How to be a Great Communicator in Trial: Part 1 Your Words

What makes for a great communicator in trial (or elsewhere when the person is trying to convince an audience)? To be a great communicator as a trial lawyer you should concentrate on three things:

1. Your WORDS

2. Your VISUALS – MEDIA

3. Your DELIVERY

This article focuses on the words that a persuasive trial lawyer uses. Later posts will discuss visuals and your delivery of the words and visuals.

There is no better place to start than with the three types of arguments categorized by Aristotle:

• Ethical Appeal  - Ethos

• Emotional Appeal - Pathos

• Appeal to Reason – Logos

August of this year marked the 60th Anniversary of Martin Luther King’s “I have a dream” speech. Did Reverand King employing the Aristotlian arguemts when he gave that speech? Most people haven’t seen the speech in its entirety. Reverand King spoke for 17 minutes. The first 12 minutes were unremarkable because he was reading and he displayed hardly any emotion. Then famously Mahalia Jackson called out to him –“Tell them a about your dream Martin.”

Watch this video of King's "I have a dream speech" for content, and for the types of arguments made and the words he chose to compose a winning argument.

Ethos (ethical argument)

• “Five score years ago, a great American, in whose symbolic shadow we stand today, signed the emancipation proclamation.”

Pathos (emotional argument)

• “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but the content of their character.”

Logos (logical argument)

• “America has given the Negro people a bad check, a check which has come back marked ‘insufficient funds.’”

Reverand King picked the right words for his speech.

MARK TWAIN once said, “The difference between the almost right word and the right word is really a large matter—it’s the difference between the lightning bug and the lightning.” 

A great communicator in trial utilizes speech devices. A great communicator picks persuasive language. 

Reverand King picked the right words and used speech devises. He had a theme and picked the right words for it: “I have a dream.” He used the rule of three—repetition: "Free at last! free at last! thank God Almighty, we are free at last!" Also, he used an analogy: “In a sense we have come to our nation's capital to cash a check.”        

Karen Silkwood worked at the Kerr-McGee Fuel Fabrication plant near Crescent Oklahoma.  Her job was making was to make plutonium pellets for nuclear reactor rods.  Silkwood joined the union and became an activist on behalf of issues of health and safety at the plant as a member of the union's negotiating team. She was the first woman to have that position at Kerr-McGee. In the summer of 1974, she testified to before the Atomic Energy Commission   about her concerns.

In November 1974, Silkwood was found to have high levels of contamination on her person and in her home. While driving to a meeting that month with a journalist and an official of her union's national office, she died in a car accident under mysterious circumstances.

Renowned trial lawyer and trial advocacy teacher Gerry Spence, used an analogy in his closing argument in Silkwood v. Kerr-McGee. The analogy was about an escaped lion:

 

"Well, we talked about 'strict liability' at the outset, and you’ll hear the court tell you about “strict liability,” and it simply means: “If the lion got away, Kerr-McGee has to pay.” It’s that simple – that’s the law. 

"You remember what I told you in the opening statement about strict liability? It came out of the Old English common law. Some guy brought an old lion on his ground, and he put it in a cage – and lions are dangerous – and through no negligence of his own – through no fault of his own, the lion got away. Nobody knew how – like in this case, “nobody knew how.”

"And, the lion went out and he ate up some people – and they sued the man. And they said, you know: 'Pay. It was your lion, and he got away.' And, the man says: 'But I did everything in my power – I had a good cage – had a good lock on the door – I did everything that I could – I had security – I had trained people watching the lion – and it isn’t my fault that he got away.' Why should you punish him? They said: 'We have to punish him – we have to punish you – you have to pay. You have to pay because it was your lion – unless the person who was hurt let the lion out himself.' That’s the only defense in this case: unless in this case Karen Silkwood was the one who intentionally took the plutonium out, and 'let the lion out,' that is the only defense, and that is why we have heard so much about it.' 

Spence used the analogy to explain the law and to argue that Kerr McGee was liable. Analogies are the trial lawyer’s most powerful argument speech device.

A metaphor is a speech device where the object or idea is substituted for another to show they are alike. For example: Frost’s “A Road Less Traveled.”

Rhetorical questions are a great speech devise, right? Rhetorical questions invite the listener to reach own conclusion. Did he take the time to take aim at the chest?

SILENCE in courtroom – valuable tool.

 

TRIAL LAWYERS PAINT WORD PICTURES

 

Nothing is more effective in conveying information to an audience than doing so by painting word pictures. Use words to bring up pictures in your listeners’ the mind’s eyes. Seize your audience’s attention by vividly describing what happened. When you describe two pictures that are in striking contrast to one another that can evoke powerful emotions, particularly when you go from a pleasant to sharply different unpleasant scene. 

On this Memorial Day, I was thinking of another memorial in New York.

This is what happened at the sentencing in the Zacarias Moussaoui  case. It is difficult to even read what follows without feeling the sadness.

Zacarias Moussaoui  pleaded guilty in in federal court to conspiring to kill citizens of the United States as part of the 9/11 attacks. 

At the sentencing hearing, U.S. Attorney Robert Spencer said: 

“Thank you, Your Honor.

“September 11th, 2001 dawned clear, crisp and blue in the northeast United States.  In lower Manhattan in the Twin Towers of the World Trade Center, workers sat down at their desks tending to e-mail and phone messages from the previous days.

 

“In the Pentagon in Arlington, Virginia, military and civilian personnel sat in briefings, were focused on their paperwork.

“In those clear blue skies over New York, over Virginia, and over Pennsylvania, in two American Airlines jets and in two United Airlines jets, weary travelers sipped their coffee and read their morning papers as flight attendants made their first rounds.

“And in fire and police stations all over New York City, the bravest among us reported for work.  

“It started as an utterly normal day, but a day that started so normally and with such promise, soon became a day of abject horror.  By morning's end, 2,972 people were slaughtered in cold blood.”

“And that clear, blue sky became clouded with dark smoke that rose from the Trade Towers of New York, from the Pentagon in Virginia, and from a field in rural Pennsylvania.  And within a few hours out of that clear, blue sky came terror, pain, misery, and death, and those 2,972 never again saw their loved ones, never again gave their kids a goodnight kiss. 

“That day, September 11th, 2001, became a defining moment, not just for 2,972 families, but for a generation.

“Killers were among us that day and for more than just that day.  Those killers had lived among us for months, planned for years to cut our throats, hijack our planes, and crash them into buildings to burn us alive.

“On that day, September 11, 2001, a group of cold-blooded killers from distant lands capped their plan, their conspiracy, to kill as many innocent Americans as possible.  . . .”

Zacarias Moussaoui  was sentenced to six life sentences without parole. 

SIMILE—THE RIGHT WORDS FOR TRIAL LAWYERS—PART 3

Simile: A simile, like a metaphor, makes comparisons by using the words “like” or “as” to introduce the thing the subject is compared to. Like metaphors, similes also are powerful because they connect your case theory with something with which the jurors are familiar.

Here’s a collection of similes, some of them compiled by Paul Luvera, one of the nation’s leading trial lawyers:

Anonymous: Someone said he is like the rooster who thinks the sun comes up to hear him crow.

Frederic Rahael: Awards are like hemorrhoids; in the end, every asshole gets one.

Irving stone about William Jennings Bryan: His mind was like a soup dish, wide and shallow; it could hold a small amount of nearly everything, but the slightest jarring spilled the soup.

Muriel Spark: Being over seventy is like being engaged in a war. All our friends are going or gone and we survive amongst the dead and dying as on a battlefield.

Pope John 23^rd: Men are like wine; some turn to vinegar, but the best improve with age.

Thornton Wilder: I do borrow from other writers, shamelessly! I can only say in my defense, as the woman before the judge who was arrested for shoplifting and defended herself by saying: “I do steal, but your honor, only from the very best stores.”

Grenville Kleiser (1868-1953) in Fifteen Thousand Useful Phrases (New York and London: Funk & Wagnalls, 1917) listed Striking Similes in alphabetical order and you can visit it online here.

METAPHOR—THE RIGHT WORDS FOR TRIAL LAWYERS—PART 2

Metaphor: A metaphor makes comparisons by replacing one thing for another. Metaphors are powerful because they connect the information you want to impart to with something with which the jurors are familiar. Also, metaphors can be utilized to make a complex idea easier to understand. In trial advocacy, the metaphor can be a bridge between your case theory and something with which the jurors are familiar.

Here’s a collection of metaphors, some of them compiled by Paul Luvera, one of the nation’s leading trial lawyers:

Robert Frost—The Road Not Taken: “Two roads diverged in a yellow wood,

And sorry I could not travel both. . .”

Shakespeare—Romeo and Juliet: "Juliet is the sun."

Shakespeare—Macbeth: “Life is but a walking shadow.”

Shakespeare—Timon of Athens: “The sun’s a thief.”

Plato: “As empty vessels make the loudest sound, so they that have the least wit are the greatest babblers.”

Mark Twain: “Everyone is a moon and has a dark side, which he never shows to anybody.”

Churchill said of Secretary of State Dulles: “He is the only bull who brings his own china shop with him.”

Comedian Robin Tyler: “Fundamentalists are to Christianity what paint by the numbers is to art.”

Len Deighton: “In Mexico, an air conditioner is called a “politician” because it makes a lot of noise, but doesn’t work.”

Dwight D. Eisenhower: “Farming looks mighty easy when your plow is a pencil and you’re a thousand miles from the corn field.”

Jim Hardin, the District Attorney for Durham, North Carolina, in closing argument of the murder trial of Michael Peterson (The Staircase documentary): “I started looking around the scene and in the stairwell thinking—what if those walls could talk? What would they say? Ladies and gentlemen, these walls are talking. Kathleen Peterson is talking to us through the blood on these walls. She is screaming at us for truth and for justice. It’s all in these photographs.”

RULE OF THREE—THE RIGHT WORDS FOR TRIAL LAWYERS—PART 1

Successful trial lawyers know how to pick the right words to persuade. They use similes, metaphors, analogies, famous quotes, and the rule of three. We’re going to explore all of these, and we start with the rule of three.

Rule of Three: For a trial lawyer or for any public speaker, the application of the rule of three is a must. The pattern of three has an impact on the listener. The audience, the jury, will feel the triple phrases emotionally and retain it better. The rationale for the rule of three is that when things come in threes, they are more effective than when they come in any other number.

Think of all the great speeches and documents that incorporated the rule of three:

Joe Biden, June 2, 2020--“We are a nation in pain – we must not let our pain destroy us.

We are a nation enraged – but we cannot let our rage consume us.

We are a nation exhausted – but we will not allow our exhaustion to defeat us.”

Martin Luther King, Jr.’s I have a dream speech—"Free at last, Free at last, Thank God almighty we are free at last.”

Declaration of Independence—“Life, Liberty, and the pursuit of Happiness”

Abraham Lincoln’s Gettysburg Address—“We cannot dedicate—we cannot consecrate— we cannot hallow — this ground.”

Also, from Abraham Lincoln’s Gettysburg Address—“and that government of the people, by the people, for the people, shall not perish from the earth.”

Winston Churchill—"Never Never in the history of human endeavor has so much been owed by so many to so few.”

Winston Churchill—“I have nothing to offer but blood, sweat and tears.” Actually, on May 13, 1940, he said “blood, toil, tears and sweat," but is attributed with the other probably because it follows the rule of three.

Dale Carnegie—"Tell the audience what you're going to say, say it; then tell them what you've said."

Julius Caesar—“I came, I saw, I conquered.” Or in Latin, “Veni, vidi, vici.”  

Vincent Bugliosi’s concluding remarks in summation in the Charlie Manson murder  trial—“Under the law of this state and nation these defendants are entitled to have their day in court. They got that.

They are also entitled to have a fair trial by an impartial jury. They also got that.

Since they committed these seven senseless murders, the People of the state of California are entitled to a guilty verdict.”