Advocacy: How to Persuade Judge and Jury
by Gerald Lebovits
Editor’s Note: Gerald Lebovits is a judge of the New York City Civil Court, Housing Part, in Manhattan and an adjunct professor of law at St. John’s University School of Law, in Queens, New York, where he teaches trial and appellate advocacy.
Trial lawyers’ main goal is to persuade the jury or, in a bench trial, the judge to rule in their clients’ favor. To do so, trial lawyers need more than logical arguments. Persuasion is more than convincing. Persuasion uses both emotion and appeal to reason. Impressions are important. This is especially true for jury trials. Jurors make decisions based on perceptions and impressions, not only on logic.
Aristotle defined persuasion in the three books that make up his Treatise on Rhetoric by summarizing persuasion in four principles. He explained that speakers who want to persuade should get the audience on their side, maximize their strong points and minimize their weaknesses, refresh the memory of their audience frequently, and impart emotion. He grounded his principles on credibility (ethos), the audience’s emotions and psychology (pathos), and patterns of reasoning (logos), all while emphasizing style (word choice, metaphor, and sentence structure) and arrangement (organization). Aristotle’s principles apply to modern-day trial advocacy. He even enunciated the distinction between jury and judge trials: the required level of emotion.
Trial persuasion techniques and styles vary on whether lawyers present their case to a judge or a judge and a jury, but the goal stays the same: to win. In front of a judge, trial lawyers persuade by using effective legal analysis supported by ample legal research. Trial lawyers must restrain emotions and remain dispassionate. In front of a jury, persuasion is different. Jurors are unfamiliar with legal terms and concepts; lawyers should alter their strategy accordingly. They must adapt their oral presentation using appropriate emotions so that jurors can empathize and understand the case and the client.
The basis of persuasion is the same in front of a judge or a jury. Lawyers must gain the attention of their audience, hold their interest, make it impossible for them not to understand their arguments, and make it easy for the audience to agree. Every trial, every jury, and every judge is different. Trial lawyers cannot expect to use the same formula for every case. Persuasion requires preparation and knowledge, not only of the case, but more importantly of the audience. Lawyers must appeal to the audience by identifying their beliefs, personality, and values.
Most important, trial lawyers must convince their audience that they are sincere. They must sincerely believe in their case and effectively project that sincerity to their audience. Otherwise, their audience might not consider them credible. Credibility is one thing lawyers cannot afford to lose. Audiences, juries and judges included, will be convinced only if they believe the speaker.
Here are fifteen pointers to guide lawyers in persuading judges and juries that their arguments should prevail.
(1) Know your audience. To persuade, lawyers must appeal to their audience. They must know whom they are trying to convince. In a jury trial, lawyers should establish juror profiles during jury selection to identify individuals likely to render a verdict in their client’s favor. After establishing the profiles, they should collect information on the prospective jurors to see whether they match the right profile. Good trial lawyers modify their strategy according to the jurors. They should consider juror’s age, gender, and occupation to know what will appeal to them and what will offend them. Trial lawyers must relate to the jurors. They need to put themselves into the jurors’ shoes to consider what the jurors will want to hear. Jurors often make decisions based on feelings and then look for evidence to support that emotional decision. Effective trial lawyers re-learn to think like real people to anticipate questions that will be important to jurors. They gain their attention, hold their interest, and make it easy for them to agree with their case. For trials in front of a judge, lawyers should start by getting to know the judge. They should ask their colleagues for advice on what that judge likes or dislikes so they can structure their presentation to appeal to the judge. Emotional presentations move judges less than jurors. Before a judge, lawyers should stick to a dispassionate approach while talking about passionate issues. Trial lawyers should also become familiar with and respect the court’s rules. They do not want to lose on a technicality.
(2) Give a strong opening statement. The opening statement should be the strongest part of the trial lawyers’ presentation. Trial lawyers should try to make the opening so strong that their adversary can never recover. The opening statement is important: It is the first opportunity, after the voir dire, for trial lawyers to explain their case. Jurors and judges are the most attentive then. Trial lawyers should seize the opportunity to summarize the case in a compelling way. They should not start their opening statement with a bold adversarial statement. Making bold adversarial statements at this early stage might give the impression that the lawyer is overly aggressive. They should not make arguments during opening statements. Arguments do not persuade at this early stage and, in any event, trial procedure forbids hem. Stating the facts creates far more-effective and memorable mental pictures. An effective opening statement should last between 5 and 30 minutes. If shorter, important facts and themes will be missing. If longer, trial lawyers risk losing the jurors’ attention and overwhelming them with details. The opening statement is the opportunity for trial lawyers to tell their story. They should enjoy it. It is the time to steal their adversary’s thunder.
(3) Have a theme. Themes are an essential part of trial persuasion. Themes summarize what the case is about. Themes are crucial in jury trials; jurors can get lost sorting through complicated information without a theme. To project a memorable image about the case, effective trial lawyers know to choose simple, familiar words and phrases for their themes. Lawyers should emphasize and deemphasize their arguments and facts to fit their themes. Themes should be announced in the opening statement and repeated throughout the trial. The best themes appeal to jurors’ common sense, experience, and fairness. They are short, easy to understand, hard to forget, and encompass all phases of the case. They serve as the moral foundation of the case. Here are some examples of good themes: life, liberty, no fury like a woman scorned, and actions speak louder than words. Trial lawyers should also know the other side’s theme so that they can contradict it. Theme selection is important in a trial. If chosen wisely, the jurors will adopt the theme and use it in deliberations to convince others that one side’s arguments should prevail. Lawyers should never use more than two or three themes. More will make the theme unmemorable and unimpressive.
(4) Show; do not tell. Effective trial lawyers do not speak in a conclusory way, but rather in a convincing manner. They do not impose their beliefs. They offer concrete, vivid details. They lead their audience to their conclusions by telling them their story of the case and then letting them decide on their own. They do not assume that judges or jurors will agree with their point; they make sure their argument is stated clearly. The best trial lawyers act like teachers, not preachers or advocates. They tell stories. Juries process facts by storytelling. Storytelling makes ideas stick. In showing, lawyers should establish clean story lines and leave out needless details, places, dates, and history. Specific rather than vague or general words increase the impact of the ideas. Before the trial, lawyers should create a storyboard with important facts in chronological order and themes to tell the story during trial. Action is critical to a good story. This is why trial lawyers should focus on the people, not on the problem. They should emphasize the events but not the legal issues. Jurors will not base their decisions upon laws and previous decisions. They will side with the arguments that affect their sense of justice.
(5) Know the case. Good trial lawyers are always prepared. They never take a case for granted. They have a strategy. They find witnesses and exhibits to support their version of the disputed facts and prepare them efficiently and credibly. They know which of their own arguments are the strongest and the weakest. They play up strong arguments and minimize weaker ones. They do not skip over their weaker arguments. They address them and make them stronger by giving good explanations for points that will comprise the other side’s strongest arguments. Not addressing weaker points risks letting adversaries argue that they wanted to hide the problem. Effective trial lawyers know not only every aspect of their case, but also the other sides’ arguments. They know what their adversary will argue and are prepared to refute their arguments. By refuting the other side’s arguments, lawyers show that they are right because they are right, not only because the other side is wrong. Preparation is the key to persuasion. Unprepared lawyers will fail to connect with their audience. They show they do not care about their work. If the audience senses that the lawyer does not care, the audience will not care either, or the audience will believe that even the lawyer thought that the case was a loser.
(6) Be focused. Being focused is an important persuasive skill for trial lawyers. Focus means knowing what you want and taking action to get it. Trial lawyers need to have their head in the game; it is not the time to think about the weekend. They must be quick on their feet. They should take notes about what is happening in the courtroom so they can address them later on, while examining witnesses or during summation. Being focused is also essential to assuring that the jurors or the judge will understand the case. Lawyers, who present their arguments illogically, jumping from issue to issue, will lose their audience. The audience will be confused about their theory of the case and might side with the adversary. Trial lawyers should make it easy for the judge or the jury — no case should be presented as a mystery novel. They should establish a speaking outline to avoid unnecessary repetition and to present arguments cogently and efficiently. If the lawyers’ minds are clear and focused, they will know what they want to get, and so will the jurors and the judge. Having focus also means thinking about the trial before it begins — thought-out conclusions designed under the appropriate burden of proof to satisfy or disprove the elements of the cause of action, defense, affirmative defense, or counterclaim and also to correspond both to the forthcoming summation and judge’s jury charge.
(7) Be eloquent. Trial lawyers should strive for eloquence. Eloquent lawyers persuade by captivating their audience from the start. They know that trial advocacy is all about communication and, thus, choose their words carefully. They vary their tone and body language. They make their presentation interesting by being clear and effective. They use different communication techniques like rhetorical questions and analogies to make their presentation more interesting and powerful. They repeat statements to emphasize important information to ensure that their audience will remember. Eloquent lawyers are not afraid of silence. Silence can be persuasive; it lets the audience process the idea. Persuasive lawyers do not look at notes too often or read them. Doing so separates them from the jurors and the judge. How can lawyers be persuasive if they are riveted to their notes or, if they must look at their notes, to say why their client is innocent? They should use only an outline of their presentation, and only just in case they need to remember what to say next.
(8) Be organized. Trial lawyers must be organized. Being organized will help trial lawyers when they need to think and react quickly — for instance, while questioning witnesses. Trial lawyers should prepare a trial notebook to outline what they are going to say. The notebook should include documents needed during the presentation. They should know where every document or piece of evidence is at all times; they do not want to lose an argument due to a missing paper. Lawyers should also always keep their counsel table clutter-free. Being organized favors persuasion: It shows that lawyers know what they are doing and that they are prepared. Jurors will have confidence in them.
(9) Be clear. Trial advocacy requires clarity. Lawyers cannot persuade if they are misunderstood. Trial lawyers should use plain language when presenting their case. They should also tell the story of the facts using concrete nouns and, better, active verbs and few, if any, adverbs and adjectives. They should avoid legalese and foreign languages. They should speak in everyday Joe six-pack English. They should use short sentences. It is pointless for lawyers to use complex language and complicated arguments in front of jurors unlikely to understand their point. Lawyers should aim to reducing their idea to their clearest form: What may seem clear to lawyers who have been working on a case for years might be unclear to a jury. For trials in front of a judge, the same principles apply. Judges are busy professionals who multi-task and hear different cases. Lawyers should make it easy for them to understand their arguments and difficult to rule against them. Being clear is crucial to persuasion. Otherwise, jurors and judges might not understand where lawyers stand on facts and issues.
(10) Be concise. The best trial lawyers know that their presentation of the case need be not only clear but also short and sweet. They work on every part of the trial: motions in limine, jury selection, opening statements, witness examinations, evidence introduction and exclusion, jury-charge requests, summations, and exceptions to the jury charge. They know the time they have before a jury or judge is limited. They learn to boil down arguments to the crucial facts only. They rehearse their oral presentation to ensure that every issue is stated with maximum concision and clarity to avoid losing the jurors’ attention. They do not try to fit every argument into their presentation; they select the best ones. They do not rush; they take their time to make every word count. Concision helps audiences better understand lawyers’ arguments and demonstrates the lawyer’s dedication to the case. An excessively long or boring factual statement encourages audience skepticism
(11) Be presentable. Because persuasion is partly based on impressions and perceptions, trial lawyers should never neglect how they present themselves. They must dress appropriately: neatly and professionally. A messy appearance will distract the audience from the lawyers message. They should also be aware of their body language. Body language is not something lawyers can fake. Audiences will perceive dishonest body language and disbelieve what they hear. Lawyers should avoid closed posture, such as crossed arms, and favor open posture and gestures that communicate sincerity and openness. They should also make eye contact with their audience to establish a connection and to demonstrate honesty. Trial lawyers should also try to sit with the fewest people at the counsel table, or preferably alone. Lawyers need to put themselves in the place of jurors, who will see David versus Goliath if one side has several lawyers at their table and the other side has only one. Jurors are more sympathetic toward the poor lawyer alone against a larger group of greedy lawyers. Trial lawyers should also avoid drinking water at the counsel table in front of the jury. Jurors do not have water during the trial. To demonstrate that they are on the same level, lawyers should not drink either.
(12) Be trustworthy. To project sincerity and be credible in the jury’s eyes, trial lawyers must be honorable. They cannot hide anything. They should request sidebars only when necessary; jurors feel excluded by this procedure. Lawyers should also make understandable objections so that jurors or the judge do not conclude they are trying to conceal information. Jurors or judges will not rule in the favor of lawyers perceived as deceitful and dishonest. Trial lawyers should never exaggerate, overstate, or generalize. By understating, lawyers emphasize content, not style, to make their arguments powerful. Lawyers should never use sneaky techniques to hide important facts: honesty is the only policy. They win by stating the facts accurately and then by providing strong explanations and evidence to prove their conclusions. Trial lawyers should also stick to the record and provide accurate and precise references. Doing so gives credibility to lawyers and shows they worked on the case. They should never over promise and risk not fulfilling their promises. Lawyers should be careful in their opening statement when they tell jurors what to expect.
(13) Be reasonable. The best trial lawyers know that the way to win in the long run is to be reasonable. They use good judgment and common sense. They portray the situation accurately and always present valid arguments. They object only for a good reason. Reasonable lawyers are logical and fair when arguing their position and asking for relief. They know whether and when to concede and when to stand their ground. Conceding when appropriate allows lawyers to concentrate their efforts on important arguments while appearing reasonable. Being reasonable also means that lawyers should not prolong trials. Reasonable lawyers are pleasant to work with; jurors and judges appreciate them and will be more likely to cooperate with them. Opposing counsel might even be more likely to concede or settle on favorable terms.
(14) Be yourself. Trial persuasion requires lawyers to be engaging to get their audience interested in what they are saying. Trial lawyers should be original when presenting their case to get the audience’s attention. No one style is suitable to all trial lawyers. Being original does not mean that lawyers should try to use trial skills or strategies with which they are uncomfortable. Lawyers should be themselves, without pretense. Jurors can tell when lawyers are uncomfortable or nervous. Trial lawyers should also be able to manage their nerves. Some nervousness can be useful, however; it proves that lawyers are aware of the seriousness of the matter to their client and their resulting responsibilities and that any case can be won or lost. Lawyers should not take themselves too seriously: Most jurors already have a preconceived idea of egotistical lawyers. Trial lawyers can use humor, but they should be careful not to offend. Jokes should never be memorized and rehearsed; if humor is used, it should be spontaneous. Trial lawyers should also practice caution with theatrics. They can use it sparingly to make a point or to get attention, but overuse will turn the trial into a comedy routine.
(15) Be professional. Trial lawyers should always act professionally. Professionalism persuades in two ways. First, lawyers will be more likely to win points with judges and jurors if they are charming, civil, and likeable. Second, acting professionally helps lawyers maintain the credibility necessary to persuade audiences. Being professional as a trial lawyer means consistently respecting the judge, the jury, and the court personnel. Professionals are never rude. They are able to defend their client’s interests efficiently without forgetting their good manners. They never lie or mislead. Jurors and judges see everything that happens in the courtroom. They see how lawyers act with one another and with court personnel. If the audience sees lawyers being respected and acting professionally, they are more likely to listen and trust them. Determination and perseverance for a cause are also important qualities of trial lawyers. Winning a case is worth it only if the lawyer behaves ethically and maintains integrity. Professionals know when to let something go.
Conclusion. Trial advocacy is complex. Cases are lost and won on atmosphere. Lawyers can only try their best to control it in their favor. They should be themselves and think of a trial as a conversation and not a speech. The key to persuasion is to believe in what one is doing — and then to make it easy for the audience to rule for you and to make the audience want to rule for you. If lawyers are sincere in their presentation, the judges and jurors will want to rule in their favor.
Aristotle defined persuasion in the three books that make up his Treatise on Rhetoric by summarizing persuasion in four principles. He explained that speakers who want to persuade should get the audience on their side, maximize their strong points and minimize their weaknesses, refresh the memory of their audience frequently, and impart emotion. He grounded his principles on credibility (ethos), the audience’s emotions and psychology (pathos), and patterns of reasoning (logos), all while emphasizing style (word choice, metaphor, and sentence structure) and arrangement (organization). Aristotle’s principles apply to modern-day trial advocacy. He even enunciated the distinction between jury and judge trials: the required level of emotion.
Trial persuasion techniques and styles vary on whether lawyers present their case to a judge or a judge and a jury, but the goal stays the same: to win. In front of a judge, trial lawyers persuade by using effective legal analysis supported by ample legal research. Trial lawyers must restrain emotions and remain dispassionate. In front of a jury, persuasion is different. Jurors are unfamiliar with legal terms and concepts; lawyers should alter their strategy accordingly. They must adapt their oral presentation using appropriate emotions so that jurors can empathize and understand the case and the client.
The basis of persuasion is the same in front of a judge or a jury. Lawyers must gain the attention of their audience, hold their interest, make it impossible for them not to understand their arguments, and make it easy for the audience to agree. Every trial, every jury, and every judge is different. Trial lawyers cannot expect to use the same formula for every case. Persuasion requires preparation and knowledge, not only of the case, but more importantly of the audience. Lawyers must appeal to the audience by identifying their beliefs, personality, and values.
Most important, trial lawyers must convince their audience that they are sincere. They must sincerely believe in their case and effectively project that sincerity to their audience. Otherwise, their audience might not consider them credible. Credibility is one thing lawyers cannot afford to lose. Audiences, juries and judges included, will be convinced only if they believe the speaker.
Here are fifteen pointers to guide lawyers in persuading judges and juries that their arguments should prevail.
(1) Know your audience. To persuade, lawyers must appeal to their audience. They must know whom they are trying to convince. In a jury trial, lawyers should establish juror profiles during jury selection to identify individuals likely to render a verdict in their client’s favor. After establishing the profiles, they should collect information on the prospective jurors to see whether they match the right profile. Good trial lawyers modify their strategy according to the jurors. They should consider juror’s age, gender, and occupation to know what will appeal to them and what will offend them. Trial lawyers must relate to the jurors. They need to put themselves into the jurors’ shoes to consider what the jurors will want to hear. Jurors often make decisions based on feelings and then look for evidence to support that emotional decision. Effective trial lawyers re-learn to think like real people to anticipate questions that will be important to jurors. They gain their attention, hold their interest, and make it easy for them to agree with their case. For trials in front of a judge, lawyers should start by getting to know the judge. They should ask their colleagues for advice on what that judge likes or dislikes so they can structure their presentation to appeal to the judge. Emotional presentations move judges less than jurors. Before a judge, lawyers should stick to a dispassionate approach while talking about passionate issues. Trial lawyers should also become familiar with and respect the court’s rules. They do not want to lose on a technicality.
(2) Give a strong opening statement. The opening statement should be the strongest part of the trial lawyers’ presentation. Trial lawyers should try to make the opening so strong that their adversary can never recover. The opening statement is important: It is the first opportunity, after the voir dire, for trial lawyers to explain their case. Jurors and judges are the most attentive then. Trial lawyers should seize the opportunity to summarize the case in a compelling way. They should not start their opening statement with a bold adversarial statement. Making bold adversarial statements at this early stage might give the impression that the lawyer is overly aggressive. They should not make arguments during opening statements. Arguments do not persuade at this early stage and, in any event, trial procedure forbids hem. Stating the facts creates far more-effective and memorable mental pictures. An effective opening statement should last between 5 and 30 minutes. If shorter, important facts and themes will be missing. If longer, trial lawyers risk losing the jurors’ attention and overwhelming them with details. The opening statement is the opportunity for trial lawyers to tell their story. They should enjoy it. It is the time to steal their adversary’s thunder.
(3) Have a theme. Themes are an essential part of trial persuasion. Themes summarize what the case is about. Themes are crucial in jury trials; jurors can get lost sorting through complicated information without a theme. To project a memorable image about the case, effective trial lawyers know to choose simple, familiar words and phrases for their themes. Lawyers should emphasize and deemphasize their arguments and facts to fit their themes. Themes should be announced in the opening statement and repeated throughout the trial. The best themes appeal to jurors’ common sense, experience, and fairness. They are short, easy to understand, hard to forget, and encompass all phases of the case. They serve as the moral foundation of the case. Here are some examples of good themes: life, liberty, no fury like a woman scorned, and actions speak louder than words. Trial lawyers should also know the other side’s theme so that they can contradict it. Theme selection is important in a trial. If chosen wisely, the jurors will adopt the theme and use it in deliberations to convince others that one side’s arguments should prevail. Lawyers should never use more than two or three themes. More will make the theme unmemorable and unimpressive.
(4) Show; do not tell. Effective trial lawyers do not speak in a conclusory way, but rather in a convincing manner. They do not impose their beliefs. They offer concrete, vivid details. They lead their audience to their conclusions by telling them their story of the case and then letting them decide on their own. They do not assume that judges or jurors will agree with their point; they make sure their argument is stated clearly. The best trial lawyers act like teachers, not preachers or advocates. They tell stories. Juries process facts by storytelling. Storytelling makes ideas stick. In showing, lawyers should establish clean story lines and leave out needless details, places, dates, and history. Specific rather than vague or general words increase the impact of the ideas. Before the trial, lawyers should create a storyboard with important facts in chronological order and themes to tell the story during trial. Action is critical to a good story. This is why trial lawyers should focus on the people, not on the problem. They should emphasize the events but not the legal issues. Jurors will not base their decisions upon laws and previous decisions. They will side with the arguments that affect their sense of justice.
(5) Know the case. Good trial lawyers are always prepared. They never take a case for granted. They have a strategy. They find witnesses and exhibits to support their version of the disputed facts and prepare them efficiently and credibly. They know which of their own arguments are the strongest and the weakest. They play up strong arguments and minimize weaker ones. They do not skip over their weaker arguments. They address them and make them stronger by giving good explanations for points that will comprise the other side’s strongest arguments. Not addressing weaker points risks letting adversaries argue that they wanted to hide the problem. Effective trial lawyers know not only every aspect of their case, but also the other sides’ arguments. They know what their adversary will argue and are prepared to refute their arguments. By refuting the other side’s arguments, lawyers show that they are right because they are right, not only because the other side is wrong. Preparation is the key to persuasion. Unprepared lawyers will fail to connect with their audience. They show they do not care about their work. If the audience senses that the lawyer does not care, the audience will not care either, or the audience will believe that even the lawyer thought that the case was a loser.
(6) Be focused. Being focused is an important persuasive skill for trial lawyers. Focus means knowing what you want and taking action to get it. Trial lawyers need to have their head in the game; it is not the time to think about the weekend. They must be quick on their feet. They should take notes about what is happening in the courtroom so they can address them later on, while examining witnesses or during summation. Being focused is also essential to assuring that the jurors or the judge will understand the case. Lawyers, who present their arguments illogically, jumping from issue to issue, will lose their audience. The audience will be confused about their theory of the case and might side with the adversary. Trial lawyers should make it easy for the judge or the jury — no case should be presented as a mystery novel. They should establish a speaking outline to avoid unnecessary repetition and to present arguments cogently and efficiently. If the lawyers’ minds are clear and focused, they will know what they want to get, and so will the jurors and the judge. Having focus also means thinking about the trial before it begins — thought-out conclusions designed under the appropriate burden of proof to satisfy or disprove the elements of the cause of action, defense, affirmative defense, or counterclaim and also to correspond both to the forthcoming summation and judge’s jury charge.
(7) Be eloquent. Trial lawyers should strive for eloquence. Eloquent lawyers persuade by captivating their audience from the start. They know that trial advocacy is all about communication and, thus, choose their words carefully. They vary their tone and body language. They make their presentation interesting by being clear and effective. They use different communication techniques like rhetorical questions and analogies to make their presentation more interesting and powerful. They repeat statements to emphasize important information to ensure that their audience will remember. Eloquent lawyers are not afraid of silence. Silence can be persuasive; it lets the audience process the idea. Persuasive lawyers do not look at notes too often or read them. Doing so separates them from the jurors and the judge. How can lawyers be persuasive if they are riveted to their notes or, if they must look at their notes, to say why their client is innocent? They should use only an outline of their presentation, and only just in case they need to remember what to say next.
(8) Be organized. Trial lawyers must be organized. Being organized will help trial lawyers when they need to think and react quickly — for instance, while questioning witnesses. Trial lawyers should prepare a trial notebook to outline what they are going to say. The notebook should include documents needed during the presentation. They should know where every document or piece of evidence is at all times; they do not want to lose an argument due to a missing paper. Lawyers should also always keep their counsel table clutter-free. Being organized favors persuasion: It shows that lawyers know what they are doing and that they are prepared. Jurors will have confidence in them.
(9) Be clear. Trial advocacy requires clarity. Lawyers cannot persuade if they are misunderstood. Trial lawyers should use plain language when presenting their case. They should also tell the story of the facts using concrete nouns and, better, active verbs and few, if any, adverbs and adjectives. They should avoid legalese and foreign languages. They should speak in everyday Joe six-pack English. They should use short sentences. It is pointless for lawyers to use complex language and complicated arguments in front of jurors unlikely to understand their point. Lawyers should aim to reducing their idea to their clearest form: What may seem clear to lawyers who have been working on a case for years might be unclear to a jury. For trials in front of a judge, the same principles apply. Judges are busy professionals who multi-task and hear different cases. Lawyers should make it easy for them to understand their arguments and difficult to rule against them. Being clear is crucial to persuasion. Otherwise, jurors and judges might not understand where lawyers stand on facts and issues.
(10) Be concise. The best trial lawyers know that their presentation of the case need be not only clear but also short and sweet. They work on every part of the trial: motions in limine, jury selection, opening statements, witness examinations, evidence introduction and exclusion, jury-charge requests, summations, and exceptions to the jury charge. They know the time they have before a jury or judge is limited. They learn to boil down arguments to the crucial facts only. They rehearse their oral presentation to ensure that every issue is stated with maximum concision and clarity to avoid losing the jurors’ attention. They do not try to fit every argument into their presentation; they select the best ones. They do not rush; they take their time to make every word count. Concision helps audiences better understand lawyers’ arguments and demonstrates the lawyer’s dedication to the case. An excessively long or boring factual statement encourages audience skepticism
(11) Be presentable. Because persuasion is partly based on impressions and perceptions, trial lawyers should never neglect how they present themselves. They must dress appropriately: neatly and professionally. A messy appearance will distract the audience from the lawyers message. They should also be aware of their body language. Body language is not something lawyers can fake. Audiences will perceive dishonest body language and disbelieve what they hear. Lawyers should avoid closed posture, such as crossed arms, and favor open posture and gestures that communicate sincerity and openness. They should also make eye contact with their audience to establish a connection and to demonstrate honesty. Trial lawyers should also try to sit with the fewest people at the counsel table, or preferably alone. Lawyers need to put themselves in the place of jurors, who will see David versus Goliath if one side has several lawyers at their table and the other side has only one. Jurors are more sympathetic toward the poor lawyer alone against a larger group of greedy lawyers. Trial lawyers should also avoid drinking water at the counsel table in front of the jury. Jurors do not have water during the trial. To demonstrate that they are on the same level, lawyers should not drink either.
(12) Be trustworthy. To project sincerity and be credible in the jury’s eyes, trial lawyers must be honorable. They cannot hide anything. They should request sidebars only when necessary; jurors feel excluded by this procedure. Lawyers should also make understandable objections so that jurors or the judge do not conclude they are trying to conceal information. Jurors or judges will not rule in the favor of lawyers perceived as deceitful and dishonest. Trial lawyers should never exaggerate, overstate, or generalize. By understating, lawyers emphasize content, not style, to make their arguments powerful. Lawyers should never use sneaky techniques to hide important facts: honesty is the only policy. They win by stating the facts accurately and then by providing strong explanations and evidence to prove their conclusions. Trial lawyers should also stick to the record and provide accurate and precise references. Doing so gives credibility to lawyers and shows they worked on the case. They should never over promise and risk not fulfilling their promises. Lawyers should be careful in their opening statement when they tell jurors what to expect.
(13) Be reasonable. The best trial lawyers know that the way to win in the long run is to be reasonable. They use good judgment and common sense. They portray the situation accurately and always present valid arguments. They object only for a good reason. Reasonable lawyers are logical and fair when arguing their position and asking for relief. They know whether and when to concede and when to stand their ground. Conceding when appropriate allows lawyers to concentrate their efforts on important arguments while appearing reasonable. Being reasonable also means that lawyers should not prolong trials. Reasonable lawyers are pleasant to work with; jurors and judges appreciate them and will be more likely to cooperate with them. Opposing counsel might even be more likely to concede or settle on favorable terms.
(14) Be yourself. Trial persuasion requires lawyers to be engaging to get their audience interested in what they are saying. Trial lawyers should be original when presenting their case to get the audience’s attention. No one style is suitable to all trial lawyers. Being original does not mean that lawyers should try to use trial skills or strategies with which they are uncomfortable. Lawyers should be themselves, without pretense. Jurors can tell when lawyers are uncomfortable or nervous. Trial lawyers should also be able to manage their nerves. Some nervousness can be useful, however; it proves that lawyers are aware of the seriousness of the matter to their client and their resulting responsibilities and that any case can be won or lost. Lawyers should not take themselves too seriously: Most jurors already have a preconceived idea of egotistical lawyers. Trial lawyers can use humor, but they should be careful not to offend. Jokes should never be memorized and rehearsed; if humor is used, it should be spontaneous. Trial lawyers should also practice caution with theatrics. They can use it sparingly to make a point or to get attention, but overuse will turn the trial into a comedy routine.
(15) Be professional. Trial lawyers should always act professionally. Professionalism persuades in two ways. First, lawyers will be more likely to win points with judges and jurors if they are charming, civil, and likeable. Second, acting professionally helps lawyers maintain the credibility necessary to persuade audiences. Being professional as a trial lawyer means consistently respecting the judge, the jury, and the court personnel. Professionals are never rude. They are able to defend their client’s interests efficiently without forgetting their good manners. They never lie or mislead. Jurors and judges see everything that happens in the courtroom. They see how lawyers act with one another and with court personnel. If the audience sees lawyers being respected and acting professionally, they are more likely to listen and trust them. Determination and perseverance for a cause are also important qualities of trial lawyers. Winning a case is worth it only if the lawyer behaves ethically and maintains integrity. Professionals know when to let something go.
Conclusion. Trial advocacy is complex. Cases are lost and won on atmosphere. Lawyers can only try their best to control it in their favor. They should be themselves and think of a trial as a conversation and not a speech. The key to persuasion is to believe in what one is doing — and then to make it easy for the audience to rule for you and to make the audience want to rule for you. If lawyers are sincere in their presentation, the judges and jurors will want to rule in their favor.