Review: Brian K. Johnson and Marsha Hunter, The Articulate Advocate: New Techniques of Persuasion for Trial Lawyers
The premise of The Articulate Advocate is that trying a case is so terrifying that adrenaline takes over the hapless lawyer before he or she can think, and that the scary experience of explaining your case to a jury is such an unnatural and overwhelming experience for lawyers that they must work at mastering their negative physical “flight or flight” response long ahead of trial to such an extent that their physical nervousness is no longer an issue and their mind can function sufficiently well for them to tell the story to the jury. “Understanding the function of adrenaline is vital to [the trial] process, as few things have greater impact on an attorney’s performance in court,” they advise. Thus, their premise is that we should learn how to breathe, stand, move, and otherwise control our bodies, so that – like an athlete shooting free throws – the physical process becomes automatic and the adrenaline becomes tamed. Then, our minds will be free to do the work of convincing a jury.
It’s an in interesting premise, and the Book is helpful for the unwilling lawyer who is compelled to try a case. But, in our opinion, the book begins from the wrong place. It assumes that trying a case is painful, and that attorneys presenting their case feel much like middle schoolers being forced to give a book report. Anyone can do anything they are willing to learn to do properly, but my concern is that if a would-be trial lawyer is so nervous that they cannot control their nerves in court, perhaps they should be transactional lawyers or accountants. This book cannot assist them.
To be clear, trials still make me nervous, and I have tried a number of them. And, as the authors suggest, like anyone, I feel the adrenaline rush, get the shakes, and feel more stressed when I am starting a trial, like anyone does. But this book proposes a wholly psyiological solution: I should plant my feet a certain distance apart, I should practice deep breathing exercises, I should move a certain way. The entire time the book conveys this advice, it also counsels: Be yourself and be calm. It’s like telling someone all the ways that they will fail, then wishing them luck. If I focused as much on the advice this book provides about what to do with my body as it suggests, I would not free my mind to focus on trial. I would become so preoccupied with my own nervousness that I couldn’t speak.
People who should be in court are confident people. You don’t become confident by breathing correctly or thinking about your hands. You become confident by knowing your case inside and out, and focusing so much on telling the jury what you have to tell them that you forget about everything else, and the distractions go away. There are no physical tricks that can make us any good at trying cases. The only thing that will make you feel calm in front of a jury is complete mastery of the facts and law in your case, and the absolute knowledge that your position in the trial is right. If you prepare towards that, your body will not let you down. I’m an overweight, neurotic, overly-stressed lawyer. The only “physical” thing I have every had to tell myself in court is to remind myself to speak slowly enough that I can think about what I am saying. My trick for that: I imagine (as is the case) that somebody is typing everything I say, and I try to picture the transcript he or she is making. If I can speak slowly enough to allow the court reporter to get it down, then my body and mind are moving at the right pace. I think books like this one contribute to the problem when they provide 150 pages of advice about how to hold your pen. If you focus on substance and preparation, the rest will follow. To suggest that you should handle your body like an athlete to succeed in court is to overcomplicate things.
Being in court is like painting or playing an instrument in a rock band. The correct approach is to be super-focused but loose. It is not to overthink peripheral things, like your body. If you own your facts and law, take the case at your own pace, and don’t critique yourself while you are doing it, it will work well.
All of that said, the book suggests some important and helpful ideas. One is this: It is ok to pause and deliver your statements in the courtroom in a way that seems slow to you as you speak. When I was a young(er) lawyer, I read somewhere – I think in something Cicero wrote or said – that oratory is best done slowly and methodically. It allows the speaker to reflect and the audience to process. This book agrees with that.
Another, perhaps most useful point: Your body matters when you’re trying a case. Notwithstanding that I believe the authors oversell it and belabor the relationship between body and the courtroom presentation, you will certainly do better in court if you are not distracted by your body. I don’t think it is helpful to become preoccupied, as the authors do, with issues like how you walk as you speak. But I have learned that generally taking care of yourself between trials, so that you are in better physical condition when you try the case, yields an apparent benefit. As you know from reading my other posts, I have travelled from fit to fat over the course of my career. I expect to have a long trial coming up in federal court in September. I’m making a concerted effort to get in better shape for that, so that my body (fatigue, whatever) does not distract from my efforts during that several week marathon. But — I don’t expect to spend the trial worrying about my foot placement. I’ll be too focused on what I’m saying to do that.
WRT, Charlotte, June 28, 2017