More Than Just Words: This
Is What It Really Means to Talk Like a Lawyer
By Jim
McElhaney
Jim McElhaney’s 25-year run as Litigation columnist for the ABA
Journal will come to a close this fall. During those years,
McElhaney’s straightforward advice on trial practice became one of the
most popular features in the magazine. To commemorate McElhaney’s
contributions, the Journal is reprinting some of his “greatest
hits” from the past quarter-century. This article originally appeared in
the Journal’s September 1991 issue under the headline
“Professionally Speaking.”
It was humiliating. The young lawyer had put in more than a hundred hours on
the brief. He had a novel interpretation of the appliance safety act that he
was urging his firm to adopt in an important case. One of his memos had caught
the attention of their client’s chief counsel, who suggested a strategy
conference to discuss the young lawyer’s position.
The young lawyer knew he would have to talk about some of his ideas, but he
wasn’t ready for what happened. “All right,” said the general
counsel. “Let’s say that Mr. Baker and I are the court of appeals.
We want to hear your argument. How are you going to convince us that for 60
years our reasoning has been wrong?”
The young lawyer was caught off guard. He floundered around for almost half
an hour, hopping from one point to another, never really making a coherent
statement. He was frankly relieved when the general counsel shifted his
attention back to Mr. Baker and left him out of the discussion for a while. But
by the end of the meeting, he could see that they had decided not to risk using
his argument.
The ride back to the firm’s office was the worst part of it. Mr. Baker
wanted to talk about the dynamics of what had happened.
“Maxwell caught you by surprise, didn’t he?” Baker said.
“I should have told you that’s what he does. I still like your
idea, but we may have to wait for a client who is more willing to take a
chance.”
The young lawyer didn’t say anything.
“But you still got a lot out of that meeting, didn’t you?”
said Baker.
“What do you mean?” said the young lawyer.
“You learned something a lot of lawyers never understand,” said
Baker. “A lawyer is a professional speaker. You talk for a living. Every
time you say something as a lawyer, you are making a professional presentation.
“It doesn’t matter whether you’re in trial, arguing to an
appellate court, talking to a client or giving a CLE lecture. There are some
basic rules for any kind of speech that you should follow if you’re going
to be an effective advocate.”
That young lawyer was Angus. And now, 25 years later, he was making those
same points to Beth Golden. I was there when Angus talked to Beth, and here are
my notes.
BOND WITH YOUR AUDIENCE
Even the simple “May it please the court” is an instinctive
recognition that pleasing your audience is the key to persuading it.
And there are all kinds of bonds that tie speakers to audiences—some
simple and appealing, others base, even ignoble. The psychology of the bond
lies in our most primitive past. Should the cavemen gathered around the
communal fire even listen to this stranger from another clan? Any lawyer who
has been subjected to “home cooking” has felt the power of
“the cave.” It can be overcome, but it takes a lot of work.
Fortunately, there are other bonds that can tie a lawyer to the audience.
One of the strongest bonds a lawyer can draw on is the very reason for everyone
being in court in the first place: to right a wrong.
ACCEPT RESPONSIBILITY
You didn’t design the courtroom, the bench, the jury box or the
lectern. You have only a limited responsibility for who is in the jury box, and
even less for who is on the bench. You have only a little control over when you
start to speak and how much time you have.
The same things are true in all kinds of other settings in which you must
speak as a lawyer.
But whatever the surroundings, whoever the audience, whatever your goal and
however long you have, you are the one responsible for effective communication.
It is your job to make yourself understood—not your audience’s job
to try to understand you.
Accepting responsibility for communication means a number of
things—all of them important:
- Focus on your audience. Watch their faces for signs of understanding
or confusion. Respond to the signals they send you. Even on very formal
occasions, your job is to get ideas across, not to perform an idle litany.
- Don’t complain about the adversities you face, such as the
surrounding noise, the lateness of the hour, the fact that you were deprived of
some of your time to speak, or that you only had a short time to prepare.
It’s up to you to overcome these obstacles, not to blame them.
- Respect your audience. Treat them as equals. Let them understand
that getting your ideas across to them is the most important task you have.
CREATE A PERCEPTION OF CREDIBILITY
One of the reasons lawyers try so hard to sound like lawyers is that we
suppose it gives us the trappings of credibility. If we know the magic words,
we must know what we’re talking about.
But the problem is that the rest of the world didn’t learn our new
vocabulary with us, so sounding like a lawyer is usually a self-defeating
effort. You should choose other ways to look like you know what you’re
talking about.
One of the best ways is to make sure that what you say is true. Talk only
about what you know. Whenever you try to fake it, little verbal and nonverbal
clues will give you away.
Show that you have prepared for your presentation. Sharing a few bits of interesting
information or using a pertinent quotation not only grabs your audience’s
attention but also says you have done your homework.
Use audible and visible organization. It validates what you’re saying
by showing that you are not simply winging it. If you announce at the beginning
of your presentation that you have three main points and then call them out as
you come to them, everyone will know that you have thought through what
you’re saying.
Of course, there are lots of ways to shoot yourself in the foot (or some
more painful place). You can show that you don’t know the facts or
don’t understand the law. Even showing dislike for the topic can be
disastrous.
HAVE SOMETHING TO SAY
There was a psychology course that I always wanted to take when I was a college
undergraduate, but somehow I never got around to it. Early every fall, students
in the class would accost people walking through the student union and ask them
to participate in an experiment. They would ask you to study the contents of a
cigar box for 15 or 20 seconds. The box would have a number of ordinary objects
scattered around the bottom and glued in place.
After the time was up and the box was closed, you would be asked to recite
what you had seen in the box. It was fascinating how easy it was to forget
objects you had just seen—even those you had consciously noted and
decided you were going to remember.
But if you linked the objects together in a story, a theme or even a
fanciful chain of absurd cause and effect, then your memory was vastly improved.
The point is simple: Never make a random cigar box presentation. Even
organization is not enough. You need a point of view, a story with an object, a
theme. You need to have something to say.
SHOW, DON’T TELL
If a point is worth making, it is worth illustrating.
Good examples—apt analogies—are more precious than rubies. They
have the power to persuade because they make the audience think your point
through for themselves. So when they reach their conclusion, it is their
idea—not yours.
But just as an apt analogy is a powerful argument, so is one that turns
around on you. That means you must be careful about picking your analogies.
Test them ahead of time.
KEEP IT SIMPLE
The art of simplicity is not only knowing how everything fits together, but
also knowing what can safely be discarded. And this is where lawyers have
trouble.
Probably our most rigorous training as lawyers is in spotting exceptions to
general propositions. So as soon as we make a simple declarative sentence, we
start thinking of the situations in which it does not apply. Inevitably, we
start talking about those exceptions. Or even worse, we start talking about why
we are not talking about the exceptions.
Stop it.
Forget the exceptions unless they are directly relevant to what you are doing.
Your function is not to cover everything; it is to make a focused presentation.
MAKE A MEMORY
Usually your goal is not to impress your audience with what a fine speaker
you are, but rather to persuade.
And that means the memories you create should be vivid word
pictures—sometimes even uncomfortably vivid word pictures—that will
argue your case for you.
In classical times, it was said that when Athenian statesman Demosthenes
spoke, people would say, “What a wonderful speaker.” But when Roman
leader Cato the Elder spoke, the people would rise up and shout, “On to
Carthage!”
STOP
When you are done, stop. Afterthoughts, recapitulations, repetitive
exhortations and the dismal trailing off by the speaker who is not certain he
has finished cost more than whatever they could possibly add to a presentation.
It’s much better to leave your audience thinking they want more than
knowing they have heard too much.
Jim McElhaney is the Baker and Hostetler Distinguished
Scholar in Trial Practice at Case Western Reserve University School of Law in
Cleveland and the Joseph C. Hutcheson Distinguished Lecturer in Trial Advocacy
at South Texas College of Law in Houston.
Reprinted with permission from the January 2012 issue of
ABA Journal.
Copyright 2012, ABA Journal. All rights reserved. License # 25126ABA.