Oral Advocacy: Authenticity, Language and Professionalism

Steven Peskind breaks down the importance of authenticity, language, and professionalism in the courtroom including Gerry Spence, “eat the frog,” ethos, logos, pathos, don’t be a pretentious phony, play to your strengths, using your eyes, transition aids, scowling, Churchill, David Boies, use of voice, self-control, reacting to bad events in court, be courteous, wardrobe, gravitas, posture, visualize, readiness, early, have a plan, reasonableness, and reading the room.

Steven’s courtroom advocacy skills are unmatched; so much so that he is trusted by the National Institute of Trial Advocacy to teach its students, who are also lawyers, how to effectively try divorce cases. Thank you Steven for joining us from Chicago improving our firm’s oral advocacy. Our friendship means a great deal.

Chicago Attorney Steven Peskind is recognized as one of the top attorneys in the nation. Throughout his career, he has been trusted by politicians, judges, professionals, business owners, and business executives (as well as their spouses) to discreetly and professionally represent them in family law matters.

So, okay, we’re going to switch gears. I’m going to talk again about Gerry Spence. How about that? Another reference that you guys know nothing about. So Gerry Spence was this maverick lawyer back in the ’80s, and he would wear these fringe jackets, like buckskin fringe jackets and he’d wear them in court. And when I saw him try his case, he was wearing that with the fringes hanging down, but he was wearing a tie, he’d have a turtleneck, his usual ensemble. And I just saw that was the coolest thing in the world. And I went to my wife and I said, “I think I’m going to get a fringe jacket.” And she said, “Short Jewish guys don’t wear fringe jackets. Big cowboys in Wyoming can get away with that, but it’s not going to work for you.”

And she didn’t come out and say this to me, but her point was be yourself. You’re a Brooks Brothers guy. I’ve been a Brooks Brothers guy since high school. Whatever. You need to be yourself. You need to be authentic because what works for Gerry Spence is not the stupid fringes, but he’s authentic. He’s himself. And when we’re ourselves, people tend to like us more. They tend to listen to us a little more closely. They tend to respond to what we’re saying. When we are not being authentic, we look insincere. We look like we’re phonies. A lot of times insecure people, they overcompensate by trying to be macho, hyper aggressive lawyers in the courtroom. When you see those lawyers that are trying to intimidate and scare, you think of them as being seven years old.

They’re just bullies. They’re scared to death. That’s why they act how they do. Confident lawyers don’t act that way. People that are confident in their own skills and comfortable in their own skin, they don’t need to put on a show and act like that. So don’t let them get to you. I mean, there’s just a lot of assholes in our business. That’s just the way that is. But if you can reframe it again and not react to them and not let them get in your head like they’ve got some superpowers. They don’t. They’re just chickens. And that’s why they act that way.

So, when I talk about authenticity, what does that look like in a courtroom? Number one, vulnerability. Sometimes we make a mistake, sometimes we have a really bad fact or a bad circumstance that we just got to deal with. When you are vulnerable and you are transparent about that, you tend to make points with your court. And so that’s something that I think is really important, that you don’t necessarily try to gloss over things that shouldn’t be glossed over. Sometimes you just need to eat the frog and you just got to take your mumps for whatever it’s worth. Sometimes you can spin it. And I just wrote a blog post about a debate from 1984 before a lot of you guys were born and there was a debate between Ronald Reagan and Walter Mondale. And the journalist that was the moderator said to Ronald Reagan that John F. Kennedy during the Cuban Missile crisis, he was up for like three days straight.

Now he was getting speed from his doctor, but he was up for three days straight. And the implication to Reagan was that he was 73, you don’t have the horsepower to be able to sustain that. Why should the public reelect a guy that couldn’t handle that? And so that was a problem for Reagan. That was a real problem for his campaign. And he paused and he said, “I am not going to make my opponent’s youth and inexperience an issue in this campaign for political purposes.” So he sputtered all the way around. He won the debate and maybe the election because of that. So authentic people can do that. Self-deprecation is a remarkably powerful thing that sometimes you just kind of need to, “Aw shucks, yeah, you got me. Yeah, screwed up. Sorry.” Authentic people can do that. Inauthentic people, they never can do something like that. Okay? Being self-aware, being able to empathize with what’s happening in the room, being able to empathize with the judge. I’m sitting here watching this. The judge is having a crabby day. The judge is just being irritable over stuff the judge doesn’t generally get upset about.

Because I’m self-aware, I can be aware of others. And so maybe what I’m thinking to myself is maybe my motion needs to be set over. Maybe the timing of this thing isn’t good, and if it’s so time sensitive, maybe I need to condense my argument even more. Maybe I need to even try a little bit harder to relax the judge. Maybe this might be appropriate for a little bit of a joke about “Tough day, judge?” or whatever the case may be. Again, you need to know your judge. Some judges will be irritated with that. So beside being self-aware, another attribute of authenticity is truthfulness. You want to be the lawyer the judge can rely on. You are the one who tells the truth. You are the one, even when the facts are inconvenient, who tells the truth. You are the one that will be honest about authority that goes against you, and you’ll work hard to explain why it can be distinguished in your particular case.

There are three components to an effective argument, whatever that argument is. One is called ethos. It’s a Greek term. One is called logos, another Greek term, and the other is pathos. Okay? These are the three musketeers of rhetoric. And Aristotle developed these principles. Ethos is the credibility of the arguer, the character of the arguer. Logos, not logic, is the essential reasoning of the argument. It’s going to include certain assumptions that you’re going to build into it or generalizations. So it’s not like a syllogism, it’s not pure logic. And the third is pathos. I talked about that a little bit earlier. That is the beating heart of your argument. That is the emotional pull of your argument. That is what you are going to use hopefully to get the court to respond in an emotional way to your argument. So anyways, coming back to this, the truthful lawyer builds up their ethos.

It’s like a bank account. Every time you make a deposit, your bank account gets heavier and heftier. And the judge is going to be, in future cases, more inclined to listen to you as opposed to Mr. Smith, a lawyer that fudges the facts all the time. So this is not something, your ethos is not something that you build this particular day. It’s over the course of your careers. I see some lawyers that I almost feel sorry for them because they go to work for disreputable law firms early on because they just don’t know any better. And their ethos by association get devastated. They may never get that ethos back. By the way, all the judges at lunchtime talk together about lawyers, just like we all talk about the judges. Guess what they’re doing? They’re talking about us and they’re saying, “You know that he tells the truth, we can rely on you.”

They get that sort of thing. But you can only really do that if you’re authentic and you have confidence in yourself and you need to do that. And reliability, that’s another trait of authenticity. You are there to help the judge remember that you’re not there to win the case. Well, you’re there to win the case of course, but you’re there to help the judge to be reliable. The judge knows they can count on you. And I’m not saying be a kiss-ass, but I am saying if the judge needs a hand preparing a court order, be gracious and be glad to do it. And that’s common sense. So again, the bottom line is when you’re authentic, you’re not a pretentious pony. You are yourself and you are who you are. Again, I wish I was a 6’2” Wyoming cowboy that could wear a fringe, but that’s not who I am. And you guys are all who you are. Play to your strengths, be yourselves, and that will be the most effective way of doing it.

Another thing to think about, we talk about rhetoric, using our language to help persuade, but there’s another language that you can use to help persuade. That is an unspoken language, and it is called body language. And a couple of thoughts with regard to that: the single greatest tool in your work chest, as a trial lawyer, is your eyes. You always want to be making eye contact with the court. You always want to be making eye contact with the witness. You always want to use your eyes as a tool of advocacy. On direct examination, when you’re having a conversation with the witness and you’re looking at the witness, the witness is going to be more comfortable, the witness is going to be more forthcoming. The witness is going to be a better witness. When you are looking, staring down now on August 14th, 2017, what happened next? That’s artificial. That’s not going to work. So it’s the eyes that have that power.

On cross-examination, you are a lion tamer, and a lion tamer tames lions with his or her eyes. They’re staring at the witness. They’re not letting them get away with stuff. I remember I was trying a case of cross-examination made 10 years ago, and the witness wouldn’t look at me. Actually, we have sort of informal courts. I was actually going up trying to get the witness to look at me during cross-examination. Now some judges that would make them very crazy, but my judge was okay with it. And I think in part was a witness wasn’t allowing me to do my job.

So, another feature of using body language, and I don’t mean necessarily body language like when we talk with our hands, which is okay. If that’s who you are and you’re authentic and it’s not too distracting, talk with your hands. Nothing per se wrong with that. Another feature of body language is when you’re trying a case, you can use your body as a head note. So remember, our goal is to keep it interesting, break it up a little bit. Okay? So I’m doing a direct examination and I’m switching gears now. I’m going to transition. “So now we’re going to start talking a little bit about your business, Mr. Smith.” And you would move over to the side of the podium, and you ask a series of questions. It’s not a life raft. You can put touch in it, and you can walk around a little bit and you can ask some questions, and then you can come back to it and you can use it as a transition.

All right, well, thank you. Now we’re going to talk about blah, blah, blah. And you may go to the other side. And so how you use your body should be at least considered by you. And I don’t necessarily purely mean in an advocacy way, but also in terms of a presentation way. We have a judge in our county who is very sensitive to body language. I was in a pre-trial settlement conference, and the other attorney rolled her eyes after the judge said something and he saw it and lost his mind. So you need to think about that particularly. Are you guys still on Zoom? Yeah. Yeah.

I mean, it’s so prominent on Zoom. Lawyers are scowling. You don’t want to be scowling in Zoom court. You want to have a pleasant look on your face. If something’s upsetting you put your head down and pretend like you’re writing a note or actually write a note. So use your body as a vehicle to help tell your story. Okay? And we’re going to talk a little more about the optics of your presentation in a little bit, but it sort of feeds into the same subject matter. Besides Miles, does anybody know who Jack Benny is? No. Okay. Stephanie, do you know Jack Benny?

Okay. Jack Benny was like the Taylor Swift of comedy back in the ’30s, ’40s, and ’50s. And google him. Going to YouTube, you can watch a little snippet of him. He was interviewed on countless talk shows, had his own radio show and his own TV show. Anyways, he had this body language where all he had to do was do this and roll his eyes when somebody said something ironic or sardonic or goofy or whatever, and he’d just roll his eyes. And his audience was fricking on the floor hysterical. He owned the room. Just that little gesture just like that.

I was thinking to myself, with a recalcitrant witness, instead of my usual taking out my meat cleaver and just trying to chop their head off, maybe just a little eye roll at the judge, just subtly. Maybe that’s a better way of controlling an unruly witness. Again, I’m using my body now. I haven’t done it effectively yet. I’m sure I’ve probably tried it once in a while. But that is a way to use your body. Be creative with it. Think about it for yourselves, and watch Jack Benny. I love Jack Benny. John F. Kennedy. He had body language to punctuate points that he was making. And what JFK did, and Bill Clinton actually modeled himself after this, he made a fist with his thumb on top, and when he was punctuating, he would do this. So if you watch any of his speeches, when he was making a point, he would do this. And it was just like an exclamation mark. Body language. So watch all John F. Kennedy press conferences, by the way, and watch a master of eight questions. I mean, he was great at it.

Another topic that I want to talk a little bit about is your tone of presenting motions to a court. Okay? You are not rewarded for talking so that a judge needs a dictionary or a thesaurus to understand what you’re saying. That’s self-gratification. And I have a pretty good friend who has since retired, and he loved the sound of his voice, and he loved using these highfalutin words. He thought he was Oliver Wendell Holmes, who didn’t use words like that, by the way. But it was kind of awkward. It was awkward, certainly to me, and I believe the judges as well. And I read an article recently that when you’re trying to teach somebody something, you should assume, and we’re teaching a judge basically the facts and the laws, as we see them, you should assume that the person you’re teaching is a seventh grader. The initial reaction to that is, “Oh, that’s kind of patronizing. I mean, this is a judge who went to Harvard and blah, blah, blah, blah.”

And it’s not meant to be patronizing. It’s meant to be clear. So how would I talk to a seventh grader? Well, I wouldn’t talk to him like in baby talk, like I talk to my three-year-old grandson. Well, I don’t talk to him in baby talk either, but you get the point. You would use clear language. You would use shorter words. You would use readily accessible words. I mean, this is a seventh grader, not a PhD in the classics, so you would not be using terms of art, you would not be using legalisms. You would use plain language to try to convey whatever the message is. And so, I’m a big believer in keeping it simple, stupid. That is think how I would convey this to a seventh grader.

Think about what is the most direct way for me to communicate this argument so that it’s going to resonate with this particular listener, whoever it is. And in your mind, again, it might be the seventh grader. So, Winston Churchill was one of the great orators of all of history. He preferred Anglo-Saxon words as opposed to Latinate words. And he preferred older words and shorter words with his speeches. This is, again, one of the greatest orators and writers and communicators. And he saved the world with his language, but he was not using fancy words. So an example of that, and I’ve written about this before, is a word that is concrete that can be visualized. What is a brick? Okay, see it in your mind right now. You can see a brick really easily.

If I refer to it as a brick, my listener can visualize. What if I refer to it as a construction material that’s made out of clay, that’s red? It’s a lot of work for me to get there, and it’s not necessary for me to get there. So all this, I’m a lawyer and I’ve got to talk like a lawyer and blah, blah, blah. Don’t talk like a lawyer. Talk like somebody talking to a seventh grader. You ever hear a cop testify? Oh my God, they’re the worst. They’re so full of themselves in terms of their testimony. So I hope nobody’s married to a cop, but they’re not great witnesses.

More on this and Churchill. There was a lawyer and a politician in the United States in the 20th century by the name of Bourke Cockran, B-O-U-R-K-E, and Mr. Cockran was actually a coach to both Churchill and Franklin Roosevelt. And he coached them on being better oral advocates. And one of the things that he helped them both with is, how do I give a speech without reading the speech? How do you give an opening statement without reading the opening statement? Because it’s very hard, and it depends on how you prepare. I mean, some people are very good at winging it.

Some people are very good at working off of an outline. I am a storyteller. That’s my superpower. So I tell a story as a narrative as I’m writing it. That’s my opening statement. And so then I extrapolate from that, my opening statement, and I can’t just read it because my face would be down like this. I wouldn’t be connecting with the judge. It would be counterproductive. Churchill had the same problem as did Roosevelt, they didn’t have a lot of time. They were busy saving the world, so they couldn’t sit down and memorize a seven-page speech. So, he helped them with this concept called See-Stop-Say. What is that? That’s alliteration, by the way. See-Stop-Say. More memorable, even though I couldn’t remember it right now. But it’s been a long week. See-Stop-Say.

And so what that basically was is you would break whatever you’re going to be presenting to the court into snippets of a couple of sentences. And actually, if you go in and you Google Churchill’s speeches, you can actually see this. He would have it typed this way where you have two lines or four lines, something that he could memorize quickly and paraphrase. So how this worked was you would stop, you would memorize the two lines, you would look at them, you would put your head up, you’d pause for a second, and then you would recite it. It looked natural, believe it or not. Some of the critics have said, “Well, but people don’t pause when they talk like that, that’s artificial.” And that’s baloney. Because if you ever listen to a conversation, if you do a meta-analysis of a conversation, you’re going to see there’s a lot of pauses in conversation.

So it’s actually more natural to do it that way. And watch The Darkest Hour. I forget the name of the actor that plays Churchill, but you can see it, you can listen to with the recordings of his speeches, how he would pause during various transitions. So that’s something I would urge everybody to think about. You want to make sure that you are connecting with your judge. The opening statement that I did in that case that Steph and I were trying, that I told you about, it was maddening to me because the judge wouldn’t look at me.

His head was down and he was writing notes the whole time. I wanted to clap to get his attention, and it was blowing my whole thing. But hopefully he was listening and took good notes. I think it was a pretty good opening. Along the lines of authenticity, I want to talk to you a little bit about your voice in court, and I’m going to make some recommendations. One recommendation is that you watch a Charlie Rose interview of David Boies, B-O-I-E-S. And I want you to listen to how Mr. Boies talks. Again, he talks like he’s in somebody’s living room. He used that same voice at the US Supreme Court. He represented Al Gore and the Gore-Bush disputed election of whenever that was, 2000, way back when.

That, I think, is an important thing for you guys to try to think about when you’re structuring your arguments. It is, “How can I do that?” I, last summer, had the opportunity to interview Dan Webb, and you guys probably don’t know who Dan Webb is, but he’s a legend in Chicago. He had cross-examined Ronald Reagan in the Iran Contra trials in the 1980s. And when I reached out to him, he responded to me saying, “I’m busy in May, but in June we can meet. I’m on trial in Delaware.” And I thought, oh, okay, well, thanks. I’m excited to meet you. And about a day or two later, I figured out he was trying the Fox and Dominion Defamation case. He was a lead counsel for Fox Corporation.

And when I got to meet with him, he said, ‘Yeah. I was standing up to do my opening statement and the phone call came in saying that the case settled.” So, he was there as trial counsel, and other lawyers were trying to settle the case. And so I spent two hours with him. And what I took away from that, again, was this genuine conversational tone, which you see why juries responded to him. I’m being a little bit redundant, again, back to this repetition as the mother of skill, but I really want to emphasize the importance of not being pretentious in a courtroom. So now I want to talk a little bit about professionalism in court.

There’s an old saying that is, if you roll in the mud with pigs, you’ll both get dirty and the pigs like it. So what does that mean? That basically means when you’ve got a case with a lawyer that cuts you off, talks over you, plays dirty, does Gish galloping, which is a form of argument where they just throw a bunch of unsupported facts into the arena and try to distract the judge with that, you don’t want to engage with them. Again, this is all part of building up your ethos. You want to enhance your credibility with the court by having the self-control to be able to sit there and be professional in dealing with lawyers like that. I do not believe in fighting fire with fire. I will say I’ve done it, not because I know it’s the right thing, but because of a lack of self-control.

Next to the eye contact, the next greatest superpower of a trial lawyer is personal self-control. How do you deal with it when you’ve got the judge that makes a terrible ruling? How do you deal with it when a judge won’t let you present as evidence something that is critical to your case? The judge just floods the rules of evidence and won’t let something in. You can cry about it, but there’s no crying in trial work. So you can’t really do that. You can let it send you into hyperspace emotionally and screw up the rest of your case, or you can just deal with it. And that’s what self-control does for you. So I will tell you that I work very hard every single day of coaching myself on maintaining self-control. I have this little mantra that I say to myself almost every morning that, if you control yourself, you control the entire contest.

What does self-control look like? Not reacting to taunts, not reacting to bad rulings, keeping your eye on the ball, not getting distracted by client jibber jabber. That’s really what self-control is. Not losing your temper. Not going into a mode of catastrophic thinking. Remember, there’s always an appellate court. You always need to try your case both at the trial court and the appellate court. And so that’s what I mean when I talk about self-control, and it’s probably the hardest thing in the world to do. I have a friend, Miles, you may know him, Jim McLaren from Columbia, South Carolina. Joe, I don’t know if he was there when you were there. He might’ve left by then.

But McLaren used to use this analogy about the British soldiers fighting the Zulu in the 19th century in the imperialism wars. And what he talked about was the Zulu would throw spears, and the British soldiers would take them in the chest, and they would keep walking forward and you would never know. They would never change their expression. They just took it as, oh, that spear’s supposed to be sticking in my chest. And he used to talk to our students about how bad shit is going to happen at trial, but you never want to let them see you sweat. You never want to let them see you react. If the other side smells fear, it all starts to deteriorate for you from there.

So keeping your composure is a critical, really critical skill. Do what you need to do. You can be like me and just do affirmations every morning. I think that it works for me, mostly. Stephanie’s seen me lose my stuff every so often, but I work hard on it. Be on time, be courteous to your opponent. Give them continuances when they’re legitimate continuances. We had one last week and it was like the third time it happened, but there was a sick child. We and our client, we really needed this court date. And Steph and I brainstormed and it was kind of like, well, I could say, no, I’m not going to agree to this. They’ll file some sort of an emergency motion and say she’s got a sick child. I’ll look like a complete ogre objecting to her not being home with her baby. I didn’t want to do it. So we agreed to it. And I think it was the right thing to do under the circumstances.

So be courteous. Be on time for court. Don’t be that lawyer that makes everybody wait for you. Sometimes stuff comes up, but get there early. I knew a lawyer, again, he’s since retired, who would always just jag us around going to other courtrooms and hiding out so we couldn’t get our motions heard. Don’t be that guy. Don’t be that person. So finally, remember the optics. Remember how you look. Dress for success. It is corny. My dad, who was a lawyer, used to say to me, your clients have no idea your skill level, but they know if you show up early, your shoes are shined, your suits are pressed, they’re going to think you’re Clarence Darrow. You guys may not know that reference either.

But that’s kind of what it’s about. And you also feel better. I know that when I put on my blue suit, some magic happens for me. And it’s important that you use your wardrobe effectively to help you make the sale of what you’re making. You don’t want to dress ostentatiously. You don’t want to dress inappropriately for a courtroom. There was a lawyer that used to show up on Fridays in Bermuda shorts and Hawaiian shirts, thinking he was cool. It was Casual Friday, it was popular in the ’90s, but nobody really liked that sort of stuff. There’s a lawyer that I know to this day, he’s about my age. He wears Three Stooges ties and during the holidays, he wears Rudolph the Red Nose Reindeer ties. And I suppose that’s probably okay for a status call or something like that.

But if you’re trying to make an argument about why your client should be awarded custody, I think that goes towards your gravitas. I think that goes towards your ability to convince the court to believe what you’re saying. So you want to be thinking about the optics. You want to be thinking about your facial gestures. You want to think about your posture. How am I standing before the bench? Am I slumped over because I’m tired? Because I was up all night with a sick kid. Well, you got to suck it up, drink a cup of coffee before court, get that energy going. Sometimes you also need to fake it to make it. Sometimes you just need to get yourself psyched up. Get your posture up, deep breaths before you go in. Positive thinking. Again, it’s corny, corny, corny, but it works.

I’m also a big believer in visualization. I wrote about this in one of my books. Where I will sometimes sit down with a cup of coffee, sometimes with a cigar, and I will walk through the entire trial in my mind. It kind of helps things gel for me. So I’ll visualize myself sitting at the counsel table, with my able associates sitting next to me and my client, and I’ll see the other side and see they’re wearing a Three Stooges tie or whatever the case is. And I’ll see their client. I’ll see the judge on the bench. I’ll see all this in my mind’s eye. And then I’ll see myself stepping up to do my opening statement. And then I’ll see the other side getting up and doing it. Then I’ll see the first witness on.

So, I walk through the entire trial thinking in generalities, not necessarily in specifics. And it helps me get juiced up for it gives me ideas. I’ll write down notes immediately after I go through that exercise. Michael Jordan was a visualization advocate. A lot of the great athletes are. All the golfers. Jack Nicholson said, I never took a shot that I didn’t see in my head first. So if it works for them, it would work for us.

So let me just recap it quickly and then I’ll open it up for some questions. The three R’s that I want you guys to take away today, again, they are R-R-R, alliteration. Three R’s. Readiness. Be ready, be prepared, be early, have a plan. That’s what readiness is all about. That will make you effective. Second R, reasonableness. Don’t argue with the judge. Cop to your weaknesses as necessary. Look for solutions. Don’t be impracticable or impractical with your asks. Be the friend of the court. And finally, read the room. Pay attention to what’s going on around you. Be sensitive to where your judge is at that particular day. Watch the judge’s body language. See what might not be working and pull back if it’s not working.

So read the room, paying attention to the judge, not necessarily the gallery, but read the room so that it will help you be more effective.

Steven Peskind is the author of:

• The Successful Lawyer Blog
• The Family Law Trial Evidence Handbook: Rules and Procedures for Effective Advocacy published by the ABA Family Law Section
• See the rest of Steven’s books at his author page on Amazon

Check out Peskind’s other videos in this Oral Advocacy series:

1. Calming Courtroom Jitters, for Attorneys
2. Peskind’s Structure of an Oral Argument for Lawyers
3. Oral Advocacy: Authenticity, Language and Professionalism
4. Keeping the Judge Engaged During Oral Arguments
5. How Do You Practice Oral Advocacy?

For further discussion, view Evidence & Oral Advocacy with Steven Peskind.