MARTIN LUTHER KING’S ADVOCACY SKILLS

None of the students in my Trial Advocacy class were alive at the time of the march on Washington. None of them had watched the Martin Luther King’s “I Have a Dream” speech in its entirety. So, Tuesday’s class was an opportunity to not only commemorate the march and the speech but also let them learn from Reverend King’s example of how to be an advocate.

I asked the students to watch the full 17 minute speech for its content of course but to also focus on Reverend King’s advocacy skills. Listen to the types of arguments he makes. Listen for the rhetorical devises he uses. Listen to the modulation of his voice. Watch his nonverbal communication. Watch how his delivery changes when he is 12 minutes into his prepared speech and Mahalia Jackson says to him, “Tell ‘em about the dream, Martin.” He turns up from his text. He speaks from his mind and heart as a great communicator and national leader. When he speaks about his dream, his sincerity and integrity is evident.

My students learned how Reverend King resorted to the three Aristotelian arguments of Ethos, Logos, and Pathos. His logical (logos) argument was that African Americans had been given a promissory note – a promise of equality - “America has given the Negro people a bad check, a check which has come back marked ‘insufficient funds.’” He made an ethical (ethos) argument referencing Lincoln in his opening remark - “Five score years ago, a great American, in whose symbolic shadow we stand today, signed the emancipation proclamation.” And, he delivered an emotional (pathos) appeal - “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.”

My students learned how Reverend King utilized speech devises to reach and convince his audience. He used the powerful bad check analogy to describe how the marchers had come to Washington to collect - “In a sense we have come to our nation's capital to cash a check.” This was not a time for gradualism. He applied the rhetorical device of the rule of three (tricolon) which gives power to a speech - "Free at last! free at last! thank God Almighty, we are free at last!" Most of all he had a memorable and meaningful theme – “I have a dream.”

These are some of the things my students and we all can learn. The full “I Have a Dream” speech can be seen here.

WINNING AT MOOT COURT

Handbook for Moot Court Success

An excellent handbook on how to win in moot court has been written by Judge Gerald Lebovits and his co-authors. Judge Lebovits knows his subject. As a law student, he won the moot court award for both best speaker and best brief. As a coach, his moot court teams have won more than 100 first-place awards in regional and national intermural competitions. Judge Lebovits is a lecturer-in-law at Columbia Law School and an adjunct professor at Fordham and New York University Law Schools. His handbook will be published as an article in the Capital University Law Review, Vol. 41 (forthcoming 2013), and it can be found by CLICKING HERE.

This comprehensive instruction manual on successful moot court performance covers such important matters as how to: connect with the judge; deliver the argument; structure the argument; and respond to questions. Any law student who aims to win at moot court should read the whole article. Also, the article is useful to any advocate who argues to the bench.

The handbook contains “A Winning Moot Court Oral-Argument Checklist” with 60 solid points that moot court advocates should follow to be victorious. The tips are practical including:

• “Never, ever read. If you use notes, make them short and in bullet-point form on the inside of a manila folder cut down to fit on a small lectern or podium. But winning teams avoid using notes. If you do not use notes, make it obvious to the judges that you are not using notes – such as by slowly buttoning a jacket, slowly pushing in the chair, and slowly walking to the podium while making sure that the judges see hands that are holding nothing.
• “Do not compliment a judge by saying ‘That is an excellent question,’ but you may give a judge a respectful nod to recognize an excellent question.
• “Never begin with ‘this case is about. . .’ Although doing so articulates your theme up front, that beginning leads too often to a judge’s ruining your roadmap with a hostile question or comment articulating your adversary’s theme.’”

Reading and adhering to the wisdom that this handbook provides is likely to lead a moot court advocate to abide by this piece of advice on the checklist:
• “Buy silver polish to show off your winning trophy.”

THE CRITICAL LAWYERING SKILL

EFFECTIVE COMMUNICATION

This coming Tuesday Seattle University will introduce a new course that is designed to familiarize students with practical aspects of practicing law in order to prepare them to start work either in a firm, public employment, or in a solo practice. The intersession course (January 8 -10, 2013) is Essential Lawyering Skills: Persuasive Communication; Interviewing and Depositions, and my co-author Professor Marilyn Berger and I designed it and we’re excited about it.

At its core, the Lawyering Skills course is about being an effective communicator. While learning how to think like a lawyer is the time-honored skill taught in the nation’s law schools, the other critical lawyering skill set is the ability to effectively communicate with the lawyer’s audience - a client, a mediator, a judge, a jury, a witness, opposing counsel and so on.

Law schools traditionally have not only neglected to teach communication skills but also have been counterproductive. Jim McElhaney, advocacy instructor and ABA Journal contributor for 25 years, put it this way:

“Law school is as much obscure vocabulary training as it is legal reasoning. At its best, it can teach close thought and precise expression. But too often law school is reverse Hogwarts – where Harry Potter trained to be a wizard – that secretly implants into its students the power to confuse other people instead of sowing the magic seeds of clarity and simplicity. . .

“So we lard our speech and writing with words and phrases of awkward obscurity and rarely have anything to do with legal precision but that unmistakably say, ‘This was written – or said – by a lawyer’

“Because we are professional communicators, it is our obligation to be plain and simple. It’s not our readers’ and listeners’ jobs to try to understand us. It’s our job to make certain that everything we write and say commands instant comprehension.

“And because we weren’t turned out that way by our law school training, we have to reprogram ourselves if we want to be effective communicators.” ABA Journal (September 2012).

The concept that a lawyer should learn communication skills in order to be successful in the practice is nothing new. In his July 1, 1850 notes on a law lecture, Abraham Lincoln stated: “Extemporaneous speaking should be practised and cultivated. It is the lawyer's avenue to the public. However able and faithful he may be in other respects, people are slow to bring him business if he cannot make a speech.” (sic).

Areas explored during the Essential Lawyering Skills course include: communication skills; visual persuasion; today’s technology; forging and maintaining the attorney-client relationship; witness interviewing and preparation; taking and defending depositions; and civility in the practice of law. Course methodologies include lectures and workshops for the different subjects. The text for the course is Pretrial Advocacy: Planning, Analysis and Strategy.

Seattle University Law School is a leader in teaching how to effectively communicate in writing. Its Legal Writing Program has been consistently a top ranked program. Again, in 2012, U.S. News and World Report ranked the program number one in the country. In harmony with the Legal Writing Program, this inaugural Essential Lawyering Skills also focuses on effective communication skills.

CLINT EASTWOOD AND ADVOCACY

Halftime Pep Talk and Trial Advocacy

Super Bowl has come and gone. As have the ads. Much has been said and written about Eastwood’s halftime advertisement for Chrysler. Carl Rove attacked it, claiming that it was a payback to Obama for the bailout. Joe Klein in Time magazine mused over how Rove and the Republicans got it all wrong and how Romney suffered from “his party’s silliness.”

But, before the advertisement and these musings fade into history, the advertisement is worth remembering for what it was – a dynamic piece of advocacy. It was both well written and delivered; it serves as an example of powerful oral advocacy. It is the kind of persuasion that is ideal for a call to arms at the end of closing argument. Let’s revisit it and examine both the content and delivery.

Content

Here is the script again:

Eastwood: “Seems that we’ve lost our heart at times. The fog, the division, the discord and blame made it hard to see what lies ahead. But after those trials, we all rallied around what was right and acted as one. Because that’s what we do. We find a way through tough times, and if we can’t find a way, then we’ll make one.

“All that matters now is what’s ahead. How do we come from behind? How do we come together? And how do we win? Detroit’s showing us it can be done. And what’s true about them is true about all of us. This country can’t be knocked out with one punch. We get right back up again, and when we do the world’s going to hear the roar of our engines.”

The pep talk has at least four elements of a great advocacy. First, it is a story about overcoming obstacles and having fortitude: “We find a way through tough times, and if we can’t we find a way, then we’ll make one.” Second, it contains an ethical argument: “rallied around what was right.” Third, it uses a fitting analogy – a fist fight: “This country can’t be knocked out with one punch.” Forth, belonging and teamwork: “we” repeated throughout the message.

Delivery

While the pep talk is extremely well written, it is Eastwood and his delivery that make it so powerful. The truism is that you are your case. Here, Eastwood is the message – we will come back and succeed. He exudes confidence, grit and sincerity. He delivers the message in his best Dirty Harry, Grand Torino gravelly voice.

When crafting final words for a closing and how to deliver it, this ad is a nice reminder of how to do it perfectly.

VIDEO REVIEW: A SKILLS BUILDING TOOL

The Value of Video

Jennifer Shapiro, pictured here, stands before a jury of her peers – students in her comprehensive trial advocacy class at Seattle University Law School. She delivers her first opening statement in the class. It’s not her first opening because she has competed in mock trials before.

As she delivers the opening, a fellow student videos her. After Ms. Shapiro delivers her opening statement, she takes the video card and loads the video on her computer so that later she can watch and critique her performance. The goal of the video review is to see herself as others see her and by this means improve performance. Shortly, we will come back to what she learned.

At the National Advocacy Center in Columbia, South Carolina, where federal and state prosecutors receive advocacy training, the courtrooms serve as classrooms. Each courtroom has multiple cameras that feed into a video room. Student prosecutors are videoed as they do everything from opening statement to appellate argument. Following each performance and courtroom critiques, the prosecutor picks up the video in the video room and goes to a video-review room where a faculty prosecutor sits with the student-prosecutor and critiques the student’s performance while it is shown on a television monitor. While the critiques in the courtroom focus on content and speech, the video-review critique concentrates on non-verbal communication.

Video review is common in other trial advocacy training settings. For example, the Advance Trial Advocacy Course conducted at the University of Montana Law School is like that used at the National Advocacy Center. On the other hand the equipment we use in the Seattle University class is neither fancy nor expensive - a handheld Kodak PlaySport video camera on a small tripod placed on a jury box rail. However, both the picture and sound are good enough to accomplish the task.

Seeing yourself as others see you can be a painful experience because you are your own worst critic. Initially, you might focus on such things as needing to drop a few pounds or your hair thinning on top. But, after you get past that, you discover ways to improve.

Video review is best used to correct and perfect nonverbal communication skills. You can see distracting habits, such as pacing (watching the video in fast forward can produce an amusing dance), awkward fiddling with a pen or looking down at notes. You can adjust your behavior so that you maintain eye contact with the jurors, have good posture and gesture naturally. It is also helpful to hear your voice so that you can get better. You can learn to do such things as modulate your voice rather than have a constant monotone, pause to take advantage of silence rather than going at a steady pace and slow down rather than rushing ahead. Video review is a valuable catalyst to improve advocacy skills.

Ms. Shapiro viewed her video and this is what she wrote to me:

“I learned a lot from the video review. I have competed in a few mock trials, so I think I have a good understanding of what an opening should consist of substantively, but, as a former teacher, I feel awkward in front of the jury without a white board to point at or a book in my hand. After watching the video, I understand why you told me to, "Watch my hands." It was not until I saw the video that I even knew what I was doing with my hands as I spoke.

“The video was also helpful regarding my recovery if I forgot something or misspoke. In those moments, my appearance to the jury is last on my mind, so it is helpful to see how quickly I recover and what I look like as I try to remember something.

“Overall, the video review was very helpful.”

LAST SUMMER READING FOR TRIAL LAWYERS – IN THE INTEREST OF JUSTICE BY JOEL J. SEIDEMANN

Great Opening Statements and Closing Arguments

This last recommended summer read – In the Interest of Justice – Great Opening and Closing Arguments of the Last 100 Years, HarperCollins Publishers, 2004 – is a gift to trial lawyers. The gift to trial lawyers is given by author Joel J. Seidemann, who is a Manhattan Assistant District Attorney and currently prosecuting the Astor case in Manhattan. After reading his book, I contacted him to thank him for the gift, and he e-mailed back that the openings and closings had to meet two requirements to be included in his book: “excellent advocacy in high profile cases.”

The included transcripts excerpts of advocacy meet Mr. Sideman’s two prerequisites. The selected cases are very high profile, including, among others, the trials of: O. J. Simpson; Marv Albert; Sean Puff Daddy Combs; Adolf Eichmann; Martha Stewart; John Scopes; Amadou Diallo; Timothy McVeigh. Advocacy in these cases also satisfies the excellence test, with the advocates demonstrating how to effectively use these devices: storytelling; analogies; phrasing; humor; pathos; logic; themes and so much more.

Beyond satisfying these two requirements, Mr. Seidemann arranged the material in ways that are both entertaining and educational. For example, he juxtaposed Daniel Petrocelli’s opening statement for the plaintiff in the O. J. Simpson civil trial against Johnnie Cochran’s closing in the criminal case showing how two fine trial advocates can work the same case. Further, Mr. Seidemann provides well-written introductory overviews setting the stages for the transcripts of the openings and closings as well as thoughtful postscripts describing case outcomes and providing thoughtful commentary on the cases and trial work by the lawyers.

This book is a wonderful resource for trial lawyers, professors looking for illustrations of superb openings and closing and law students who are taking trial advocacy classes. If you know a deserving person with an interest in trial advocacy, In the Interest of Justice is the perfect gift.

LAWYER LINCOLN’S LESSONS: SINCERITY & TRIAL ADVOCACY

Lesson 2 – Sincerity is What Matters in Trial Advocacy

The keys to trial persuasion are to be sincere and to be able to project that sincerity. Sincerity, more than eloquence, a good appearance or any other attribute, is what really matters in trial advocacy.

Sincerity in the trial context means that the lawyer believes the cause is just. In this bicentennial of Lincoln’s birth it is helpful to look to how this trial lawyer approached life, particularly trial work. The first Lincoln lesson reviewed his creed, which reads in part: “I must stand by anyone that stands right. Stand with him while he is right, and part with him when he goes wrong.” This second lesson continues to explore that theme.

While a trial lawyer can never state a personal opinion to a jury about the justness of the cause, no prohibition exists that bars a lawyer from being sincere about the cause. Sincerity is the quality that makes for a great communicator in trial. You are your case. If you are sincere and can project that to the jurors, you will be able to effectively convey your case to them.

Recognizing that above all else sincerity matters when it comes to communication, here is a newspaper reporter’s account of what he observed at Lincoln’s Cooper Union speech, which is the subject of Harold Holzer’s book Lincoln at Cooper Union: The Speech that Made Abraham Lincoln President, Simon and Schuster (2004):

"When Lincoln rose to speak, I was greatly disappointed. He was tall, tall, oh, so tall, and so angular and awkward that I had for an instant a feeling of pity for so ungainly a man . . . His clothes were black and ill-fitting, badly wrinkled – as if they had been jammed carelessly into a small trunk. His bushy head, with the stiff black hair thrown back, was balanced on a long and lean head-stalk, and when he raised his hands in opening gesture, I noticed that they were very large. He began in a low tone of voice – as if he were used to speaking out-doors and was afraid of speaking too loud.

"He said, ‘Mr. Cheerman,’ instead of ‘Mr. Chairman,’ and employed many other words with an old-fashioned pronunciation. I said to myself, ‘Old fellow, you won’t do; it is all very well for the Wild West, but this will never go down in New York.’ But pretty soon he began to get into the subject; he straightened up, made regular and graceful gestures; his face lighted as with an inward fire; the whole man was transfigured.

"I forgot the clothing, his personal appearance, and his individual peculiarities. Presently, forgetting myself; I was on my feet with the rest . . . cheering the wonderful man. In the closing parts of his argument you could hear the gentle sizzling of the gas burners."

Lincoln’s sincerity and conviction came across in his Cooper Union address and swayed the audience. Public speaking research suggests that two things emerge as the most powerful in persuasion: sincerity and conviction of the speaker. And, this explains why Lincoln had this effect on his audience.

ORATORY – ADVOCACY LESSONS FROM OBAMA

MAKING A GOOD SPEECH TO THE JURY (OR TO ANY AUDIENCE)

In his inaugural day Washington Post article entitled “Obama’s way with words,” Henry Allen states that “Obama is an orator, a rare thing in a time when educated people — a lot of them Obama supporters — have been taught to distrust old-fashioned eloquence.” Rare perhaps in most walks of life, but orators are still prevalent and valued in the courtroom. Opening statement and closing argument are, at their essence, public speeches designed to connect with the jury or judge in a bench trial and to persuade.

ELEMENTS OF GOOD RHETORIC
Repetition and Cadence

The Washington Post article does a nice job of reviewing the elements of good rhetoric and uses Obama’s prior speeches to illustrate his mastery. For instance, the article states:

"Connect with repetition, cadences, attitude, rises and falls of tone. Yes, we can. Obama's speech on Super Tuesday: "We are the ones we've been waiting for. We are the change that we seek.

"This is poetry.

"WE are the ONES we've been WAITing for.
It's ancient English metrics: WE are the CHANGE that we SEEK, a chant of dactyls, DA-da-da, DA-da-da, as in Longfellow's "THIS is the FORest primEVal."

Writing an opening or closing – a speech - with an ear for repetition and cadence is excellent advice for the trial lawyer.

The Post article was written in anticipation of Obama’s address. Did the new President live up to the expectations of him as a public speaker in his address? Let’s consider elements of effective oratory. While his inaugural didn't have the cadence that he is known for, it did satisfy many of the other elements of an excellent speech.

Pick Persuasive Language

While a trial lawyer may never be able to master a delivery style and cadence of the President, the advocate can follow his lead and concentrate on selecting the right words to express an idea or describe the facts. Care can be taken to select words with the right connotations. These are a couple well crafted sentences from the address:

"As for our common defense, we reject as false the choice between our safety and our ideals."

"For we know that our patchwork heritage is a strength, not a weakness."

Rule of Three

The rule of three is a rule of repetition and cadence. It is extremely effective in driving home a point. It’s as old as “venti, vidi, vici” - “I came, I saw, I conquered.” Note how the Rule of Three works in this portion of the address.

"Today I say to you that the challenges we face are real.
They are serious and they are many.
They will not be met easily or in a short span of time.

But know this, America — they will be met."

Analogies

Analogies can provide a convincing and concrete form of inductive reasoning. This is particularly true if the analogy is common to the audience and has a human element. President Obama told the human story of American revolutionaries and their struggle and related it to the capital.

"So let us mark this day with remembrance, of who we are and how far we have traveled. In the year of America's birth, in the coldest of months, a small band of patriots huddled by dying campfires on the shores of an icy river. The capital was abandoned. The enemy was advancing. The snow was stained with blood. At a moment when the outcome of our revolution was most in doubt, the father of our nation ordered these words be read to the people:

"'Let it be told to the future world ... that in the depth of winter, when nothing but hope and virtue could survive...that the city and the country, alarmed at one common danger, came forth to meet (it).'"

Then, President Obama used that struggle and Washington’s words to support his argument that America can overcome the challenges of today.

"America, in the face of our common dangers, in this winter of our hardship, let us remember these timeless words. With hope and virtue, let us brave once more the icy currents, and endure what storms may come. Let it be said by our children's children that when we were tested we refused to let this journey end, that we did not turn back nor did we falter; and with eyes fixed on the horizon and God's grace upon us, we carried forth that great gift of freedom and delivered it safely to future generations."

Aristotelian Arguments

The Post article discussed the importance of Aristotelian arguments, and how President Obama has used them:

"Aristotle said good rhetoric should consist of pathos, logos and ethos — emotion, argument, and character or credibility.

"Obama has won souls mostly with pathos and ethos. He hasn't needed logos much because he's usually preaching to the choir, all those shining faces full of hope. In an ugly and dangerous moment in his campaign, however, he used logos to justify the complicated position he had taken on the incendiary racial remarks of his former minister, the Rev. Jeremiah Wright. It worked for him."

True to his prior artful use of ethos and pathos, the President captured the significance of the moment when he delivered this part of his address:

"This is the source of our confidence —the knowledge that God calls on us to shape an uncertain destiny.

"This is the meaning of our liberty and our creed — why men and women and children of every race and every faith can join in celebration across this magnificent mall, and why a man whose father less than sixty years ago might not have been served at a local restaurant can now stand before you to take a most sacred oath."

The Washington Post article provides a nice review of the essentials of good rhetoric and the President’s inaugural address gives us an example of how an orator can apply those essentials.