Handwriting, Memory, and Horizontal Notes

by Brian K. Johnson

Last fall Scientific American MIND magazine featured an article about handwriting and memory. It got me thinking about the value of carefully creating notes for public speaking with pen and paper.

“Minds encode the relative locations of words and paragraphs, a blueprint of thought without which text may be less differentiated, a pile of beams rather than a scaffolding.”

Notes for public speaking are a “blueprint” of your thought. Research suggests that the shaping of letters and words with pen on paper helps your brain remember the words.

In the second edition of our book, The Articulate Attorney: Public Speaking for Lawyers, we devote several pages and illustrations to a concept we call “horizontal notes.”  It dovetails with the idea of a blueprint or scaffolding for thought, and with our gesture research.

Your notes can show you how your hands can move.

Your notes can show you how your hands can move to help you remember what you want to talk about.


Our reasoning is based on an obvious truth. We write vertically down a page, analogous to “a pile of beams” quoted above. But we think and gesture horizontally in space – “a scaffolding.”

For example, think about two common gesture patterns starting with “on the one hand…and on the other hand.” Thoughts, words, and hands flow horizontally as you speak – “On the one hand, I’d like to go, but on the other hand I’m too busy.” How does one typically gesture about past, present and future events? Again, on a horizontal plane, the past is often gestured to the left; the present in the middle; the future to your right. “Yesterday I was at work; today I’m at home; tomorrow I leave on vacation.”

Would you ever gesture vertically with the past above your shoulders, the present at mid-torso and the future below your waist? Not likely. Yet you would write about it vertically. Since humans think and gesture horizontally, if your notes flow that way, they are a more useful blueprint for thinking while speaking.

Try it. Neatly structure columns of ideas horizontally, like a ledger or spreadsheet, across a piece of paper turned sideways. Longer 8.5” by 14” legal pads are excellent for this. Each column heading is a topic in your structure, such as:

1)    Problem               2) Solutions                  3) Recommendation              4)Deadline

Underneath each topic, writing more legibly and larger than usual, construct – with pen and paper – columns of short phrases and trigger words that lead you through each topic. If you lose your place, you know precisely where to look on the blueprint.

The handwriting research included this observation:

“…hand-formed letters, inscribed more deeply in our minds, are building blocks for sturdier mental architectures.”

Hand-formed horizontal notes provide you with a sturdier mental architecture with which to structure and deliver your extemporaneous spoken remarks. On the one hand, you may find it a bit unusual at first, but on the other hand, you will find it really works.

The Music of Your Voice: Walking Down the Steps

by Brian K. Johnson

“May it please the court?” Is it a question?

Or is it a statement? “May it please the court.”

Legal writing guru Brian Garner offered a helpful historical analysis of this introductory utterance in an ABA Journal article last year. He set out to determine whether it is a question or a statement. Here’s our take.

The problem with inflecting your voice upward in your initial statement, as if asking a question, is that it often leads to a series of utterances that are inflected as questions. A rising inflection at the end of a statement is variously labeled “uptick” or “uptalk.” We describe it musically as the “questioning curl” because the pitch of the voice curls or slides upward on the final word of the sentence, as in, “Huh?” Say that aloud once or twice, slowly, exaggerating the musical pitch sliding upwards. “Huuuuh?” Hear how your voice curls up? This is the inflection we use for “Right?” or “True?”

The opposite inflective pattern is when your voice descends in pitch, as it always does at the end of the Pledge of Allegiance when you say:

“…with liberty and justice for all.” (Period.)

Say that phrase aloud and hear your voice descend downwards. We call that inflective pattern “walking down the steps.” As audible punctuation, it is the sound of a sentence coming to an end, with a period. It makes for a conclusive and certain ending.

When you stand to address the court, this is what often happens if your first utterance sounds like a question:

“May it please the court? My name is Michelle Figueroa? I am counsel for the plaintiff? Acme Industries?”

By starting with the questioning inflection, you establish a pattern that continues through your name, the name of your client, and beyond. Sometimes that questioning sound continues into the first substantive sentences, as in, “There are two issues before the court today?”

Your first impression on a judge or a jury is what? It is the opposite of confidence and certainty. You sound as if you are questioning what you are doing, who you are, and whom you represent.

Brian Garner believes that historically, “May it please the court” is not a question, but a statement, almost an incantation. He makes a useful comparison to these statements:

“May the force be with you.”

“May the wind be always at your back.”

Use that inflection to introduce yourself to the court. Walk down the steps and say:

“May it please the court.”


Hat tip to Garner’s historical analysis.



by Marsha HunterMJ Tocci

Two weeks ago we lost an exceptional teacher and tireless mentor for women lawyers, M.J. Tocci. She died in hospice after a years-long battle with cancer. Friends and colleagues have been remembering her inspiring assertiveness, so I’ve updated an article I wrote ten years ago while on assignment for Women in Aviation magazine. For all lawyers, women and men, who must speak up in a noisy world, this is for you from M.J.

 Note: Assertiveness training in aviation is part of a well-developed field called Crew Resource Management. The flight deck structure is a chain of command where it is essential for junior officers to speak openly and assertively about safety issues to their superiors. My aviation credentials include a commercial pilot’s license and a Master’s of Aeronautical Sciences with a specialty in Human Factors.
Several years ago I observed a daylong Crew Resource Management course at a major airline. I was writing about CRM, and had been invited by the head of the Human Factors department to attend the class for new pilot hires.

One portion of the morning session focused on assertive language during flight emergencies, with participants suggesting appropriate responses to different scenarios. The class discussed how to speak to an authoritarian captain, how to convey different levels of urgency, and how to disagree while preserving the chain of command.

While on the subject of interpersonal communication, the instructor paused to interject that the airline did not tolerate racist or homophobic comments in the work place. “Is that clear?” he asked, implying that this ironclad rule needed no elaboration. Then he added, “And I’d steer clear of politics, too.”

The forty men and one woman in the class nodded and shifted in their seats. There was nervous laughter at the thought of politics on the flight deck, but guidance about handling offensive remarks in collegial conversation was not in the curriculum.

At the lunch break we adjourned to the cafeteria. The new hires were eager to make friends, and I was welcomed easily into the group. I sat across from a pilot fresh from cargo operations in Asia. We discussed the aircraft he’d flown, the weather challenges in the southern hemisphere, and in general made polite pilot small talk.

Then he said, “I’ll really miss Asia. Prostitution is more accepted everywhere, and great sex was cheap.”


My interesting day had been rudely interrupted by a shocking, juvenile, stupid comment. In spite of my expertise in teaching public speaking, I was at a loss, totally speechless, and caught in a non-assertive mode.

My jaw dropped. My eyes got wide, my heart rate increased, and my breath got shallow. I became aware that my hands were shaking. My perception of time slowed dramatically. Sensing some type of threat, my body had dispensed a small adrenaline rush. While I could have punched the guy in the nose with all that energy, I was unprepared to respond verbally, so I didn’t. I felt profoundly silly.

The episode came back to me recently when I was subjected to a racist joke. As a writer, I spend a fair amount of time working alone, so I am not always prepared for the extremes of bad social manners. But the racist joke—again, my response had been woefully inadequate—inspired me to seek out a technique for coping with offensive and inappropriate language. Clearly, I needed advice from an expert.

I turned to my friend M.J. Tocci, who spent sixteen years in a district attorney’s office as a prosecutor, trying tough cases in the San Francisco Bay area. M.J. has seen and heard just about everything. Next to the word “assertive” in the dictionary, there’s a picture of M.J. I was sure she would have sage advice, so I gave her a call.

M.J. was thrilled to talk about it. “This is my favorite subject! Women lawyers cope with this issue all the time, sometimes overt, sometimes subtle.” She herself had recently been told that she had made “a lovely contribution” to a seminar in which she had been the only woman on the faculty.

M.J. laughed her low, cunning laugh as she told me about it. “’Why, thank you,’ I said, ‘but I hope I also contributed substance.’

“The guy was horrified; he hadn’t recognized his implication that I was the fluff, the skirt, the high heels. I said it in a nice way, but seriously enough to let him know I was offended.”

M.J. told me that her way of coping evolved over her career. As a young prosecutor, she wanted to fit in, to show how tough she was. She laughed at rude jokes to be one of the boys. She swore and wisecracked with the best of them.

“But,” she said, “I paid a price for playing along, because ultimately I felt cheap and demeaned for condoning their behavior. When you put up with it you feel complicit, an accomplice.”

M.J. reminded me that she had just turned 50, a liberating age. She sees more clearly than ever the importance of trying to make the world a better place, and the drawbacks of going along to get along.

“At 50 I don’t have to buck up and smile at things that are not OK. I no longer change the subject when I hear something offensive. Instead I do a speedy analysis: what is my relationship here, and what is my goal in responding?

“When I respond, I name the offense. I say, ‘That’s racist,’ or ‘That’s offensive.’ Name it unconditionally. Avoid saying, ‘That offends me,’ which qualifies the offense as being somehow unique to you.

“It’s very important that you don’t worry about what happens next. Don’t feel badly about the pregnant pause that follows a verbal confrontation. Let silence happen. Don’t jump in like women tend to do, filling in the uncomfortable seconds with conciliatory language.”

During that pause when you are feeling uncomfortable, give yourself a silent pep talk: Don’t give in! Hang tough! “Then you can raise your eyebrows and change the subject,” M.J. advised, “or you can let him (or her) apologize.” (By the way, when the shoe is on the other foot and you realize you have offended someone, apologize immediately and gracefully.)

As I knew she would, M.J. had suggestions about exactly what to say after that pregnant pause. Among her ideas:

“That is an inappropriate thing to say.”

“Did I just hear you make a racist remark?”

“How appropriate is that?”

“I don’t think we need to talk about this anymore.”

“Is that something you really feel is appropriate to discuss with a colleague?”

Practice this type of “parachute line” aloud. Have them on the tip of your tongue. Practice by disagreeing with your radio or TV. Talk back to politicians on the radio. Experiment with different attitudes.

You do have a responsibility to find the right tone for the circumstances. M.J. suggested trying a light tone. “It is OK to laugh – but make it clear you are laughing at them. Call an offense for what it is, with humor or lightness if necessary, but call it.”

What if you are dealing with your boss or another superior?

M.J. still suggests hanging tough, but tempering your language with due respect. “When someone is above you in the food chain, don’t be afraid to show that you are articulate, that you can be clear, and are able to set boundaries. Don’t be a straw in the wind, coping with other people’s inappropriate standards. Your job is not to make everyone happy and comfy.”

The next time I’m surprised by an offensive conversational remark, I plan to take an assertive breath before I begin. “Did I just hear you describe your patronage of Asian prostitutes? How appropriate is that?” During the pause that follows, I’ll raise my eyebrows and wait for the pregnant pause. And the world will change, if only a little.

Public Speaking at Its Finest: Actor Peter O’Toole’s sublime vocal legacy in less than two octaves

by Marsha Hunter

Peter O'Toole in Lawrence of Arabia, Wikimedia Commons

Peter O’Toole in Lawrence of Arabia, Wikimedia Commons


Actor Peter O’Toole died a few weeks ago at 81, leaving the world a less mellifluous place. His distinctive voice now can be heard only in film and audio archives. It will not ring out again from the stage of any theater, reverberating in listeners’ ears, sending spines tingling and raising hairs on the backs of our necks. Such sounds, uncontaminated by amplification, are the purest form of spoken communication.

That’s why I’m a big fan of great actors who make a beautiful noise. Spoken language is the heart of what makes us human. O’Toole’s grand speeches from Lawrence of Arabia, The Lion in Winter, and My Favourite Year will always ring in my ears, in all their eccentric glory. O’Toole snarled, bellowed, howled, barked, and sang, an extravagant antihero shouting and cooing his way through a tumultuous career, with almost two octaves of rat-a-tat-tatting vocal fireworks.

That voice is what fascinates me, though many who have written about him since his passing are absorbed by his glamorous, reckless life. I grew up watching him in movie theaters, and I know his sexy, enigmatic persona was alluring. But the sound of his exquisite diction is what drew me in and exposed what The Economist’s Prospero referred to as, “the aural architecture of [Shavian] dialogue articulated with the full rhetorical clash…that besides its musical values had a quality of sheer ecstasy that Mr. O’Toole possessed to a degree greater than any other actor of his time.” He showed us what a beautiful voice can do.

Aural architecture and rhetorical clash. Musical values and ecstasy. How did O’Toole do it?

To say that he was well-spoken is a gross understatement, naturally. British actors are to the manor born in the speech department; throw in Irish blood and you have some of the purest elocution DNA possible. Peter Seamus O’Toole was surely born to speak beautifully—all he needed were teachers to show him how to hone his skills. He claimed in an interview that he carried Shakespeare’s sonnets with him everywhere, and had them all memorizedListen to this short link to the very end, as he fishes for that last couplet. You can hear the actor thinking, using muscle memory to dredge up the words.

Aural architecture is the sound of words as they create a world. To construct his worlds, O’Toole used consonants and pace, elongated vowels and reverberation. Sometimes he lingered on sounds, and took his time. Sometimes he galloped along, words churning out in a waterfall of speech, thought, and action. There’s your rhetorical clash.

Musical values and ecstasy? Rapture is unleashed in the music of a great actor’s voice, and O’Toole was a model of abandon. The tunes he played, the high notes that echoed, the warmth of lower tones, all combined for the feel of each character. O’Toole’s agony and euphoria had certain sounds that are now part of our collective consciousness. Watch only one or two of his films, and you’ll know that voice anywhere. Its distinctive soundprint is instantly recognizable—and overflowing with emotion.

O’Toole was a tenor, with high notes galore. Early last year I watched two of his movies while sitting at my piano to check his range. Becket, from 1964, also stars Richard Burton, whose bass-baritone was a contrast to O’Toole’s higher-pitched Henry II. The musical contrast was fascinating. O’Toole never descended into the low notes of Burton, and Burton never came close to the ringing high C’s of his co-star. In fact, in my several weeks of research on actors’ vocal ranges, nobody matched O’Toole’s high notes, not even the great Laurence Olivier, who had a similar timbre.

The impetus for delving into actors’ vocal ranges was a lecture I’d heard on legal communication which claimed that engineers use a two-note range when they speak, lawyers use four, and actors use two full octaves. I suspected that these surprising “facts” were invented, and decided to investigate. Having read an ill-informed article in 2012 stating that many women have a much wider range than men—several octaves—I have decided now to fight these wild misconceptions with data. The idea that actors, women in general, or any speaker ever encompasses two octaves is absurd. The human voice doesn’t work that way, as the data makes obvious. The data is musical pitch, which can be written down.

It is fairly easy to obtain data about voices with a piano and a decent sound system connected to your TV monitor or computer. With an ear for music, some pianistic ability, and a basic understanding of musical notation, a large, if unscientific sample can be taken. Coincidentally, while I was comparing vocal ranges across famous actors, Beyoncé lip-synched “The Star-Spangled Banner” at the inauguration, and a friend commented on Beyoncé’s “amazing four-octave range.” Our national anthem is a two-octave song. Beyoncé did not add two extra octaves of melodic ornamentation! Exasperated, I continued my research, expanding to singers as well as speakers. Here are my results.

First, let’s define the data I was seeking. I wanted to discover the musical ranges of voices. Musical ranges are defined by intervals on a musical scale. Musical scales in Western music are comprised of seven notes: A, B, C, D, E, F, and G. The eighth note, or octave, begins the scale again. A pitch that is one octave higher than another is the same pitch, but eight notes above it. Likewise, a pitch one octave lower is the same note but deeper in pitch.

Most people can sing songs that range across one octave. Two octaves cover sixteen notes, repeating the standard musical scale at different pitch levels. Most of us have difficulty singing songs that range across sixteen notes. We don’t have the vocal range. This is why it is so hard to sing “The Star-Spangled Banner,” and why we are impressed when a professional singer nails it.

Speaking and singing ranges of humans encompass monotone (one note) on the extreme low end, up to two octaves plus two or three extra notes for trained opera singers. A few freaky voices in operatic history have stretched to three octaves, all of them sopranos. No human has a vocal range of four octaves, but some celebrities have press agents who claim they do. These press agents are a) willfully lying or, b) ignorant, or c) both.

Monotone voices are rare. I’ve taught one or two in all the years I’ve coached lawyers. Here is what musically notated monotone looks like:  Monotone

Monotony is another matter. Speakers with a monotonous delivery suffer from something other than musical limitations. They may speak too softly, fail to emphasize key words, lack confidence, or be unfamiliar with the material they are presenting. Monotonous speech has a limited musical range, usually three or four notes. Here is what a limited musical range of speaking looks like:  Limited Vocal Range

The notion—from that lecture that got me thinking about this—that engineers use only two notes is ridiculous. I’ve spent my life with engineers, pilots, and other geeks and wonks who may be judged by some as sterotypically “dull” speakers, but they all use more than a limited range of two notes. I had coffee last week with a dear friend who spent a career engineering radio communications for flight operations, and I guarantee his range of speech is more than two notes. My estimate of his normal range is around six notes, reaching to an octave with occasional outbursts about politics or college tuition. My engineer friend Bob usually speaks within this range:  Normal Vocal Range

When I’m not hanging out with aviators, I spend my working days talking to lawyers. Like engineers and other non-actors, lawyers speak in a predictable range of about six notes, with flights of exclamatory vocalizing that exceed an octave. I obtained this data from the many video clips I make of lawyers in my daily work.

Now to actors. Stage actors need a wider range because they generally are not speaking into microphones, though in more and more theaters they are now amplified. TV and film actors do not need a wide range because the quiet, close-to-the-mike speaking techniques they use define the modern style of video and film acting. To see and hear TV actors cope with Shakespeare using their more limited vocal range, I heartily recommend 2012’s Much Ado About Nothing directed by Joss Whedon. It is delightful, but acted without the vocal chops of stage performers whose muscular voices must project with audible resonance to the back row of a cavernous theater.

Classically trained stage actors like Peter O’Toole use a wider vocal range than most people, but not all the time. They, too, range over about six notes for most expression, but they have strong high and low notes in reserve. They can drop down low in their range for effect, or sing out top notes for drama. This is true for female actors, of course. Meryl Streep, Janet McTeer, Dames Harriet Walter or Judi Densch—have speaking ranges of an octave and a half. In all my research, I heard not one actor use two octaves. It is beyond the reach of their speaking voices.

Actors singing musical comedy roles fall somewhere below the two-octave range. When any of us take a big breath and launch into a song, we are capable of a larger melodic range than our speaking voices can provide. Still, there are few musical comedy roles that require a range of two octaves. Composers know better than to write for too wide a range. Too wide a range, and they cannot cast the show. Listen here to Hugh Jackman using less that two octaves as Curly in Oklahoma. It is a wonderful performance, but not because of the range of pitches he sings. It is warm, appealing, interesting, true to the composer, original, and well-sung.

At the extreme—opera—singers must produce about two octaves in performance, but no more. To hear an opera singer using two octaves, listen here. Like Jackman’s performance, it has many fine qualities. A four-octave range doesn’t happen to be one of them.

In opera and musicals, data is easily available because composers write it down for us, artists make recordings, and all of it is quantified. Music is data.

Let’s loop back to vocal ecstasy. Peter O’Toole thrilled us with the sound of his big voice, on stage and film. He could reach into high notes that made us feel his joy, fear, anger, sadness. That generous sound of his, or any actor with a beautiful voice, is a tool in his kit to convince us, to persuade. O’Toole carefully nurtured that sound over a lifetime.

I love big beautiful voices. I’m always on the lookout for them amongst lawyers. My own speaking voice is not particularly pretty, though I pride myself in being loud enough to be heard by audiences. Voices like O’Toole’s remind me of my untapped potential.

What about you? Are you using vocal sound to persuade, counsel, or instruct? What voices do you love?


Thanks to Cori Ellison, Dramaturg at Glyndebourne Opera in England, for a lively discussion of vocal ranges in opera.

Peter O’Toole filmography

Obituaries for Peter O’Toole: The New York Times    

The Guardian

The King of Gesture Explains the Universe

by Marsha Hunter

I love this guy! Dr. Lawrence Krauss is a physicist who teaches at Arizona State University, and a monthly commentator on the local TV news program Horizon. He is one of my favorite gesturers, drawing pictures in the air as he illustrates the latest developments in physics. Like many IP lawyers who are also engineers, he “shows” what he talks about in a kind of gestural narrative. Notice how wide his “gestural zone” is—often spilling off the screen.

After watching this, we can clearly see that gesture is nature, not merely nurture. His exuberant gesture shows us how excited he is about his topic. Observe how explicitly he describes his ideas using his hands.

Besides watching a gifted, amazing gesturer, you’ll learn about dark matter, the Kepler Telescope, and neutrinos. Watch some of this with the sound turned off to observe the detail he shows when he talks with his hands.

Watch Professor Lawrence Krauss, the King of Gesture here. He starts at 1:28 on this video.

How does your own gesture compare? Do you know people who use their hands so effectively?


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

What Words Would You Emphasize in The Gettysburg Address?

by Marsha Hunter

Read this speech out loud. Which words call out for emphasis? Read it again. How do you feel while reading it? Read it again.

          Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.

But, in a larger sense, we can not dedicate—we can not consecrate—we can not hallow—this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us—that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.

Courtesy Wikimedia Commons

Courtesy Wikimedia Commons


We recommend Lincoln at Gettysburg: The Words That Remade America, by Gary Wills


The Landscape of Argument: Gestural-Rhetorical Templates for Public Speaking

Cicero denouncing Cataline
John Leech, A Comic History of Rome via Wikimedia Commons

Cicero in John Leech’s A Comic History of Rome,     Wikimedia Commons

When people ask me what I do for a living, my stock reply is, “I teach lawyers how to talk.” They laugh, and then we may engage in a more substantial conversation about attorneys, public speaking, persuasion, or language. Never has anyone observed, “Ah! Rhetoric!” The study of public speaking has roots in ancient Greece, and even though I spend all my work days listening to style, structure, words, and delivery, I can count on one hand the number of times discussion has turned to logos, ethos, or pathos. Rhetoric, like its cousin elocution, has fallen away as a central unifying idea of public discourse.

Teaching at Glasgow’s University of Strathclyde LLM program brought it to my attention in a new way. Rhetoric was the topic of the Dean’s lecture during the first session of the course. And as always, my Scottish and English faculty colleagues had an enviable and self-assured grasp of language. Do they absorb the principles of rhetoric early on? It left me determined to learn more about an idea that had almost completely passed me by.

Unsurprisingly—and disappointingly—most books on rhetoric are really pricey textbooks. I take pride in being an author who is devoted to writing and selling reasonably-priced books, and thus constitutionally unable to fork over $187 for a single volume. Paying that much, I fear, would open the floodgates of high-end book-buying, leaving me with massive credit card bills and overflowing shelves.

Thus did I purchase a reasonably-priced The Essential Guide to Rhetoric, by William M. Keith and Christian O. Lundberg, an 83-page introduction to the topic. And read it I most certainly did, in a paper-bound volume.

“Aha!” I said to myself frequently as I read through this useful little volume, yellow highlighter in hand. Some techniques of Plato, Aristotle, and Cicero are alive and well in the modern world, partly due to human instinct and partly, no doubt, from study. Others are ripe for revival.


For example, I now understand why all top-ten tips for public speaking include the platitude, “Know your audience.” (Seriously, this advice popped up on my Twitter feed as I sat down to write today.) It has been handed down through the ages as a crucial step in planning to deliver the spoken word. Whether an ancient Greek or Roman came up with this idea or not, I’ve always taken it a self-evident given, and neither Brian Johnson or I teach it as a key point. Who wouldn’t consider the audience as part of the planning? It seems too obvious to state. Still, in an era when the media is actually discussing whether it is OK to dress up for Halloween in black face, I shouldn’t assume people anticipate any such thing as audience point of view. By all means, consider your audience.

In Part II, “Rhetoric in Action,” the discussion of logos, syllogisms, and premises is especially pertinent to advocacy. In trial skills programs, whether at NITA or elsewhere, we on the faculty push students to begin courtroom speeches with a “grabber,” such as the famous “If it doesn’t fit, you must acquit.” Most often, students fall back on simplistic, bumper-sticker-type phrases such as, “Desperate men do desperate things,” a statement true for many trials, but dull and bland. More careful thought could lead to well-crafted themes that state a situation more precisely, such as “She loved the man she knew, but she didn’t know the man she loved.”

By far the most interesting ideas about rhetoric focus on topoi. Professors Keith and Lundberg refer to topoi as “the general forms that arguments take, regardless of their actual content” (page 40). Topos means place in Greek, and topoi  is the plural places. Quoting the authors again from the same page:

“The Greeks thought that arguments were, in a sense, spread out in space, and if a speaker knew his way around that space, he would be able to find the ones he needed. The better the speaker knew the landscape of argument, the more easily he could create persuasive appeals. The study of rhetoric could make a speaker just as familiar with the inventory of arguments in politics, policy, and law as with more ordinary subjects.”

Bingo! Yesssss! Eureka!

This affirms what we have been teaching about gesture, and it is exciting. We encourage speakers to use their hands to lay out arguments in front of them, and then “refer” back to those ideas, in a specific location, with gesture. We ask speakers to become their own visual aid by using gestural templates to structure arguments. Many people do this instinctively, but it is also possible to plan for it without looking corny or over-rehearsed.

The Greeks are famous for devising mnemonic devices using visualization, and topoi are a logical extension of the visualization that can be enhanced with gesture. In one mnemonic (sometimes still used by waiters to recall an evening’s specials), the speaker envisions her own living room, and places things (appetizer, soup, fish of the day, etc.) on tables, chairs, sofas, or window sills, to be retrieved later when she recites the list to customers. She looks into her mind’s eye and “sees” the appetizer sitting on an end table, a bowl of soup nestled in an easy chair, the fish flopping on a sofa. It is a short hop from visualizing to gesturing, which is a literal reaching out for the next item on the list. This type of refined gesture is almost a pantomime. Since gestures are mostly peripheral, listeners rarely see them, making this kinesthetic mnemonic nearly invisible.

The speaker in the illustration below indicates that the negotiable terms are on his right, and the non-negotiable terms are on his left. He now has two locations, or topoi, where these contrasting terms reside. He may reach toward his right to speak about the negotiable terms, and his left for the ones that are not. Each location now also contains more detail, such as lists of terms that are acceptable or not.

Place ideas in space, then use physical locations to talk about each topic. These topoi (topographical idea locations) are kinesthetic mnemonics, helping you keep track of your structure. Copyright Crown King Media, L.L.C.

Place ideas in space, then use physical locations to talk about each topic. These topoi (topographical idea locations) are kinesthetic mnemonics, helping you recall your structure.

Try this now by saying and showing with your hands, “Some terms are negotiable…..others are not.” If it feels weird or unnatural, work on it until you get comfortable. You have shown such relationships, using your hands, thousands of times—you just never noticed. Start to use this gestural/rhetorical template in professional conversations. Notice when others use it.


Plato would be interested to learn that modern researchers refer to these hand movements as “co-speech gestures.” They work for all spoken structure, whether discussing logos, ethos, or hashtags. Best of all, co-speech gestures assist speakers as they search for just the right word or turn of phrase. Rhetoric exists in a landscape that is yours for the taking. Extend your hand to explore it.

Plato and Aristotle, by Raphael, Wikimedia Commons; gesture illustration by Barbara Richied, copyright 2013 Crown King Media, L.L.C. 

How to Speak as Well as David Boies

by Marsha Hunter

David Boies spoke outside of the United States Supreme Court after the decisions on DOMA and California’s Proposition 8. He is, of course, one of America’s most prominent trial lawyers, and a remarkably well-spoken one. It was fascinating to hear him shape his thoughts about the decision, without notes, and with only two very small fluency errors. It was so interesting, in fact, that I transcribed it and crunched some numbers for you.

Boies spoke for 5 minutes and 25 seconds, using 688 words clustered into 144 distinct phrases. The average number of words he used per phrase was 4.7. He spoke at a rate of 123.6 words per minute.

The interesting statistic here is that he parsed his language into 144 phrases! Frankly, I was surprised. I’m a big fan of speaking in phrases, but I did not think that 688 words would break down so beautifully into so many phrases—I would have guessed there were fewer. But listen as he makes it easy for his listeners to hear and process every single word. There is barely a wasted syllable, except when he repeats one two-word phrase and re-pronounces one word. (This is an average number of fluency errors for articulate speakers.)

His phrases are all about four to five words long. Many are two or three, and a few are just one. His longest phrase is sixteen words, and include words that trip easily off his tongue:

“that when that case finally does come to the United States Supreme Court on the merits”

His delivery is completely clear, with crisp consonants, elongated vowels, and sentences that end with emphatic words. He includes the themes from the case, provides an overview of the strategy he and Ted Olson used, and manages to weave both the Constitution and the Declaration of Independence into his message.

Boies gives a perfect demonstration of how to be well-spoken. If you want to be articulate, speak in phrases.

Listen to his comments while following the transcript below.



1 This is a great day for America.

2 Ten years ago

3 today

4 the United States Supreme Court

5 in Lawrence against Texas

6 took the first important step

7 to guarantee that all Americans

8 regardless of sexual orientation

9 are equal citizens under the law.

10 Today

11 the United States Supreme Court

12 in two

13 important decisions

14 brings us

15 that much closer

16 to true equality.

17 In the decision

18 striking as unconstitutional

19 in the so-called DOMA or Defense of Marriage case

20 the United States Supreme Court

21 held that there was no purpose

22 for depriving

23 gay and lesbian couples

24 of the right to marry the person they love.

25 There was no legitimate

26 justification

27 for that.

28 As Justice Scalia noted,

29 that holding, that principle,

30 guarantees

31 the right of every individual

32 in every state

33 to marriage equality.

34 In the California case

35 the Supreme Court held

36 that the proponents of Proposition 8

37 did not have standing.

38 What that means

39 is that in that case

40 the Supreme Court could not reach the merits.

41 But everything that the Supreme Court said

42 in the Defense of Marriage opinion

43 where they did reach the merits

44 demonstrates

45 that when that case finally does come to the United States Supreme Court on the merits

46 marriage equality

47 will be the law throughout this land.

48 Our plaintiffs now

49 get to go back

50 to California

51 and together with every other citizen of California,

52 marry the person they love.

53 And the next step

54 is to translate

55 the promise

56 that was in Lawrence

57 and that was reaformed—reaffirmed today

58 in the DOMA case

59 that every citizen

60 in every state

61 has the right to marry the person that they love.

62 The Supreme Court’s decision on standing

63 is important for another reason.

64 When we started out in this case

65 we said we were going to prove three things.

66 We were going to prove that marriage was a fundamental right,

67 and the other side accepted that.

68 We said second we were going to prove

69 that depriving

70 gay and lesbian citizens of the right to marry the person they love

71 seriously harmed them

72 and seriously harmed the children that they were raising.

73 And

74 even the opponents

75 agreed with that.

76 And third

77 we said

78 we were going to prove

79 that allowing

80 everyone to marry the person that they loved,

81 regardless of sexual orientation

82 did not, could not

83 harm anyone.

84 And not only

85 did the proponents on cross-examination

86 have to accept that

87 but today the United States Supreme Court

88 said as much

89 because they said the proponents

90 have no concrete injury.

91 They cannot point

92 to anything that harms them

93 because

94 these two loving couples

95 and couples like them throughout California

96 are now going to be

97 able to get married.

98 And so this is a

99 this is a wonderful day

100 for our plaintiffs,

101 it’s a wonderful day

102 for

103 everyone around this country and in California in particular

104 who wants to be able to marry

105 the person they love.

106 But its a wonderful day for America

107 because we have now taken this country

108 another important step

109 towards guaranteeing

110 the promise that is in our Constitution

111 in our Declaration of Independence

112 that all people are created equal

113 and all people have the inalienable right

114 to life, liberty, and the pursuit of happiness.

115 So this is a great day,

116 we thank the Supreme Court,

117 we thank all of you

118 and perhaps most important

119 we thank all of the people

120 who devoted so much

121 to this battle

122 over so many decades.

123 People who did it at a time

124 when it was not as easy as it was

125 for Ted Olson and myself

126 to go into court.

127 The only thing I regret today

128 is that my friend and colleague Ted Olson can’t be here.

129 He has been a leader in this battle

130 for the last four years.

131 He is unfortunately today

132 in another court

133 in another part of the country

134 arguing another case.

135 But his spirit is here

136 and he will be with me tonight

137 and we will celebrate

138 because this is a victory

139 not just for us,

140 not just for the Plaintiffs,

141 not even just for the people who worked for this

142 so many decades,

143 but for all Americans.

144 Thank you.

Joking Around in Serious Presentations

A Mischief Warning

by Marsha Hunter

This week the defense team’s opening statement in the George Zimmerman trial in Florida included a knock knock joke. It wasn’t particularly funny, and nobody laughed. Reports about the joke labeled it “in poor taste,” and “Kindergarten humor.” Alan Dershowitz classified defense lawyer Don West as unworthy of being admitted to a law school trial skills class for pulling such a stunt. Since we are often asked whether beginning with a joke is a good idea, this is an opportunity for a serious discussion about using humor in public speaking.

Beginning a speech or other presentation with a joke is an idea that has been around for ages, but now seems quaintly out of date. Jokes often poke uncomfortable fun at someone, or offend entire groups of people. You cannot know the backgrounds and histories of your listeners, and making broad assumptions about their reactions is impossible. Beyond these sensitivity issues, telling a joke requires comedic skill, timing, and adherence to the artistic rules of comedy. It requires that you be keenly aware of the setting you are in, and the tone and nuance required by the joke.

Our view is that planned jokes are simply too risky in court, and in most other presentations that lawyers are called upon to make. There are too many downsides to making your inital comments into a burlesque.

First, unless you have spent a previous career as a stand-up comic, your delivery will be amateurish. Even if you like to tell jokes, and you think you have the perfect joke on hand, your timing is likely to be clumsy. You will deliver it too quickly, or mangle the punchline, or get the rhythm wrong. Comedy demands just as much practice and attention to detail as the law. It isn’t as easy to toss off a brilliant quip as the Comedy Channel makes it look. Your audience watches its favorite comedians on demand, and they measure you against their personal tastes and preferences. Don’t compete with Tina Fey or Conan O’Brien.

Attorney West has apologized for telling his knock knock joke, but he blamed its failure on his delivery. It cannot have been pleasant to feel the joke land with a thud, but instead of taking responsibility for making a lousy choice, he blamed his poor comic timing, implying that if only he had nailed the punchline, it would have been fine. The truth is, it was a bad idea in the first place.

If you are tempted to inject a gag, realize that your comic material is probably inappropriate for at least some of your listeners. While it is possible that the jury in Zimmerman’s trial might have been receptive to an amusing comment about how they came to be sitting there, they were also acutely aware that Trayvon Martin’s friends and relatives were in the courtroom, listening to a tasteless joke about the now-famous killer of their friend, relative, or son. It makes people uncomfortable to hear a joke that offends others in the room. The all-female jury may well be more empathetic than a mixed or all-male jury might be, making this bull-in-a-china-shop offense especially unfathomable. Why, during opening statement, would you blow your best chance for the people on the panel to get to know you as a trustworthy, decent person? Do you really want the jury’s first impression to be that you are an insensitive lout? This isn’t just a matter of joking around, it is a matter of character and judgment.

Another reason not to stray into comedian’s territory is simple: you may not be a funny person. If you aren’t inherently funny, you probably won’t be able to tell a joke that makes people laugh spontaneously, and have the desired effect of lightening the mood. After the knock knock debacle, I might add that you shouldn’t first apologize at length about the joke you are about to tell. A rambling prelude makes your listeners brace themselves and pray you get it over with quickly. Such pre-joke apologies are a sure sign that you are not funny. Funny people just tell the joke.

If you do miscalculate and tell a joke that tanks, don’t chastize your listeners when they fail to laugh, as defense attorney West did when he complained, “That’s it?” He told them it might not go over well, it didn’t, and then he whined about it.

Let’s consider further this question of whether you yourself are funny. You may have a sense of humor or a love of laughter, but that doesn’t mean you possess a clown’s verbal instinct and timing. You may enjoy irony, puns, or limericks. You might be a good audience for jests from others. You may be good-natured, but not necessarily the source of clever, witty comments. Having a sense of humor doesn’t mean you are funny. Consider yourself off the hook, then—you will never be obligated to tell jokes in any public setting!

If you are funny, you know it. You have spent your life making people laugh and are conscious of this part of your character. You may have a talent for telling jokes that hit the bull’s eye every time. Your instinct for shaggy dog stories inspires you to practice until the wording and timing are just right. Even if you are funny, beware of telling jokes on opening statement (watch the knock knock video here).

If you aren’t funny, but mistakenly think you are, that’s a problem. (See blaming the delivery, above.) If you can recall telling jokes that didn’t pan out, or have a feeling that your humor falls on deaf ears, ask someone you trust about it. Find a humor mentor. However, if you are a white guy defending a racially-charged murder case in which an unarmed African-American teenager was killed by your client, do not tell jokes during the trial. There just isn’t anything about this that is a laughing matter inside the courtroom.

But back to those of you who are genuinely funny. You may not be a joke-telling stand-up comic, but instead have a talent for making spontaneous integrated humor. Justice Scalia, for example, can riff on a comment and charm a room while cracking people up. He may not be good at knock knock jokes, but he is famous for provoking laughter in the Supreme Court. I’ve been present when his repartee lightens an argument, and it comes across as real, made-in-the-moment humor. It is the genuine article, not some joke he looked up on the Internet that might come in handy when discussing Miranda warnings.

Speaking of warnings, here’s mine. Let’s call it the Mischief Warning. If you are tempted to use a joke as an ice-breaker, don’t. If you and your trial team find yourselves brain-storming for the perfect witticism, stop as soon as you realize what you are doing. If anyone advises you to tell a joke during opening statement, reject the suggestion. You are the one who will have egg on your face if it goes wrong. I say this because the trial team for Zimmerman clearly vetted the knock-knock joke, since West rambled on about how the jury should take it in the right spirit before he launched himself off the cliff of good taste. Who urged him on?

If you want to lighten the mood in a courtroom or a board room, try a pleasant, socially appropriate smile. Always be professional, credible, and believable. If something amusing occurs to you, be very, very careful about commenting on it. If the gods of comedy inspire you with an appropriate jest, use a gentle touch, and don’t wait for the laughter because it may never materialize. Move on gracefully and stay on your topic.

But do not tell a joke. Heed the Mischief Warning.