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Bar News - September 18, 2009

Book Review: The Articulate Advocate: New Techniques of Persuasion for Trial Lawyers By Brian K. Johnson and Marsha Hunter (Crown King Books, Prescott, AZ, 2008)


Your opponent takes her seat. She has just delivered a succinct and eloquent opening statement, persuasively describing the evidence she promises to present to the jury. The judge presents the floor to you: "Counselor. You may begin when ready." The jurors’ attentive eyes (it’s early and they are still eager to learn about your case) immediately turn to you. You stand, clear your throat, acknowledge the court and opposing counsel, and greet the jury. All eyes in the room – including your client’s – are fixed on you.

What happens next? You launch into your opening statement. But even if you are well-prepared to try your case, it’s not that simple, is it? Almost anyone can find a way to muddle through a hearing, argument or trial. To be truly persuasive, that is, to be a successful advocate, you must be an "articulate advocate."

In under 200 pages, Brian K. Johnson and Marsha Hunter deliver a compelling argument for devoting some of your valuable time to developing the skills necessary to be articulate and persuasive in public speaking. Although the book is specifically targeted to trial lawyers, the methods described are applicable to most any public speaker.

As the back cover of The Articulate Advocate declares, while most trial advocacy books teach what to say and do in a courtroom, this book teaches how to say and do it. The authors are well-credentialed to do this. Brian Johnson has been a "courtroom communication consultant" for 30 years and is a recent National Institute for Trial Advocacy (NITA) award winner. Marsha Hunter also instructs attorneys on communication skills for NITA, the Department of Justice, and elite law firms. The Articulate Advocate consists of four chapters, subdivided into shorter topics. The first chapter discusses your body, how to control it, and how to utilize its full potential while speaking. The book provides specific advice on how to stand, your posture, your breathing, making eye contact, and even how to gesture effectively; interestingly, the authors encourage the use of disciplined and purposeful gesturing as a means of both channeling adrenaline’s nervous energy and as a communication tool that enhances comprehension.

In chapter two, concerning the brain, the authors conclude that "structured improvisation" is the best delivery technique at trial. They denounce memorization as too difficult and ultimately frustrated in the shifting sands of a courtroom, and reading as unpersuasive, in light of the divide it creates between the reader and the audience. Chapter three discusses your voice and how to train it to make your speech more persuasive.

Chapter four offers the most useful advice, providing specific guidance on techniques for practicing persuasive speech.

This book is probably best suited to relatively junior attorneys still developing a voice and courtroom presence. Several of the covered topics are obvious, or concern seemingly innate characteristics and mannerisms. For example, the book discusses the placement of one’s feet and hands, the bend in one’s knees, the mechanics of breathing, the proper alignment of the neck, head and spine, and the volume, pitch and tone of one’s voice. Although such topics may seem mundane, it cannot be denied that mastery over these fundamental aspects of one’s verbal delivery would enhance one’s articulation. Even a more seasoned attorney might re-evaluate some aspects of his or her delivery.

The Articulate Advocate also offers some less obvious, almost counter-intuitive observations, which make the reading more interesting and provide a new way of thinking about old problems of public speaking. For example, the book begins with an insightful discussion about adrenaline – the sworn enemy of many public speakers. As most lawyers are well aware, the high-stress situation instinctually triggers a fight or flight response that results in a release of adrenaline. In an actual life or death situation, adrenaline’s burst of energy is useful. In the context of public speaking, it can result in trembling limbs, shaking hands, a flutter in the stomach and a voice that shakes or cracks.

The authors explain that adrenaline can be put to good use, much the way successful athletes utilize adrenaline when "in-the-zone." One of the paradoxical effects of adrenaline is that it slows down one’s perception of time. During what the authors call an adrenaline time-warp, the brain processes information at an unusually high rate. The accelerated processing allows one to respond rapidly to a threat – think of the person who survives a near-death experience and recalls how time seemed to slow down.

To the untrained speaker, who perceives a second of silence as lasting a lifetime, this time-warp results in an excessively rapid pace of speech that frustrates the listener and leaves the speaker with very little time to think. Like an athlete "in the zone," who seems to operate on a plain above everyone else, the advocate who learns to slow down his/her speech and who is not fearful of brief interludes of silence, will enjoy a windfall of time – time that can be used to think ahead to the next argument or line of questioning. Although time moves slowly for the speaker, it moves at a regular pace for the judge and jury. Hence, the advocate’s pauses seem short and the ability to think on his/her feet is greatly enhanced.

In sum, while some of the topics discussed may seem elementary to some readers, The Articulate Advocate is an easy and interesting read that provides deeper insight into the art of oral advocacy. Given its brevity and low price tag, The Articulate Advocate is a worthwhile book for most any advocate.

Dan Deane is a litigation associate at Nixon Peabody’s Manchester office, practicing in the firms Financial Services and Securities Litigation Group. He represents local and national businesses in a broad array of complex litigation matters.

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