunter.

Quiet Body, Active Brain

Monday morning, in Federal Court, I watched a lawyer stand perfectly still and deliver an opening statement with virtually no fluency errors. He spoke in an assertive, respectful voice that could be heard easily in the courtroom. His eye contact with the judge was steady. The pace of his language made him easy to understand.

Even though he “stood perfectly still” from the waist down, his smooth, slow, mindful gestures helped him think through his opening. He rarely looked at his notes. When Brian Johnson and I had worked with this lawyer on Friday, he was torn between reading a detailed document, and taking the leap to trusting his opening remarks to memory and bare-bones notes. He instinctively felt the version he read was boring, while his extemporaneous version was exciting (this is a compelling, outrageous case, and he was in danger of making it dull). I had come to court to see what he would do.

I was overjoyed that he took the leap! It takes courage to choose eye contact over reading, self-confidence over safety. His bonus prize: he launched a day’s trial by exhibiting calm, cool, collected confidence. He is, after all, the expert in the room, the most knowledgeable and well-informed of the facts and nuances of the case. He rose to the occasion.

Later, on direct examination, he flowed back and forth between reading questions and formulating extemporaneous queries, again using his hands to help develop his ideas. Though I’d have liked to see and hear less reading, the direct was well-crafted, helping the witness tell his facts clearly and with authority. The witness came off very well. And when the lawyer needed to ask a question that wasn’t scripted, one that emerged from the testimony in real time, he had already established a manageable pace for his questions, and was able to think of his questions with little effort (or so it seemed).

What can we learn from this anecdote? Quiet your body to keep your brain focused. Be still from the waist down, make eye contact 98% of the time, do not feel rushed so you speak too quickly, and let your instinct for gesture guide your language. It could be a long day in court, so set yourself up for excellent delivery from the first sentence you speak.

The Power of Silence in Public Speaking

It’s not unfair to say that lawyers like to talk, and many are especially good at it. But the flip side of being a good talker is being a good listener. The very silence that your client may need to understand what you are saying is the kind of silence that allows her the time to talk and ask questions. Active listening can only happen in purposeful silence.

Brian Johnson’s article in the January issue of Arizona Attorney delves into research on how the human brain works and why silence is so powerful.

Nailing Your Direct Examination

by Marsha Hunter

You might be interested in my article in the Fall 2012 Newsletter for The Woman Advocate, American Bar Association Section of Litigation. Brian Johnson and I are hoping to improve the way we teach direct examination in trial skills programs, and we’ve been intensely focusing on it for over a year. It isn’t an intuitive activity.

Here’s the link. We welcome your comments.

Nailing Your Direct Examination
By Marsha Hunter
Successfully pulling off a compelling witness examination may require turning conventional wisdom on its head.

A Pox on Teleprompters for Public Speaking

by Marsha Hunter

While the Democrats get their convention underway in Charlotte, I have a couple of things to say about my least favorite public speaking tool, the teleprompter. I hate them and wish they had never been invented.

At last week’s Republican convention, the speakers used them throughout, of course. There is no other option. Democrats are using them this week. The fear of misspeaking and gifting a laugh line to comedians or the opposition’s negativity sharks is too great. So everybody, Clint Eastwood excepted, has to use a teleprompter, making them all sound the same, look the same, talk like robots, and stop thinking about anything except reading off the teleprompter.

(Regarding Mr. Eastwood, he proved the point Brian Johnson and I keep trying to make: actors are often lousy public speakers, most especially when they don’t bother to rehearse. Please do not use them as role models. Q.E.D.)

The art of remembering what to say is dead. Wouldn’t we love someone who could hold her own when she looked straight at us and talked? Someone who was sure of her opinion? Someone who didn’t have to think backwards to what a focus group told her campaign? Someone who actually, really, unbelievably, KNEW what to say?

Reading a speech was always an art. Churchill could do it, especially when his country was threatened with annihilation. (Motivation!) There was once a great tradition of reading beautifully, of reading at a pace that made sense. But now, so few speakers can read well that it is not just endangered, it is extinct. I think the teleprompter killed it.

A political disclaimer: I’m a registered independent who has actually voted for different parties. So the dog I have in this fight is a linguistic purebred, not a political mutt.

Here are my core complaints about folks who read to us from teleprompters:

They read too fast. Their delivery is monotonous, and at these conventions, they are shouting. Monotonous shouting wears out its welcome very quickly. Tele-readers look like deer in the headlights as they shift focus from the screen to the people who are listening. People who look scared make listeners uncomfortable. When people read off a teleprompter, they have never practiced enough, so they stumble and misspeak, partly because they read too fast (see above). Reading, which happens in a part of the brain not connected to improvisational speech, shuts off the thinking brain. Once the capacity and gift for improvisational speech withers, it is very difficult to get it back again. So here we are, arrived at a cowardly new world of mediocrity. The art of thinking and then speaking is lost because everyone is afraid to make a mistake.

When a speaker reads, natural gesture disappears. At these conventions, we’re seeing an endless parade of “baton gestures,” hands that do not enhance the message but instead merely beat time to the rhythm of language that is already too fast. Because the verbal delivery is unnatural, these time-keeping gestures make the speaker look uncomfortable. They reinforce a listener’s discomfort.

Once a speaker falls into a speaking rhythm that is unnatural (reading), and then keeps time to that rhythm with repetitive baton gestures, they are stuck in a rut that few can escape.

Partisans excuse their own politicians, and then criticize the opposition for their mediocre teleprompter skills. For an Arizona teleprompter fail—I grew up in and currently live in the Grand Canyon State—see this Fox News clip about Republican Governor Jan Brewer.

Now, really.  How many of us could not have finished that sentence? Come on! What courageous citizen will run for office using his own brain instead of a video feed of vetted party-speak? What elected official will honestly tell us what happened and what they think of it? They would more likely consider jumping out of an airplane without a parachute. Most will consider me a crackpot for suggesting it.

We ought to have stiffer standards for running for office than the ability to limp through a speech on a teleprompter. We can do better. And so can you, every time you stand to speak. How? Talk to your audience, don’t read.

Vow that you will be better than politicians!


Is Um an Honored Part of Speech?

Is um an honored part of language?

In July a student of mine recommended an essay in Slate called An Uh, Er, Um Essay in Praise of Verbal Stumbles. He asked me if I’d heard the theory that um is a useful, time-honored part of language worthy of preservation. Perhaps the lawyer’s common goal of banishing it from oral advocacy, courtrooms, and other professional speech, he postulated, is misguided. We could chill out about um, in other words. Rather than being an impediment to fluent speech, it helps us think.

Author Michael Erard is a staunch defender of such dysfluencies, having written a 2007 book called Uh…: Slips, Stumbles, and Verbal Blunders and What They Mean. While some of the book’s history of spoonerisms and malapropisms was amusing, his defense of um as an important part of verbal communication was tiresome. In Slate, he returns to that theme:

“But “uh” and “um” don’t deserve eradication; there’s no good reason to uproot them. People have been pausing and filling their pauses with a neutral vowel (or sometimes with an actual word) for as long as we’ve had language, which is about 100,000 years. If listeners are so naturally repelled by “uhs” and “ums,” you’d think those sounds would have been eliminated long before now.”

We humans have had lots of bad habits for more than 100,000 years. We’re still working on stamping out murder, slavery, rape, typos, war, and spelling errors, among a lengthy list of sins great and small. The idea that something is valuable because it has been around for a really long time is silly.

Language, like the rest of culture, constantly changes, and often for the better, becoming clearer and more efficient. But Erard argues for halting progress. Positive reviews on his Amazon book page pre-emptively strike at stuffy self-appointed anti-ummers who bemoan the poor state of oral communication these days. My impossible uncoolness aside, count me in with the crowd agitating for improvement. Why settle for the rudimentary noises we were making 100,000 years ago? Why not attempt to make language more fluid, or—dare I suggest—more beautifully-rendered?

Erard and his band of pro-ummers have a strange mission. They argue for what they see as the people’s speech, lowbrow and proud of it. I have no problem with lowbrow. Among the Alabama hillbillies from whom I am descended, my Uncle Bobby Wayne enjoyed playing with language, which flowed effortlessly from his brain to his mouth, unimpeded by verbal stumbles. His hilarious analogies, surprising juxtapositions, and quick-witted character sketches had nothing to do with erudition or education. No, lowbrow doesn’t bother me, but willful mediocrity does. Erard’s position that um is worthy of preservation is lazy. His elation over his 20-month-old son’s recently-uttered his first um is mysterious (he considered sending out celebratory greeting cards).

But, to try being open-minded, let’s consider whether Erard might be correct. Where shall we look for evidence? Where is um in speech we admire, speech worthy of preservation? Let’s begin with literary artists who imitate life, playwrights.

Alas—um—alack! Shakespeare, Moliere, Chekhov, Tennessee Williams, and Tom Stoppard (pardon the short list) have apparently failed to notice that inserting ums could make their characters come alive. Why not:

Um To be or um not um to um be, um that is um the um question. Um.


I’ve always um depended on the kindness like you know of um strangers.

If these writers are too highbrow, look for um in working-class conversations in plays by August Wilson or John Osborne. We don’t hear um in theater scripts because it rarely has any meaning whatsoever. Once in a great while, to signal confusion or hesitancy, a playwright may include it in a script. Um is a dull, annoying placeholder which neither advances a story nor reveals deep insight into character; it’s an uninteresting verbal habit, not worth including.

Contemplating the use of um in theater begs the question of why there are none in musicals or opera. Go ahead, try to imagine it. Sondheim: “Send in the um clowns.” Rogers and Hammerstein: “Um. Oh, what a um beautiful um morning.” Parker and Stone, The Book of Mormon: “I believe um the Lord, um God, created the um universe…” Lorenzo do Ponte by way of Mozart: “Un’ aura um amorosa um de nostro er tesoro….”

What about film? If Erard is correct that um is a fascinating aspect of language, surely film, a recent construct in human cultural and social evolution, and often intent on portraying down-to-earth reality, includes it. But screenwriters insert um into a character’s speech patterns only occasionally. Some actors—Hugh Grant, famously—insert blunders and stumbles into a script as a charming movie star mannerism that projects an amiable, common-man gawkishness.

Speechwriters, too, have missed important opportunities to spice up droning, drab prose:

Um Ask um not what, well, um your country um can um do for um you, um ask um what you can um do um for your um country. (John F. Kennedy)

Strange as it um may seem to er many, um, we now demand our right to vote according um to the um declaration of the um government under which we um er um live. (Elizabeth Cady Stanton)

If um is integral to speech, why do novelists leave it out? Why does Mark Twain ignore it, Virginia Woolf skip it, and writers from Pat Conroy to Joyce Carol Oates shun um as an illuminating part of character? Because it is more than meaningless—it wastes time. Readers would be exasperated by slogging through a thicket of ums. Serious writers, like serious speakers, do their best to put the right words into the mouths of interesting characters.

Finally, if dysfluencies are desirable in speech, why not insert them into all writing? Where are the meaningful typos and misspellings in Erard’s article? Perhaps a few strategically-placed ers could help us comprehend his meaning. It might be better to dispense with rules of good writing altogether, since humans have been writing poorly for thousands of years. Why bother with perfection in written language when our standards for speaking are lax?

People do speak without saying um, and we’ve all heard them: politicians, teachers, professors, lecturers of every stripe, talking heads, our friends, perhaps even you, esteemed reader. A fair percentage of speakers express themselves fluently and smoothly with no ums whatsoever. Using Erard’s logic, they are foolish. Inserting various noises and grunts would compensate for their eloquence.

Studies cited in Erard’s article are not supportive of his position. The Slate article refers to research that seems to prop up his point of view, but on closer examination, is not relevant. One refers to silence as an alternative placeholder in conversation (in my opinion, a better choice by far than um for thinking of what to say next). Another appears neutral as to whether there might be a better alternative to um. For example, when speaking to a toddler, um got attention, but were there other noises or words tested as well (such as calling the child by name)? The study merely states that a noise, in this case um, was effective as an attention-getting device.

A Practical Take on Um

Um is a thinking noise. We use it when we have the floor and are thinking of what to say next. In casual conversation, it usually doesn’t matter. We’ve all said um more times than we can count. When we want to be precise and persuasive, as when speaking professionally, it matters because thinking noises interrupt the flow of well-formed, intelligible sentences. Um robs us of that moment to think about our most important ideas and our passionately-held views. Um, er, like, you know, and other place holders are sloppy habits.

At our most eloquent, um disappears and speech is fluent. Think of Martin Luther King’s Dream speech. He spoke the most famous words just after he had laid aside his prepared remarks. King spoke in um-free sentences, which still ring in our collective memory. None of us recalls that he spoke from the deepest convictions of his soul like this:

Um. I um have an, a, um dream. um. That some—um—one um day um this nation will um rise um d….No um up and live out um the um true meaning of um her, no, um its creed um well, you know um that all um men are uuuuuuuh created um equal and um

Erard’s um theory disintegrates finally because he ignores two prime components of how we generate speech—gesture and prosody. Discussions of both are beyond the scope of this article, but keep in mind two crucial facts. First, the movement of our hands and arms which accompanies extemporaneous speech helps us find words, integrate concepts and ideas, and produce orderly sentences. Gesture must be part of a discussion of how we generate speech. Second, the music of our voices directly affects our word choice (see above: Uncle Bobby Wayne), and whether or not we stumble when we speak . Pedestrian delivery makes for drab choices, including um, er, like, you know, or placeholders in any language.

Playwrights, screenwriters, speechwriters, and the well-spoken among us refrain from using um because it is the linguistic equivalent of a dripping faucet: a persistent, annoying noise, always on the same pitch, the same decibel level, and usually of the same duration. Instead of making excuses for letting the lingual faucet drip on ad infinitum, fix it. Take a breath, let a moment of silence fall between thoughts, and, using gesture for expression and lung-power for melody, strive for fluency. May um become an evolutionary vestige of language, sooner rather than later. It shouldn’t take 100,000 years.

Andrew Sullivan’s post has nothing to add, unfortunately. He merely quotes Erard verbatim.

Are You Acting in the Courtroom?

A law student is working on a direct examination during a trial skills program. She is practicing her presentation—how she stands, gestures, and speaks. Each time through the examination, she asks exactly the same questions, with identical intonation. She has memorized this part of the trial, so we stop and talk about that. Why isn’t it possible to memorize questions for trial?

While it may seem obvious to seasoned trial lawyers, it is far from clear for many students and young practitioners. There are several reasons one cannot find comfort in a canned examination:

  • You cannot prepare your witness to memorize each answer for ethical reasons.
  • By virtue of being human, your brain is no good at memorizing something and then reciting it aloud. When we speak words we have tentatively memorized, our recall is poor, making us sound uncertain and robotic.
  • Memorization, even if we were good at it, takes a very long time. Busy professionals don’t have time to memorize long passages. Busy professionals don’t have time to memorize short passages with much flair.
  • Since you wouldn’t be able to accomplish the memorization task, you would give up and try reading instead. We aren’t any better at reading than we are at memorizing. You would be stiff and boring.
  • Something would happen in the courtroom to make your script obsolete. A witness would forget, get lost, or otherwise become a problem. New facts might emerge. Someone will object.

You can think of more reasons, I’m sure. But this discussion leads to an interesting question: are you acting in the courtroom? Are you trying to do what actors do, which is memorize, recite (or occasionally read) and become someone else?

Only you, of course, can answer that question. You may feel you adopt a courtroom persona when you walk into a courthouse, becoming someone other than yourself. That’s what actors do—chameleon-like, they portray different people. When you put on your suit and dress shoes, you may feel different. Fine! However you find your way into the job is your business. If you consider yourself to be doing what Johnny Depp or Scarlett Johansson do, or feel as if you are playing a role, I have no argument with it.

My concern is the execution, how you accomplish the tasks of being a trial lawyer. You are certainly performing. You are improvising as you riff off of answers, objections, and rulings, come up with new ideas, and maneuver to put your overall plan into action. You are an expert in a forum that requires you to be cognitively nimble and extremely well-spoken. Technically speaking, though, it isn’t acting.

Acting is pretending, impersonating, playing different parts, imitating, mimicking, and ultimately adopting characters other than one’s own. Actors may play one character by focusing on a physical characteristic, another by exploiting a certain way of speaking, and still another by using a tricky psychological approach. They spend entire careers honing the art of making their performances look and feel truthful and honest. In the courtroom, you are supposed to be truthful, not pretend to be so.

Actors memorize lines, written by professional writers, that make what they say witty, wise, thoughtful, illuminating, or simply entertaining. As much as your own courtroom scripts are carefully written, they are far from interesting theater or film material. Don’t assume you can write something entertaining. If your talent lies there, go to Hollywood and get a job with far more vacation.

If you feel as if you adopt an alter-ego in the courtroom, OK. Perhaps you are looking for just one consistent character instead of many. You’ll settle for the role of a lifetime and play it over and over. But beware of taking on acting and screenwriting in addition to lawyering.

To prepare for trial, practice your facts, stories, questions, and arguments by talking out loud. Your words will change over time, but you’ll grow accustomed to shaping language within the framework of the trial. Sometimes you’ll be more fluent, sometimes less. Once the trial is ready to start, talk more than you write.

Leave acting to Depp and Johansson, and scripting to Shakespeare.

Thanks to actor and author Harriet Walter, whose book Other People’s Shoes got me thinking again about this question of acting in the courtroom. Her in-depth examination of what actors are up to is down-to-earth and brilliant at the same time. Her book makes clear the difference between acting and everything else.