HOW TO SPEAK TO AN APPELLATE COURT

PART 1

 

(Posted January 22, 2019) It’s been quite a while since I’ve addressed the topic of oral advocacy. While there are numerous speaking styles, and no one of them is definitively correct, here are some notes on the way I do things.

Part 1 – How to Speak

This section is simultaneously breathtaking in its scope and dangerous in its connotation. The topic of how to speak is immense; the study of rhetoric and oratory goes back at least to Aristotle and Demosthenes. And tackling the task of telling people – educated people, at that – how to do something as basic as talking risks giving offense. After all, while we may realize that we’re not very good at painting portraits or singing or ballet, everybody perceives that he or she can talk well. You do, right?

As for the scope, I won’t try to be comprehensive here. I couldn’t possibly set out in an essay everything I’ve learned about public speaking since I was 13 years old and received my first training in it. It’s far too voluminous, and besides, there are some things that I don’t even realize that I know; they just come naturally after a lifetime of practice.

As for giving offense, please be assured that I’m not here to insult anyone. One of my primary goals in publishing this website is to help you to become a better appellate advocate. But even professionals who are highly skilled in their chosen craft may not know how to convey ideas clearly, forcefully, and persuasively. Here are a few basic suggestions.
Stop interrupting yourself

Have you ever heard a recording of yourself speaking at a time when you didn’t realize you were being recorded? If so, you may have noticed that the ordinary speech that you thought you’d delivered without a hitch actually had a great many interruptions. This usually takes the form of saying “um,” though occasionally speakers say “you know” in situations where they aren’t referring to the listener’s state of knowledge. I cringe when I listen to interviews with important people, and hear five or more “um” pauses in a single sentence.

You should regard this tendency as a speech impediment, and the most basic public-speaking advice I can give you is to become aware of it and train yourself out of this nasty habit. Speakers say “um” when they aren’t sure exactly what to say next. The first way to retrain yourself, then, is to consciously take the time to decide in advance exactly what you’re going to say, and only then start speaking.

The second way to eliminate “um” from your speech is to recognize the strategic value of a short pause. That is, instead of filling the one-second silence between two thoughts with an “um,” try filling it with silence.

What, am I getting too picky for you? Fussing over something that everybody does? Not at all, assuming you want to speak like a professional. Try this example. Imagine a trial in a red-light, green-light case. Two witnesses claim to have seen the collision from a position where each was able to see the traffic light. Asked the identical question, “What color was the light when the defendant’s car entered the intersection?” the first witness answers, “Um, the, um, light was, um, red.” The second one answers after pausing one second, “The light [very short pause] was green.” If you have no more information than that, and you haven’t been able to observe the witnesses’ demeanors, which do you tend to believe?

If you’re like me, you’re at least leaning in the direction of a green light. All those “ums” from the first witness project a lack of confidence, and virtually all juries will pick up on that. The same is true in causal conversation, and it’s emphatically true in an appellate court, where the conversation is not causal. If you want to become a polished speaker, you must banish these self-interruptions from your speech.

Make eye contact

This one’s easy: A speaker who looks you in the eye is likely to be perceived as more forthright, more believable. Years ago, I read about a study of eye contact between speakers and listeners. The study concluded that the speakers, on average, looked directly at the listeners roughly 50% of the time, while the listeners looked at the speakers 80% of the time. That’s not a complete surprise, because one of the aids to understanding another’s speech is to watch the speaker – sometimes for clarity when the speaker mumbles (you can probably read lips a bit better than you think) and sometimes for nonverbal clues.

To improve your persuasiveness, resolve to make eye contact more than 50% of the time. Don’t go to 100%; almost every listener finds it creepy when a speaker stares holes into the listener’s skull. But the more the listener sees you confidently making eye contact, the more persuasive you can be. Perhaps we acknowledge that it’s harder for most people to lie when the listener can see the speaker’s eyes; when the speaker can’t meet your eyes, isn’t he trying to hide something?

This, of course, means that reading a speech from a script is a very poor means of communicating effectively. If you’re only making eye contact with your notes, you aren’t making eye contact with your listener.

Connotation is the most important word

Communication is the process by which an idea is transferred from one brain to another. It doesn’t have to be verbal; a shaken fist can communicate a threat quite effectively. But we’re talking today about oral communication – that is, verbal communication by speaking. (Verbal simply means that you use words. It is not the opposite of oral.)

Preferably, the idea should arrive in the receiving brain intact. If it doesn’t arrive, or if it’s “damaged” in transit so that the listener receives a different idea, that’s a miscommunication. Miscommunication can occur when the listener can’t hear the exact words, and that can be either because the speaker mumbles, because the listener is hard of hearing, or because there’s an A-10 Thunderbolt flying overhead. The solution to those kinds of miscommunication is straightforward.

We’ll address a different form of miscommunication – where the listener hears the speaker’s words but assigns a different meaning to them. This usually occurs due to one of two causes: The speaker’s word choice is ambiguous, or the speaker and listener attach different meanings to the same words or phrases. This is a problem of connotation, the meaning that the listener attaches to the content.

Here are a couple of simple examples. If I tell you that my office is on the first floor of an office building, you might think, Good, I don’t have to climb any stairs. But if a subject of Her Britannic Majesty hears those words, he will envision what we Yanks would call the second floor. On that side of the pond, they call the floor that’s at street level the ground floor, and the one right above that is the first floor.

Or suppose a modern Rip Van Winkle awoke today after slumbering for, say, sixty years. If he felt glad to be alive and announced to those around him how gay he felt, they would likely attach a different meaning than the one he intended.

The point of all this is that for a speaker, connotation is the most important concept. Just as in the world of business “the customer is always right,” in communication it matters most what the speaker perceives. What you intended to convey is secondary. That counsels careful word choice, a knowledge of your audience, and of course clear enunciation.

You don’t speak only with your mouth

Gestures are a natural part of oral communication. If you doubt their importance, try giving a speech with your arms crossed behind your back and without moving your head. You can get the words out, but you’ll feel cheated in that you can’t use gestures for things like emphasis.

The topic of gestures in public speaking is also quite broad, and I won’t try to be comprehensive here, but the first key toward a greater mastery of the subject is to take account of your gestures. The best way to do this is to have someone record you delivering a speech of about five minutes, then go back and watch, making note of each gesture you make.

Doing this will quickly reveal a few truths. Pointing a finger directly at your listener is almost never a good idea, and great speakers don’t do it except in very rare circumstances – basically, only when it cannot be perceived as an attack. (Think of the Uncle Sam recruiting poster: “I want YOU …”) Instead, they gesture with an open hand, palm up and tilted inward, fingers slightly apart and extended in a natural curve toward the audience. That’s not threatening; it’s welcoming.

With gestures, I recommend an understated approach. I saw a politician giving a speech the other day in which she waved her arms outward, above her head. Maybe what she was saying was stirring, but I missed that part. What I noticed was that she was mimicking an attacking animal demonstrating its ferocity. Unless you plan to cow your audience into timid compliance, this is usually a bad choice.

There are time-tested gestures that you can view online: the Billy Graham two-handed karate chop; the backward-sweeping extended arm that conveys that you’re referring to a vast subject matter; even the thoughtful removal of eyeglasses before you say something truly important. Gregory Peck’s gestures in his closing argument in To Kill a Mockingbird are particularly instructive for lawyers … but we’re getting ahead of ourselves. That’s for Part 2.

The important thing is to be aware of your unconscious gestures. After you do that, you can consciously mold them to make you a better speaker – even the “speaking” you do with your hands.

Find your voice

This is one theme of Stephen Covey’s book, The 8th Habit. He counsels his readers to “find your voice and inspire others to find theirs.” My message is slightly different, though I wholeheartedly endorse Covey’s excellent advice.

I began this essay with the observation that there are numerous speaking styles. You’ve heard a gazillion of them over your lifetime. Some speakers are dazzling; others are mesmerizing; still others inspire strong passions. There are, of course, speakers on the other end of the effectiveness spectrum.

Nowadays, you can listen online to some of the greatest speakers of the past 100+ years. Personally, I love listening to Churchill’s brilliance, especially the concluding passage of the “Finest Hour” speech. For others, brilliant orators like Martin Luther King, Jr., Ronald Reagan, or the great appellate advocates of yesterday and today reach their listeners’ core, awaken a yearning within them.

By all means, allow these great voices to inspire you to become a better speaker. Just don’t try to adopt Churchill’s speaking style, or King’s, or Reagan’s. It won’t work, because you’re none of them. You may draw from them examples of cadence, volume changes, and rhetorical flourishes to help develop your speaking. But don’t try to be someone else, or talk like someone else. You do you. Anything else will come across as inauthentic.
 

HOW TO SPEAK TO AN APPELLATE COURT

PART 2

 

(Posted January 27, 2019) In Part 1, I explored the first half of the topic I’ve named above – how to speak. As I noted there, I worried that my posting that essay would offend some people, since lawyers speak all the time, and presumably know how to do it. When you tell a professional that he or she isn’t a polished speaker and can improve, resentment is a foreseeable reaction.

But yesterday I got confirmation that last week’s “refresher course” was worthwhile. I was in Williamsburg for the Virginia Bar Association’s annual meeting, and attended the closing plenary session, a panel discussion to address how lawyers can be part of the process of reuniting a sharply divided America. One of the speakers, U.Va. President Jim Ryan, repeatedly violated two of the rules I set out, making his presentation far less effective. While I appreciated the content of his remarks, he violated some of the very basics of public speaking that I laid out last week.

Please know that I’m not picking on a schnook here. President Ryan taught at U.Va.’s law school for 15 years and then went on to direct Harvard’s Graduate School of Education. He wrote a terrific book, Wait, What? that I read last year and greatly enjoyed. (This means he’s holding some of my money. He’s welcome to it; the book was remarkable.) He’s a brilliant mind and an outstanding member of our legal community. It’s possible to be all these things and yet not a polished speaker.

(On the assumption that someone up in C’ville reads VANA, I should be on the lookout for hate mail from the president’s office.)

Let’s move on to the second half of the greater topic.

Part 2 – Speaking to appellate courts

As with last week’s topic, this essay isn’t intended to be comprehensive. There are whole books on appellate oral argument, and I’ve written entire chapters on the subject before. This will be shorter: As with last week’s essay, I’ll focus here on the basics.

Embrace your nerves

As I mentioned last week, appellate oral argument is not casual conversation. You’re going to be nervous. Good! That’s a sign that you’re alive, because the only speakers who don’t feel even a tinge of nerves are already in the hands of the coroner.

Being a professional, you probably won’t want to embrace your nerves. You’ll either deny their existence or ignore them. This is a dangerous approach. When you get to the lectern and something suddenly grabs your gut, squeezes, and twists hard, you likely will either faint or throw up. Both of these, by the way, are bad outcomes for your client.

Instead, embrace your nerves. Recognize in advance that you will feel nervous, but know that this is merely one of the many environmental factors that will affect your speech. It’s like the lighting, the acoustics, and the temperature in the room. If you’ve prepared – and preparation is one of the very best dragon-slayers when it comes to nerves – you’ll feel an initial jolt of nerves, but then when you get into your presentation, those will fade away.

Art Linkletter is credited with this observation: “It’s impossible to make the butterflies in your stomach go away entirely, but you can get them to fly in formation.”

Speak English

As much as you might be tempted to use flowery rhetoric or show off a robust vocabulary, you’re better off speaking in plain terms. You aren’t there to show how smart you are; you’re there to win minds and votes. Each member of an appellate court is intellectually qualified to be there, so in many instances, even using relatively obscure terms won’t get you in serious trouble.

But why risk it? Why take the chance that your deep dive into Roget will generate a word that one or more jurists won’t immediately recognize? If you do that, the listener may spend some time trying to figure out what you were trying to convey, and that means that he or she has disembarked from your train of thought, and the next phrase or three out of your mouth will be wasted.

This goes for Latin, by the way. There are several such phrases that every lawyer and jurist knows well – res judicata comes immediately to mind – and those are okay in this forum. But if you decide to spice up your speech with terms like mutatis mutandis, you’re risking losing someone’s attention. English.

Have a respectful conversation

I’ve read something like this concept in other places, but my appellate pal George Somerville has expressed it best, in my view: The ideal appellate argument is a respectful conversation among intellectual equals with a mutual interest in the subject matter. This means that you don’t suck up to the court with fawning expressions – “What an outstanding question; I’ll try to answer it, your Honor” – because they hate that. Nor do you lecture the court. They hate that even more. This means, among other things, that you should never “direct the court’s attention to page 85”; you don’t have the right to direct the justices to do anything. Invite the court’s attention instead. (This advice, by the way, works just as well with trial judges.)

You should view this process as a joint exploration of a topic that interests you both. It still isn’t casual conversation; remember George’s admonition that it’s respectful. That means that you can’t be flippant. Sarcasm is definitely out.

I’ll emphasize the word conversation in this advice. You will assuredly have prepared a speech, but be ready to depart from it, as you would in a normal, out-of-court conversation when someone raises a side issue and asks about that. You don’t reply to one of your pals in that situation, “Hold on; I’ll get to that later. Back to my speech …” And that brings us to our next topic.

Pray for questions

Especially if you haven’t embraced your nerves, you might walk to the lectern hoping against hope that you can just give your speech without any interruptions. That way, you can stick to your practiced script and then make a speedy retreat out of the courtroom, with all your limbs still attached to your torso. Lawyers like this perceive any question from the bench as a hand grenade tossed into their laps.

Get over that. I know I speak for Virginia’s entire appellate bar when I say that from the very moment when I approach the lectern, I’m silently begging to be interrupted. I want questions; the last thing I want to do is deliver “the Easter Island speech” to a row of silent, impassive faces.

Why would we feel that way? After all, if you’ve prepared and practiced your speech, it’s a polished finished product, and you cannot improve on it. Interruptions just introduce chaos into your presentation.

What those questions really do is tell you what bothers a given justice about your position. If no one interrupts me, the first time I’ll know about those misgivings is when I read the published opinion, and that’s a bad time to find out. But if I get a question – especially a really tough one – it affords me an opportunity to address that, to explain to that justice why this isn’t really a problem at all. While we’re on this subject …

Answer the damned question

The very worst thing you can do in an appellate court is misrepresent the facts, the record, or the law. That’s the equivalent of, in the words of the eminent strategic scholar Vizzini, getting involved in a land war in Asia. To experienced appellate advocates, doing that is inconceivable. But only slightly less well-known is the effort to evade a question.

Appellate lecterns are set up so that you can neither run nor hide. Even so, many advocates try to do that metaphorically, by seeking to duck tough questions. The first time you do this, you’re likely to get a gentle nudge, something like, “I understand that, counsel, but what I really want to know is …” followed by a repeat of the initial question.

You must recognize this gentle, polite phrase as a four-alarm fire. At this point, there’s nothing in your career more important than providing a direct answer. If you try to dodge the ball again, the court’s reaction will not be as benign as it was the first time.

The best approach to this problem has little to do with actually speaking to an appellate court; it’s the preparation for that speech. Most of my appellate colleagues spend plenty of preparation time – for me, it’s far more time than I spend writing a speech – anticipating the toughest questions they can receive. We then work out the best responses to those questions, and jot them down in a safe place in our argument notebooks.

This isn’t foolproof, because you could always get a question that you didn’t anticipate, and that lack of prevision isn’t a license for you to evade. But if you can anticipate most of those, your experience in answering will be much smoother.

What to say when you don’t know

I live in a Navy town, so I know a fair number of sailors and officers, active and retired. From them, I’ve learned that when you’re asked a question and you don’t know the answer, the best response is not “I don’t know” but “I’ll find out.”

In that vein, many years ago I watched an excellent lawyer giving an oral argument in the Supreme Court of Virginia. One of the justices asked him on what page of a sizeable appendix the court could find Fact X. The lawyer replied, with candor, “Your Honor, I don’t know. But I assure you, it’s in there.”

The first half of this answer was absolutely correct. If you don’t know, don’t try to wing it. The reasons ought to be obvious. But the second half was incorrect. In that situation, he would have been better advised to say something like this:

“Your Honor, standing here today, I don’t recall. But I’m confident that it’s there, so if you like, I’ll deliver to the Clerk within 24 hours a letter identifying the page where you may find it.”

Think about it: The first approach tells the court, “I don’t know; YOU go find it.” This is not the way to win friends and influence judges. The second way tells the court that the advocate will do the work and get a prompt answer. In response to this, the jurist asking the question will foreseeably respond in one of two ways. (1) “That’s okay; it’s not that crucial.” Now the advocate is off the hook. (2) “Yes, please; I’d like to see that.” Now the advocate can go back to his or her office, look up the reference, and submit the correct answer in writing.

Knowing how to say, “I don’t know” is one of the more important skills in oral advocacy.

The value of under-preparing

Despite my advice last week about avoiding potential ambiguities, I deliberately phrased that header in a misleading way. It got your attention, right? My true meaning here is not that you should under-prepare for the experience of oral argument. Every good oral advocate prepares meticulously.

What I mean is that you should prepare a speech that’s shorter than the time allotted. If you have 15 minutes, don’t make the mistake of preparing and polishing a 15-minute oration. Most likely you’ll get questions, and for every minute you spend in answering those questions, there goes a minute of your prepared remarks, winging its way out the window.

This is a matter of personal preference, but I usually prepare a speech that’s somewhere between 50% and 70% of the allotted time. (That’s an estimate, because I never time my speeches in advance, but you may find doing that useful.) That allows me the luxury of answering questions and still finishing my “speech.” It also allows me to sit down with time remaining, if I get to the end of my presentation early. Jurists greatly appreciate when an advocate does that.

If you do plan to use 70% or more of your time in your prepared remarks, avoid the fatal error of putting your killer argument at the very end. That might give it more persuasive punch, if you get there. But if the court peppers you with questions early on, you risk not getting to that issue before you’re staring at a lethal red light.

One last point: In oral argument in appeals involving multiple issues, you’re usually best advised to start with your strongest argument. You want to win minds early, to get the court mentally leaning in your direction. Note that this advice is different with written advocacy; modern appellate-writing theory generally counsels in favor of putting your most interesting argument first in your brief. But once you get to the lectern, grab your deadliest weapon first.