How Do You Practice Oral Advocacy?

Steven Peskind continues his discussion of the fundamentals of oral advocacy in court, rhetoric, baiting the hook for the fish – not the fisherman, strategies for crafting an argument that will resonate with the judge, and tips for using oral advocacy to swing the court in your favor, client control, trust, and prepare a proposed ruling.

https://youtu.be/qJu1Fv5bepk?si=WAhmEPZ9l5RGmm4q

How Do You Practice Oral Advocacy? (https://youtu.be/qJu1Fv5bepk?si=WAhmEPZ9l5RGmm4q)

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 I want to switch gears for a second, and I want to talk to you about some actionable steps that you can actually start with on Monday for when you go to court. These are ideas that I’ve thought about and I’ve written about over the years. I have studied oral advocacy pretty intensively for over 20 years. What I studied really is a passion of mine, it’s interesting to me.

I’ve read books on rhetoric. I’ve read books on biographies of famous orators. I go into YouTube and I will watch famous trial lawyers being interviewed. We can’t watch them necessarily try a case because it’s not televised. But a lot of famous trial lawyers like David Boies are interviewed, and you can listen to his diction, and you can listen to how he communicates very conversationally and talks just like a normal person would be talking in somebody’s living room, hopefully, like I’m talking right now. That’s a superpower. And anyways, you can watch some of these great lawyers and you can emulate some of their mannerisms. And you’ve got to be yourself, you can’t be anybody else. I used to like to watch Jerry Spence early in my career. Any of you guys know who he is? The old guy in the back of the room.

I said to my wife the other day, I said, “I have all these cultural references that nobody’s going to know, like Jerry Spence.” He is the guy, and you’ve probably seen him on TV, he wears a fringe jacket and a black turtleneck, and he’s got beautiful white hair and a mellifluous voice, a very low baritone voice. And he was pretty famous back in the ’80s. He was a regular on talk shows, and he was a celebrity lawyer.

And I actually saw him when I was in law school one afternoon, trying a part of a case. I went to DePaul Law School in Chicago, and I went to our federal building and he was trying a case against McDonald’s. So that’s the sort of thing that has always kind of inspired me. And you’ve got all these great resources from, again, YouTube and books and academic literature. A lot of what I know actually comes back from the ancient Romans and the ancient Greeks. This is where rhetoric was originally invented. Do you know what rhetoric is, anybody? Get a gold star if you do.

Rhetoric is just using language to try to persuade somebody. Isn’t that what we do? We’re trying to take the facts, we’re trying to wrap it within the language in the most effective way that we can present that and get a result from the court. So the first takeaway I want you guys to think about is the importance of baiting the hook for the fish, not the fishermen. You know what I mean when I say that? Here’s an example. I’m not a fisherman, but bear with me on this. So I love pizza too much. My doctor said, “You got to knock it off.” So if I were to go fishing and I want to catch some fish, I could put pizza on the hook because that’s what I like.

Now, am I going to catch any fish putting pizza on the hook? Probably not. I need to put a worm on the hook. Why? Because that’s what the fish likes to eat. Now, why am I telling you this dumb story? Because it is a metaphor for how we should craft our arguments with the court. You need to craft an argument, bait, if you will, that is going to resonate with whomever your judge is that particular morning and be effective for that particular judge. Know your judge. There’s an old joke in our business, “It’s more important to know the judge than the law.” And a lot of people think that means that if I’m buddies with the judge and I golf with him on the weekend, I’m going to get a better result.

I don’t think it means that at all. I think it means knowing what is going to be appealing to the court and knowing what is going to be resonant with the court. That’s what you need to know. So, I have a judge who is very lighthearted. He is Mr. Jokey Joke. And so, when I go before that judge, I know the judge, I need to be lighthearted. I need to indulge in a few minutes of jokey joke with him, even though I really don’t feel like doing it, but I need to do that to get into the judge’s head space to help my result.

Or your judge may be Mrs. Serious, who is heavily focused on the law, who is a really, “Do you have a case that says that?” That sort of judge, that sort of personality? With that particular judge, you’re coming forearmed with a bunch of case law, copies of it for the court, highlighted if necessary, whatever you need to do, because then you’re getting on the judge’s wavelength and you’re having that judge listening closer to you in terms of your entire arguments.

So before you’re preparing an argument for the court and before you’re structuring how you want this argument to look and how you’re going to be playing the ball in that particular instance, you want to figure out what is the most appealing thing that you can say to the judge that will help the judge go your way. Now, one of the things I mentioned a little bit earlier is to be an educator for the judge. Taking that thought and extending that thought, you want to be a friend of the court.

You want to give the judge suggestions that will help the judge decide the case. You’re going to frame those suggestions in a way that will be beneficial to your client or beneficial to your case. Maybe not today even. Maybe you’re looking at the chess board, three moves down the road. So what is it that a judge is charged with a responsibility to do? To decide cases fairly, right?

What are you charged with the responsibility to do? To advocate for your particular client, right? Your job isn’t to decide the case fairly for the other side. Your job is to argue for your client. But again, I’m baiting the fish, I’m baiting the hook for the fish, and this particular fish is looking to do something fair. So if you can come up with a suggestion to the court, you’re the reasonable lawyer. You’re the lawyer trying to solve problems, you’re the lawyer that’s helping the judge, you’re the lawyer that’s helping the judge not have to think as hard because you’re throwing out suggestions that the judge can adopt and build into whatever the ruling that the court may want to do.

That’s a really powerful tool that you can use. So I want you guys to think about that. By the way, one of the other strategies that I think is a good strategy to use is to prepare a draft order before you walk into the courtroom, laying out specifically, “This is what I want you to do, Judge. These are the findings that I’m seeking from the court with regard to this particular matter.” Because there’s a reasonably good chance a judge, very hard pressed on time, is going to look at that. Again, it’s a shortcut. We all, as human beings, we are all looking for ways not to think as hard.

And that’s not a criticism of the human animal. That’s just psychology 101. We’re always looking for the least friction, cognitive friction that we can get away with. You give that judge that order, that’s a pretty good tool for you to think about. Okay? So now one of the challenges we have is that pesky client that we’ve got to deal with. We have a client who’s angry or emotional or who says, “Well, you’ve got to argue this, you’ve got to argue that” whatever the case may be. So, you need to resist that urge because remember the bait for the fish. The judge, in all likelihood, is either going to be put off by a very highly emotional, very angry, very one-sided sort of argument, or one just won’t appeal to the judge. The judge will just be bored and just blow you off.

Now, a lot of lawyers that I work with, and I presume lawyers that you work with, are all about placating their clients. They will argue anything that their client wants them to argue. They’re really committing malpractice, in my opinion, and these lawyers are thinking that’s being a good lawyer, because I’ll argue anything, right? Anything that my client wants, as long as it’s not unethical or I’m not lying. Although some lawyers don’t mind lying, but that’s not really good lawyering. And that’s where client control issues are important.

And I think you need to always think about preempting your client’s impulses in that regard and getting control over them. Early trust is always an issue with our clients. There’s always a little bit of weariness, they’re never 100% certain with us. And I think it is more of a problem for a newer lawyer than an older lawyer. Number one, the gray hair helps make the sale for the client in terms of trust. So you need to really work hard building that trust with a client. So when you can say to them, “Look,” building that trust with the client. So when you can say to them, “Look, I know you think this is really important, but you got to trust me on this. It’s going to offend the judge. I can’t do that,” and give them the reasons why. And if there’s a good trust-based relationship, then the client will say, “Okay, I trust you. Go do your job. Do the best that you can.” If the client insists on you doing it that way, you may want to think about getting another client or getting rid of that client. It’s okay to fire clients by the way. Think about that as far as when you’re preparing your arguments, explaining, preparing your client for why you’re doing what you’re doing and getting them so that they’re not poking at you in the courtroom. Nothing is worse than your client that is in there feeding stuff to you.

In the case that Stephanie and I just tried two weeks ago, my client is a CEO of a company, and he is a hard charger. He’s got an IQ of about 180. He was doing that to me this whole trial, and I was tired at the end of the day. Let’s just leave it at that.

Steven Peskind is the author of:

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

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

How Do You Practice Oral Advocacy?

Search MemphisDivorce.com

Topics

From The Blog

Your First Steps

Recognitions