Courtroom

Feb

09

Practice is for Professionals, Especially Lawyers

Audiences / Body Language / CLE Course / Mock Trials / Practice / Preparation / Professional / Public Speaking  Posted by / 0 comments

You may have heard a while back that Eddie Murphy and Brett Ratner had to withdraw as co-hosts for this month’s Academy Awards ceremony. The abrasive Mr. Ratner made an anti-gay comment regarding the amount of rehearsing that might be required: “Rehearsal? What’s that? Rehearsal’s for fags.” Uproar, apologies, and resignations followed.

It occurred to me that there is a kernel of “truth” in what Ratner said. Or more accurately, a misplaced belief, a “truth” that many lawyers may hold as self-evident: that rehearsal and practice is for lily-livered, milksop, fraidy-cats.

I say this because last week, I heard yet again, this self-evaluation from an attorney at a CLE seminar: “I’m much better when I don’t prepare.”

Says who?

Read More»
Feb

04

Look at Them

Audiences / Body / Body Language / Courtroom / Language / Moot Sessions  Posted by / 0 comments

Every group of listeners—whether a big audience or a small jury—is a multi-eyed monster that speakers must confront, eyeball to eyeball. The only way to focus your brain is to focus your eyes on your listeners, and that can be difficult to do. That’s because eye contact triggers adrenaline. That famous fight or flight instinct kicks in when you look out at a sea of deadpan expressions gazing back at you. Since there are a lot of them, and only one of you, the predator (them)-prey (you) response is triggered. In conversation you might say to a deadpan listener, “Why are you looking at me that way?!” But in public speaking, you can’t ask—you can only wonder if everyone is getting your message, often in spite of their off-putting faces. That’s simply how people look when they are listening. They don’t reveal enough cues to make you comfortable.

At a recent trial advocacy program we told a young lawyer, “Since you’ve now done a number of these training programs, your task this year is to look at the jury more often. Include them. Connect with them. Make eye contact with them, not just on openings and closings, but direct and cross, too.” How much, she asked? That’s the art. But we argue that the two extremes are undesirable: Don’t look at them all the time; that would be weird. And don’t never look their way. That’s even stranger, not to mention rude. Jurors are the most important people in the room, after all.

The young attorney then rather sheepishly confessed, “I have to admit that although I’ve done a number of these mock trial programs, I have never looked at the jury.”

“Never?” Brian Johnson asked, as politely as he could.

She blushed. “No, it’s too scary and intimidating.”

Watching many different mock trials over the next three days, we became aware that young lawyer wasn’t alone. Almost no one at the program ever looked at the jury. Even during openings and closings, everyone talked as much to the carpet and the ceiling as the jurors.

It happens in real trials, too, more than we all wish. We visited a lengthy jury trial in federal district court for an entire afternoon of testimony and not one lawyer or witness ever looked at the jury, which had already been there for a month, even one time! Not once, can you imagine? What would a client say about such absurd behavior? Nobody can make a case for ignoring the jury.

So, how much eye contact is the right amount? It is, of course, impossible to quantify, since it is part social skill and part calculated technique. But perhaps the hardest task a jury or audience faces is to pay close attention to people who pay no attention to them.

Consider a natural conversation. How much eye contact do you make with your friends while you are hanging out? Most of us make short but genuine eye contact, with each person, briefly and periodically, over the course of any given conversation. Occasionally, we gaze attentively. Sometimes, we stare into the middle distance, head cocked perhaps, intently absorbing the message. Our eye contact sends an important message to our friends. It says we are paying attention, listening.

There is a middle ground between absolutely no eye contact and intense staring at audiences.

Two years ago, at the same in-house mock trial program, we worked with an unusually gifted young attorney, and suggested the same thing to him, “Look at them. Make eye contact and connect with your jury.”

Circulating through the many different mock trials, we happened to be in the room while this attorney conducted a direct examination. As he did so, he included the jury. He looked them periodically – not all the time – and made them part of the experience. The result? Every juror was taking notes. Each person was completely engaged in that direct exam as if they were the most diligent students in an important class.

Look at your listeners. Try saying a complete sentence to each one, then move to another person for the next.* Tend them as you would a garden, with care and attention. If you are speaking in public, remember, it’s about them, not you!
* Thanks to a NITA LinkedIn exchange about closing arguments for the idea of saying a complete sentence to one person before breaking eye contact. It is a good way to start forcing yourself to look them in the eye.

Jun

04

The Verbal Litter of Sentence Fragments

Brain / Courtroom / Language / Uncategorized / Voice  Posted by / 0 comments

When we talk, why don’t we finish our sentences? Linguists must know the answer to this question, but I am at a loss. All I’m sure of is this: lawyers find it difficult, and often impossible, to finish sentences. They have some kind of built-in resistance to committing to a period. Commas, elipses, and random question marks—yes. Periods, no.

Here’s what I mean. A lawyer stands up to make an opening statement, or a motion to a judge, or a presentation about a case to colleagues. She states her topic or theme, often (but far from always) in a single sentence. And then, she’s off to The Land of the Never-Ending Sentence. There isn’t a period to be heard for minutes on end:

“Mrs. X has been afraid for her life since the night her husband stabbed her with a kitchen knife.” (This is the complete sentence.) “Mr. X had threatened her on numerous occasions, and the police had been uh called to their residence more than once and in 2009 alone officers were called by uh by either a neighbor or the caretaker of the condos or even by Mr. X himself uh on one occasion, and so she has been scared and worried, especially for the um effect of the potential violence on her two young daughters, who she sent away to live with her um sister………” And so on, and on, and on.

The story eventually emerges from a thicket of verbiage. Participles dangle, prepositional phrases attach themselves, as if by their own accord, to the beginnings of ideas or the ends of a long-winded thought, serving only as a bridge to the next part of an excruciating, endless sentence. Tangled in the verbal weed patch, like chattering language cicadas, is the cognitive wheel-spinning of habitual rephrasing, as in:

“…who she sent away to live with her sister… who..uh…who she sent to a suburb of Boston…who she sent early um last year to live in a safer place…a less a much less violent situation with her sister, because she was now uh even worried about a different type of uh abuse, verbal, physical her older daughter reported….”

We seem to be constantly editing, hitting the delete button, starting over, revising, rough drafting out loud. We would never leave a written sentence unfinished. Why don’t we speak with the same care?

There is a fix for hanging fragmentitis. If you hear yourself starting sentences over, you can help yourself bring sentences to an end by doing three things.

First, resist tacking “and” onto the ends of your thoughts. Do this with all your intellectual muscle. Speak in phrases, working your way through sentences with precision. This keeps your brain in sync with your mouth. We often listen to lawyers who speak so fast that they cannot monitor their speech in real time. Their brain is way out ahead of their lips. As my Uncle Bobby Wayne once observed of a talking head on TV, “I see he’s mashing his lips together, but I can’t make out a word he’s sayin’—and I’m sure he don’t know, either.” “And,” used in this fashion, litters your speech with meaningless noise.

Second, end sentences with downward inflection, walking down the musical steps of each sentence. End sentences decisively, so listeners hear that the end is approaching. They need those inflective, musical cues to help organize your thoughts in their heads. If you are asking a rhetorical question, end with the upward inflection of curiosity. Walk your voice up the musical steps.

Lastly, pause briefly when your sentence ends. You should hear silence. Silence which follows the downward inflection of an audible period gives listeners a moment to process what you have said. Silence gives you a moment to formulate the first word of the next sentence. Don’t worry that the pause will be too long. 99.9% of the time, these pauses are less than a second, and still sufficient to let listeners know the sentence is over. Resist the urge to rush into the next sentence.

Speaking in deliberate phrases keeps your sentences on track, and prevents you from excessive starts and stops. Trust that you can speak about your topic with articulate intelligence. You needn’t second-guess yourself, and make listeners endure your public editing. Sentence fragments wouldn’t do on paper. Don’t sprinkle them throughout your spoken presentations.

Don’t be a litterbug. Period.

Do you have any ideas about how to speak in complete, articulate sentences? Let me hear from you.

Feb

01

Courtroom Report

Courtroom  Posted by / 1 comments

Superior Court in the Pacific Northwest

News reports in this medium-sized town were abuzz with the latest on a local murder. A hearing was scheduled in the case, so I drove to the courthouse anticipating a lively session centering on the defendant’s competency to stand trial. The session lasted almost a minute, since the prisoner hadn’t been transported to court as scheduled. I left to find a trial where lawyers got to say more than one sentence.

A few courtrooms away, a domestic violence protection session was beginning. In the hallway, people milled about, looking uncomfortable and unsure of themselves. They sat in the corridor, whispered to each other, got up, paced, went out for a smoke, waited for family or friends. Anxiety was in the air. The misery of divorce hovered like storm clouds. A palpable sense of the fear inherent in brutal relationships charged the atmosphere.

By comparison, the inside of the courtroom seemed a safe harbor. An efficient judge moved quickly through the schedule. He spoke with detached objectivity as he dealt with folks representing themselves, listening as each gave a sort of personalized citizen’s complaint about their domestic partners. Topics centered around bad behavior—how he beats the dog or how she drives without a license. There were four accusations of harassment by text message, including a guy who texted his girlfriend that he had bought a gun.

Over the course of nineteen cases, only four lawyers were present in three matters. Three of the four were women, none of whom spoke loudly enough to be heard where I was sitting in the second row of spectators. Granted, the courtroom was large, but as the hearings progressed I began to wonder seriously whether all judges are required to take lip-reading courses.

The first attorney to appear stood hunched forward and with her arms folded over her chest as she addressed the court. Opposing her was her client’s wife, a loud, assertive woman who had no trouble projecting her voice. The lawyer prevailed, proving that a soft-spoken lawyer is better than none, I guess, but I was hoping for a more dynamic performance—or at least to be able to hear what the case was about.

The two other women lawyers opposed each other. Their body language was deferential, and they seemed unsure of how to proceed, so I can’t be positive they were lawyers. From the few words I caught, one represented a registered sex offender, whose tee shirt showcased his tattoos—he looked like a sex offender, anyway, so my brain filled in the information I couldn’t hear.

The teacher in me was dying to leap up and fix these timid performances: “Talk with your outside voices! Unfold your arms to open your lungs, take a big breath, and think about whether you are loud enough. Can everybody in the room can hear you? Show the amateur advocates in the room how to stand proudly, talk like you mean it, and get the job done.”

Lawyer #4 had real presence and a resonant baritone voice. He was just about the only person in the whole session who took over the room and advocated. Unfortunately, this gifted lawyer missed an opportunity to be first-rate. Instead of looking at the judge, he talked to his papers, which he had carefully laid out on counsel table. As he made his case, he stared down at them, continually shuffling and rearranging them. He treated them as if  they held the secret to winning, if only he could get them in the right order. He made virtually no eye contact with the judge. It was a perfect example of how distracting all that paper can be.

It takes a leap of faith to handle notes properly. You have to believe you are prepared. This lawyer was prepared, and he didn’t need anything but a short list of bullet points. I know he was prepared, because for over an hour before his appearance, he sat a few feet from me, poring over his file, studying it and making more and more notes. He was prepared, but he didn’t trust that he was. For a five-minute hearing all he needed was one piece of paper with a limited number of bullet points. What was he asking for, and what facts supported that?

The loudest and most assertive person in the courtroom all day was a guy who wanted to visit his kids. He and his estranged wife were dressed properly for court, and both displayed a respectful, if agitated, demeanor. He spoke fast and nonstop, forcing the judge to interrupt to get a word in edgewise. Even though he was more coherent than most, he engaged in the same variety of public whining we’d listened to all morning: his wife hits him, his mother-in-law hits him, his wife is on probation, and she ran off with the kids to live in a distant town. He unleashed genuine anguish at being trapped in a hopeless loop of attack and revenge.

His wife rebutted with counter-accusations and her own list of grievances. She held her own, but couldn’t match his energy. No sooner had the judge shushed him than he jumped back in. When it was all over, he got exactly what he wanted—to see his kids twice a week.

I wrote in my notes, “This is agony,” and added, “Why is this guy the most effective advocate in the room?” He embodied the emotions I’d felt in the corridor—despair as a ruined family disintegrates, the urge to fight in order to fend off the desolation that would surely follow. He was loud enough, he made eye contact, and he spoke with energy and passion. He rose to the occasion.follow

And that’s what I wanted from the attorneys that day. It would have been so simple: look at the judge and speak up.

See any good performances at trial lately? What techniques made them so?