Saturday, January 4, 2020
Oral argument seems to be going by the wayside (especially in federal courts). Many judges have stopped allowing them altogether.
Some folks are critical of this shift, but consider that in surveys, most judges say that oral arguments change the outcome in only a tiny fraction of cases. We can also wonder how online courts might change things on the oral advocacy front. Will we see even less oral argument as disputes are shifted to online platforms and out-of-sync written submissions?
We can wonder about whether oral arguments will continue mattering so much—but the same can’t be said for in-person presenting. Nearly every lawyer of every kind verbally presents information on the regular. Whether it be to clients, senior attorneys, the government, or in-house stakeholders. For some legal jobs, presenting is more of the day-to-day than writing.
So oral presenting skills matter to us all. It just may not be in court. The good news is that the skills mostly translate. Get good at presenting complex information to a judge and doing the same for others will be a breeze. Whether you are a newer lawyer and still getting the feel of talking on your feet, or an old hat. Here are some thoughts for building this skill.
1. Following along when someone is talking is tough. So make it easier.
Roadmap regularly. Repeatedly remind your listeners where you are, where you’ve been, and where you’re going. Most lawyers shirk this tool. But your listener is breathing a sigh of relief every time you reorient them.
Break down anything complex into multiple steps or discrete points. Give your reader that framework ahead of time.
Talk slowly and take your time. It seems like a lot in your head, but the points that matter are probably few. Better to step carefully and make sure you do a good job walking through the important stuff.
Spoon-feed information one bit at a time. The more you pack into sentences or cram together without a thought break, the harder it’s going to be for your listener.
Try to be chronological when you can. About facts. About caselaw. About arguments.
If the facts matter, turn them into a story at the outset. That will be much easier for your listeners to remember and keep track of.
Build rule frameworks that lead to the outcome you want. This means breaking down complex rules into smaller chunks, delivering those chunks one at a time, and framing the rule in a way that the good and bad facts will slot right in.
2. Accept that you aren’t getting through everything that’s in your head or in your document.
That is not the point; the point is to convey key ideas and to answer questions and concerns for your listener. Prioritizing is pivotal—both when preparing your presentation and during it.
3. Be credible.
Your credibility is everything. Be humble but confident in your positions. Concede thoughtfully. Don't exaggerate or oversell.
The gold standard is when a judge or other listener starts to view you as a respected colleague and becomes genuinely curious about what you think.
4. Body language communicates about as much as what you say.
Learn the basic ways to communicate confidence, openness, and thoughtfulness (voice tone, voice volume, posture, movements, eye contact, verbal fillers, and more).
Use a conversational tone like you would with a respected friend. You need to emotionally connect with your listener, if possible. So use familiar language and avoid legal formalism and jargon.
Be enthusiastic. Judges want lawyers to care about the law, care about the case, and care about the issues they are arguing about. Put some inflection in your voice. Speak loudly enough to be heard. At least pretend you're interested.
Make eye contact. Judges want you to look at them. When you gaze off into the distance, they feel like you are talking at them. Keep eye contact for 5-7 seconds at a time. Then switch to other listeners (if there are any) or occasionally look at your notes to make sure you’re on track. You don’t want to stare down the judge, either.
Some gestures are ok—but keep them in a box. Keep your hands and arms in a 2-foot by 2-foot box around your midline. Don’t flop your hands all over. And use movements to emphasize or help support your points.
Facial expressions matter. Try to smile some. And whatever you do, don't say things with your face that you wouldn't with your words (like that your listener is crazy).
5. Get off on the right foot.
Craft a pithy start. A great oral argument starts with a line or two that sums up your theme and makes an impression. This is true for oral presentations, too.
“Malicious prosecution requires the plaintiff to prove there was no probable cause, and this court has repeatedly said that this is a ‘strict requirement.’ The plaintiff didn’t even try to submit evidence about probable cause here, voluntarily dismissing her case because, in her words, she ‘didn’t have the evidence.’”
Roadmap at the start. List off the high-level issues you will cover in the argument. Don't ignore how helpful this is like many lawyers do.
6. End on a good note.
There are two types of conclusions. Quick and packaged. Either way, be specific with what you want the court to do. Quick conclusions are when you’ve run out of time and need to sit down. If so, say something like “For all these reasons, we ask that the court dismiss the complaint.”
Packaged conclusions are for when you have some time. There, you should have a nice, prepared finish that wraps in your theme.
“Your honor, the courts have held, three times now, that an allegation of ‘general fraud’ isn’t enough, and that is all we have here because X and Y. So we ask you to dismiss.”
7. Answer questions first and well.
It's hard to fathom why so many experienced lawyers ignore a basic, common-sense, self-serving truth: Questions are your friends. They tell you what your listener cares about. And what your listener cares about, you should care about. Your priority in nearly every in-person presentation, and especially oral arguments, should be to answer questions and turn your listener's concerns and confusions into a conviction that you are right. Answer questions before moving on to what you think matters.
Deliver packaged answers. Instead of word vomiting everything you can think of to answer a question, try to come up with a sentence or two that sums up your answer. Like a headline. So many lawyers lose their listeners during long, convoluted answers.
“Yes your honor. Because Park v. Gesmundo held that claims like these are barred. [more explanation, if you need it, detailing this headline]”
8. Manage your anxiety.
Most of us are anxious (or downright panicked) about public speaking. You can't ignore that; you need to work through it. Anxiety is both physical and mental. And there are easy ways to work on both ends. Here are some proven methods that work:
Control your breathing. When you feel yourself panicking, take a couple of minutes to do a breathing regimen. A tried-and-true method is the 747:
- Count to 7 as you breathe in;
- Hold the breath for 4;
- Count to 7 as you breath out;
- Repeat six times.
You can do this right before your argument, but it’s even more effective if you do it each time you have anxiety at the thought of the argument. Train your brain to stop the anxiety response. I’ve used this simple technique with hundreds of law students and lawyers. And it works every time.
Next to breathing techniques, visualization is one of the best tools to combat fear and anxiety. To get the most bang for your buck, try to imagine for all your senses: smells, sights, sounds. Visualize the argument going well, feeling good about it, and getting excellent feedback.
Talk (nicely) to yourself. Self-talk has a lot of science behind it. Don’t be negative—your psyche starts to believe you. Reassure yourself.
Create some rituals around your public speaking. By having a ritual and practicing with it, you start to train your body and mind to get to the same centered state when the ritual is triggered. It can be as simple as bringing a favorite pen or a giving yourself a quick affirmation. Some neat research supports rituals like these.
Practice in unfamiliar locales. Real public speaking often happens in unfamiliar places and sometimes without much warning. So emulate those uncomfortable aspects by pushing yourself to speak in different environments.
Do more public speaking. Embrace the chance to get up and talk and respond. Each time, you hone your skill.
Joe Regalia is a law professor at the University of Nevada, Las Vegas, William S. Boyd School of Law and regularly leads workshops training legal writing and technology. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles and writing tips here.