The Articulate Advocate: Persuasive Skills for Lawyers in Trials, Appeals, Arbitrations, and Motions

The Articulate Advocate: Persuasive Skills for Lawyers in Trials, Appeals, Arbitrations, and Motions

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An advocate may know what to say but is only effective when he or she knows how to be persuasive. Combining fact with know-how to persuade judges, juries, and arbitrator, the book teaches immediately useful techniques such as how to channel the initial adrenaline buzz, grab and hold the fact finder’s attention, gesture while speaking, speaking in phrases, and polishing the persuasive style. Based on 25 years of experience from coaching practitioners, this guide integrates cutting edge discoveries in human factors, gesture studies, linguistics, neuroscience, and sports psychology to give litigators a competitive edge. This brand new edition includes all new illustrations and new information on motions, arbitrations, and appeals.

Product Details

ISBN-13: 9781939506030
Publisher: Crown King Books
Publication date: 03/01/2016
Edition description: Second edition
Pages: 248
Sales rank: 347,303
Product dimensions: 6.00(w) x 8.90(h) x 0.90(d)

About the Author

Brian K. Johnson is the president of a consulting firm who teaches persuasion to trial lawyers and public speaking to transactional attorneys. For the past decade, he has trained new assistant U.S. attorneys at the Department of Justice National Advocacy Center. Marsha Hunter is the CEO of a consulting firm who teaches persuasion for trial lawyers and public speaking for corporate attorneys. Her specialty is human factors—the science of human performance in highstakes environments. She is the communication specialist for the National Institute for Trial Advocacy’s collaborative programs with the U.S. Department of Justice's Office of Violence Against Women. They are the award-winning coauthors of The Articulate Attorney and The Articulate Witness. They both live in Santa Fe, New Mexico. Jami Wintz McKeon is the chair of Morgan Lewis where she directs the firm’s strategic growth and its steadfast commitment to client service. She lives in Philadelphia, Pennsylvania.

Read an Excerpt

The Articulate Advocate

Persuasive Skills for Lawyers in Trials, Appeals, Arbitrations, and Motions

By Brian K. Johnson, Marsha Hunter

Crown King Books

Copyright © 2016 Crown King Books
All rights reserved.
ISBN: 978-1-939506-07-8


Your Body

For advocates, the name of the game is to look confident, comfortable, and credible. The way you stand, move, breathe, gesture, and focus your gaze significantly affects how a listener perceives you. As judges, jurors, or arbitrators listen to what you say, they unconsciously scrutinize your physical behavior and assess your credibility. If your demeanor signals nervousness and discomfort, you will be less convincing. But if you act confident and enthusiastic in your role as zealous advocate, you will be persuasive. To achieve this initial goal — looking dynamically at ease and believable at all times, even when feeling nervous — requires a fail-safe technique for controlling your body.

Understanding the function of adrenaline is of paramount importance to this process; few things have greater impact on an attorney's performance. Feelings of anxiety and excitement inevitably trigger the flow of adrenaline, which sends excess energy coursing through your system. This leads many advocates to pace or sway, take fast and shallow breaths, gesture awkwardly, and fidget with their hands. Even the eyes are affected by adrenaline: nervous energy makes it hard for the eyes to focus, and they tend to flit around the room, depriving the listener of eye contact and the advocate of concentration.

By learning to control your breath, as well as the movement of your legs, arms, hands, and eyes, you can channel the power of adrenaline and dictate how your body responds to it.

With guided practice, you will discover how to instruct your body to act in an appropriate and effective way. You can gain conscious control of your body by making desired behaviors part of a performance ritual. You will look comfortable and confident from the very beginning of every presentation, regardless of how you may feel.

Understanding Adrenaline

Adrenaline is a natural hormone dispensed by the adrenal glands. It flows through your body when your instinct signals a need for extra energy, perhaps to defend yourself, run away, or respond to the pressure of performance.

Performance pressures often take a positive form, such as excitement or anticipation. When athletes talk of "being pumped" for the big game, they are responding to that adrenaline being pumped, literally, by their bodies in anticipation of performance. Adrenaline also assists athletes by producing the extra energy needed to throw a ball farther or run faster, and by helping them to concentrate and focus the mind in the heat of competition. Likewise, adrenaline can be a positive factor for the advocate.

The body also releases adrenaline in response to negative pressures, such as nervousness, anxiety, and panic. Excess nervous energy often is referred to as the fight-or-flight syndrome, because adrenaline energizes and animates muscles in our arms to help us fight and in our legs to help us flee.

Although our need to outrun predators has been reduced in modern society, thankfully, we're all familiar with adrenaline-induced energy; it makes your limbs tremble. If you stand up to speak and feel your hands shaking, this is the result of adrenaline preparing your arm muscles to fight. If you feel your knees knocking, adrenaline is pumping extra energy into your thighs and quadriceps to prepare you to run from a threat. The trembling occurs because every muscle in your body is paired with another muscle — for example, biceps and triceps work together to move your forearm — and when adrenaline energizes both simultaneously, they tense and pull against each other, causing your arms or legs to shake.

The common form of nervousness known as "having butterflies in your stomach" takes place in the muscles of respiration. The flutter of those metaphorical butterflies occurs when the diaphragm and intercostal muscles in the ribs pull against each other in response to adrenaline. As you speak, you feel a trembling, which sometimes becomes audible. Your voice shakes or cracks when this excessive muscular tension robs you of adequate breath support, without which you will not be loud enough to be heard. Chances are good you will be so distracted by those butterflies that you won't be your most articulate, persuasive self.

For many advocates, adrenaline pumps because of an ever-shifting balance between excitement and nervousness. It is not only invigorating to confront the challenge of speaking effectively, it is also nerve-wracking — often just a little, sometimes quite a lot. Even seasoned lawyers admit that they experience this phenomenon. Although it is impossible to predict how much adrenaline you will generate at any given moment, it is guaranteed that you will feel the effect of at least some. Regardless of the cause of your adrenaline rush, the secret is to channel its corresponding energy in the most effective and appropriate way.

If adrenaline isn't channeled and released, it triggers various inappropriate, unconscious mannerisms that make you look and feel ill at ease. However, if you learn to recognize the impulses to fight, flee, or freeze, you can counter adrenaline's negative effects by proactively gaining control of specific parts of your body.

You may feel an extra rush of adrenaline as you prepare to face your fact finder or witness. Conscious control of your behavior can be established by counting several seconds of silence before you begin to speak. During this silence, run through a short physical checklist in order to prepare your body and focus your mind. Olympic athletes use just such an anticipatory silence to prepare to dive into a pool, ski down a mountain, or race around a track.

Creating Your Own Performance Ritual

In 1992, a 72-year-old retiree walked onto a basketball court in Riverside, California, and made 2,750 consecutive free throws without a miss. Dr. Tom Amberry, who had such confidence in his technique that he brought along ten witnesses who signed affidavits for his submission to the Guinness Book of World Records, readily admits he is not a great athlete and never was. So how did he accomplish such a feat? He had a great technique. In his book Free Throw: 7 Steps to Success at the Free Throw Line, he describes the mental and physical ritual that gave him such astonishing control and consistency. Every move Dr. Amberry made prior to each shot was part of an unvarying routine. During the silence between shots, he went through a physical checklist. How he planted his feet, how he breathed, how many times he bounced the ball, how his fingers held the ball, how he focused his eyes on the basket — every move was precisely the same 2,750 times. Because his ritual was so consistent, he achieved remarkable results on the basketball court. As demonstrated by Amberry's amazing accomplishment, consistent ritual can help you achieve similar success as an advocate.

Sports psychologists teach that if you want to perform at a high level, you need a consistent mental and physical ritual on which to base your performance. The function of this ritual is to enable the mind, through repetition and practice, to control the body, and to enable the body to control the mind. Together, body and mind help control emotion.

To achieve a consistently effective style, devise and refine a physical ritual for use every time you stand up to speak. In time, this routine will become "second nature" — behavior that looks natural, but is actually the result of technique and diligent practice.

Reliance on a physical ritual frees your brain's prefrontal cortex (the area of your brain responsible for higher intellectual function) from being distracted by pacing, fidgeting or gesturing, and it ensures that your body's actions will be governed by your motor cortex, the brain's overseer of natural automatic functions. Your prefrontal cortex can then focus on more important things, such as what you want to say and how you want to say it. By ritualizing your physical actions, you engage your instinct to move and gesture naturally.

For your own ritual, start with your feet and move up your body to your head. Use a mental checklist to position and align your feet, knees, hips, breath, arms, face, and eyes. Running through this quick checklist will help you get control of your body, positioning and aligning yourself for optimum performance every time you stand to speak.

Think from the bottom up, focusing briefly on each part of your body. Use your own body as a mnemonic device to memorize your physical ritual.

Controlling Your Lower Body

In most sports, athletes start by planting their feet in the proper stance. The golfer adopts a stance and then swings a club. The baseball player ritualistically plants both feet in the batter's box and then swings a bat. The basketball player finds a stance on the free throw line and then shoots. As an advocate, begin by planting your feet on the courtroom floor.

Plant Your Feet

Stand with your feet a comfortable distance apart. Don't place your feet so close together that your shoes touch; this stance is too narrow for a solid, comfortable foundation. Do not adopt a stance that is too wide or you will look like a gunslinger in a Western; somewhere between the extremes of too narrow and too wide is a stance that is just right. Avoid standing with your feet in perfect parallel position, as if you are gliding along on skis. Such perfect symmetry can make you look slightly square and wooden, like a soldier at attention. Don't cross your ankles, which looks too casual. Instead, try standing with your feet slightly asymmetrical and out of perfect alignment with each other. Slight asymmetry in the stance makes your body look more relaxed.

Stand up and experiment right now with finding the right stance for you. Better yet, stand in front of a floor-length mirror so you can see how your stance looks. Once you are satisfied, use it every time you stand up in court. Soon it will become second nature, and your body, just like an athlete's, will do it automatically, without your needing to think about it.

Adopt your stance in the moment before you speak. Do not utter a word until you have planted your feet and are standing still. Then, pause for another moment, take a breath, and feel the floor.

Stand Still

Newton's first law of motion also applies to advocacy: A body at rest tends to remain at rest; a body in motion tends to remain in motion. When you plant your feet and stand still, you look calm, comfortable, and in control, and your body will tend to stay at rest. If you start talking while your feet are still moving, your body tends to stay in motion — and may never stop. Random movement will make you appear nervous and ill at ease. Because adrenaline energizes your leg muscles, it is natural — but undesirable — to unconsciously rock, sway, pace, or shuffle your feet. So obey Newton's Law: plant your feet and stand still at the beginning of a presentation.

Flexible Knees

The next step in the ritual is to align and balance your knees and hips over your feet. Your knees should feel flexible. Don't lock your knees by pushing them backward, tightening the thigh muscles and drawing your kneecaps upward. The desirable sensation of flexibility is a feeling of the knee joint floating, perfectly balanced. Think of it as "subway knees," similar to the knee adjustment you make as the door closes and the bus or subway car is about to move. You flex your knees ever so slightly to maintain your balance when you feel forward movement. The adjustment is subtle and virtually invisible. Your knees do not bend as in a crouch, but they adjust enough to flexibly absorb the forward lurch of the train as it pulls out of the station. With flexible knees, your legs will feel comfortable, even when you are standing still for a long time.

Stand up and experiment briefly to find this subtle feeling. Lock your knees backward and feel the sensation you want to avoid. Crouch slightly to move the knees in the opposite direction. Now find the perfect midpoint where the knee joint is floating and flexible. On the checklist, add these flexible knees to your planted feet as you continue to move up your body.

Center Your Hips

Center your hips over your feet and knees. This balances the weight of your torso evenly over both legs, allowing each leg to share the load equally. Although it may temporarily feel comfortable to stand with your body weight and hips shifted off to one side, this off-center position puts most of your body's weight onto a single leg. Eventually that leg gets tired and your body shifts the weight to your other leg. Soon your body is rocking side to side, as each leg in turn tires and shifts the burden to the other. This rocking motion distracts the listener and makes you look nervous. Note that some looseness and flexibility of your body is desirable, however; you shouldn't feel as if you've been sunk in concrete. So, avoid both repetitive rocking and absolute rigidity.

For women wearing high heels, be aware that they can subtly shift your weight forward onto your toes, causing the buttocks to shift backwards and up. This position shortens and tenses the muscles of your lower back. To counteract this, consciously center your pelvis over your feet and rotate it forward slightly — dancers refer to this as "tucking the tail bone." This will lengthen and relax the muscles in your lower back.

Once you have planted your feet, softened your knees, and centered your hips, you have conscious control of the biggest muscles of your body: buttocks, thighs, and calves. This allows you to control your adrenaline and stand still, even if you are feeling nervous. When you first stand up in court, start by standing still; then, later on, make a conscious decision about when and where to move, assuming the judge allows it. Some judges insist that lawyers remain standing behind a lectern unless they need to approach the witness stand with an exhibit. In some jurisdictions, you must stay at a lectern so a microphone can record the proceedings. If that is what the situation demands, you must be able to comply comfortably. If a judge allows you the freedom to move, do so with a purpose.

Move with a Purpose

Your movement in a courtroom is completely at the discretion of the judge. Some judges require that you ask permission every time: "May I approach the witness, your honor?" Others may give you more general permission to move as you wish. Know what your judge will allow and adjust your behavior accordingly. Assuming you have permission to move, make any movement conscious and purposeful.

A purposeful move is motivated by and connected to your words and ideas. A purposeful move occurs when you walk to a new location as you begin a new topic: "Mr. Gomez, we've talked about your educational background. Now I want to move on and focus on your professional experience." Or, "We've talked about your inventions and patents; now I want to ask you about your licensing agreement with the defendant." Once you have reached the new location, remain there until you are finished and have asked all your questions. This purposeful use of movement assists a jury by helping to clarify the structure of your presentation. The move signals a new beginning and helps to recapture the attention of jurors whose minds have wandered. It invites the distracted listener to re-engage.

Your decision to move must always be made by your thinking brain, not your adrenalized leg muscles. The largest muscles in your body will move of their own accord when they are energized by adrenaline. Powered by instinct and hormones, such movement is truly natural — but it doesn't make you look natural, and it certainly isn't desirable. Random movement may feel good because it uses and dissipates the adrenaline in your legs. But resist random movement, and move only when it makes sense.


Excerpted from The Articulate Advocate by Brian K. Johnson, Marsha Hunter. Copyright © 2016 Crown King Books. Excerpted by permission of Crown King Books.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

Table of Contents


Chapter One Your Body,
Chapter Two Your Brain,
Chapter Three Your Voice,
Chapter Four How to Practice,
Chapter Five Applying Your Skills at Trial,
About the Authors,

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