Written by Roy Black
“If ever there was a country where eloquence was a power, it is the United States.”
8 Ralph Waldo Emerson, The Works of Ralph Waldo Emerson 128 (1883).
Nowhere is this quote more true than in an American courtroom. As I prepared for my first law class this month, I pondered on how trial lawyers should be trained. I designed a theoretical course which combined a substantive evidence class with trial advocacy. One learns the substantive law of evidence in the morning then practices the lesson in simulated trials all afternoon – not that any traditional law school would actually implement this. At first I included the art of final argument as a component, but soon realized this downgraded it. Final argument demands its own stand-alone course.
What would a course like this look like? I put the following ideas together. This post is the first in a planned series on studying speaking and speakers. Since it will never come to fruition, it is something you can do on your own. It follows what I have done to master the skill. Remember, this is a skill that can be acquired by anyone. No specific talent is involved. We learn how to do this.
I believe that law students (and young lawyers) should have a course solely on the final argument. It is a highly difficult skill to master, yet trial lawyers are not trained in it. I wonder just how they pick it up.
How difficult is it to learn? It requires the highest form of accomplishment. Today we push young lawyers out on the courtroom floor and tell them to start talking. Is this the best we can do? Pathetic. Have we lost our minds? This is another example on how little training for trial practice there is in law school. And it is no answer to wait for law firms to train young lawyers. Practicing lawyers are not skilled teachers and are engaged in the business of the law, not becoming a post-graduate law school. Teaching should be done by professionals who know how to teach, with well designed courses and study materials.
The final argument is a highly specialized speech. Different than political speeches, corporate presentations or platform speeches. It has elements of each but it is its own animal.
A trial lawyer’s career will be determined largely by how well he speaks, by how well he writes, and by the quality of his ideas… in that order. Speaking comes first but is taught least. The jury argument is our most powerful form of communication. When we stand up in front of a jury, we have a unique opportunity to grab their undivided attention and put our words straight into their minds. We control the message, tone, pace, emphasis and order of the information. No other means of communication can do that so directly. It’s an awesome power that too few trial lawyers use well.
Most arguments fail because they are badly conceived, structured, written, delivered or supported. And the speaker does not respect the time and attention of the jury. Human attention is our most important resource, yet we squander it. Our audience leads busy, stressful, and fragmented lives. Giving us their undivided attention is rarely their top priority. Their minds will wander into things of importance to them, like their email, grocery list and children. The best trial lawyers grab their attention and tells them: LISTEN TO THIS,…… THINK ABOUT THIS,……. REMEMBER THIS.
How do we expect lawyers to learn how to give a speech? Just do it? Do you think a little training would help? No. It needs a lot of training. Is there anywhere in the legal world to get that training. No. Not a single place. The law schools do no or little in teaching the social sciences, and astonishingly we have no courses in communication. Every college does, but not us.
The first part of my course starts with the study of the masters. Generally, I will use contemporary speakers rather than classical ones. They are more suited for our task. Also they have one additional benefit — video. The class will watch the videos on their own time. YouTube has plenty of video from great speakers like Steve Jobs, Jim Rohn, Bill Clinton, Ronald Reagan and Barack Obama. Speakers who know how to capture an audience.
In class we will critique their speeches. Deconstruct, dissect and pull them apart to see why they work. Then they will be required to breakdown the speech into its constituent parts using a transcript. How do you learn how to draft a persuasive opening or closing argument? There are some books on it, but trust me, you can’t learn it by reading some books. You can only learn by doing it.
The second part will be to study their speaking performance. Watch them perform and learn from it. Study the speech patterns and changes in tone. Study the pauses and body movements. Study the way they look around the room searching out eye contact. Now I want the platform performers to speak to the class.
The third and most important part of the course will be the student performances. Once the students learn the basics, then we move to intense practical sessions. Each student will draft a final argument and perform it. They will perform it as many times as necessary until I am satisfied. I will make them, no, force them, to perform an excellent product. No matter how long it takes.
Their peers who will sit in the jury box will comment on the performances. Their final product will be video taped and given to each student to critique their own performance. They will put in writing how close the final product was to their plan and how effective it was. To speak to their strengths and weaknesses. Then they will meet with me to review the tape together. They must analyze their and their opponents’ arguments. I would do this one on one so the discussion will be more comfortable and candid.
Performing a final argument is like a one man show on Broadway. You are the center of attraction. You have to hold their interest. You are center stage. All attention on you. Can you hold it? Do you stumble around? Do you just repeat the evidence? (This is why I never use the word summation.) Do you give a disjointed lecture? Or do you weave the facts into a story which captivates the audience? What holds your interest on the stage, TV or film? Once you get that idea, you know what you have to do.
I firmly believe this training can only occur in an organized classroom experience. It will not happen in a clinical program. That is just on-the-job training. It is better than nothing but not much more. Watching trial lawyers in action also helps some but not much. The one absolute necessity is student involvement in the exercises.
Here is a paragraph from a past post which I still believe today:
“Do you want to be a good speaker? Do you want to give memorable closing arguments? Do you want to give exciting public speeches? It can be done, but only through “blood, sweat and tears.” Persuasive speaking is not a god-given talent but a skill that can be mastered just like so many other aspects of trial work. Of course, some have the voice of Billy Graham or James Earl Jones but those are few and far between. Speaking is a skill that can be mastered, but through intense and continued practice. I promise this is true. I know because this is how I learned it.”
Some of you may not believe this. A certain percentage of students don’t start training for trial and speaking skills because they think they’re not good at it and give up before they start. Well, no one is good at it to start with. We all start at the same place. Those with the motivation to succeed get off their ass and do it. Want a good example? – Al Gore.
Throughout his political career, Gore was at best an average speaker if not downright boring. And this is a man who was a United States Senator and Vice President. Yet, once he started speaking on subjects he passionately believed in, he transformed into an outstanding speaker. Just watch his documentary “An Inconvenient Truth” and speeches on global warming and other issues.
When you feel like giving up, remember Al Gore.