Keeping the Judge Engaged During Oral Arguments

Steven Peskind presents strategies to help lawyers not bore the judge, trim down courtroom arguments, don’t drone, don’t beg, use tactical pauses, implement rhetorical tropes to keep their argument compelling for the judge, alliteration, trilogies, antithesis, rhetorical questions, and demonstrative exhibits.

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.

All right, another thing I want you to think about is how to keep your arguments interesting for the judge. It is the cardinal sin in trial work to bore the judge. You never want to do that, right? So how do you avoid boring the judge? How do you keep it interesting, keep it fresh, keep it so that the judge is paying attention, right? Because once you bore him or her, you lose him. They’re not listening to you anymore. So how do you avoid boring the court? I have some thoughts about that.

You want to trim down your arguments. You want to keep them short and sweet. You want to drill them down to the essence. That’s one way of helping maintain interest by your judge. Now, Abraham Lincoln was a lawyer before he was president of the United States. You guys all knew that. And I am studying him. I’m working on the law review article about his law practice and how that influenced his thinking and impacted him as president. So that’s kind of the direction I’ve been working on. So I’ve been kind of reading a lot about him and how he constructed his arguments. He was a huge editor of his own work. He would cut his arguments down to their bare core. And then he would pound them from there as opposed to circling round and round and putting in a lot of unnecessary surplusage and things of that nature.

So you want to keep that in mind. How can I make it most efficient and keep the judge’s attention? Another thing you want to think about, don’t drone. Don’t just drone on and on and on. A lot of times we think, “It’s my insurance policy if I say the same thing 47 times to the judge.” You keep repeating yourself thinking that the judge hasn’t gotten it the first 46 times, and now I’ve got to say it one more time. The judge is either going to get it the first time or the judge is not going to get it. If the judge isn’t paying attention, you might need to repeat it.

And sometimes from a persuasion point of view, there is a principle of rhetoric, and we’ll talk a little bit about that today, that you want to build into your arguments, where repetition is effective. Where you would use the same words maybe over and over and over because it’s helping you create some sort of a rhetorical PowerPoint for yourself. But that’s different than just droning over and over and over again.

Don’t whine. That’s not interesting. That’s off-putting when you whine to a court, all right? Don’t beg. That’s another way of saying that. Again, we talked a little bit about rhetoric. So you can adopt certain principles into your argument. Watch some great speeches on YouTube or some great speakers and kind of listen to how they did it. A lot of them use tactical pauses where things can sink in. There is a law review article written by an Illinois lawyer that I really found really interesting, about the use of silence as a rhetorical tool as a lawyer. If any of you guys are interested in it, send me an email and I’ll send you the site of the article. But I’ve often found that, for example in a deposition, silence can really be powerful.

So the witness blabs on a little bit with a question that you ask, and you think there may be more. And so you just sit there silently staring at them as opposed to saying anything else. You just silently stare at them, and they will try to fill that void. Silence is uncomfortable, right? They will fill that void by blabbing on and on and you might get some jumps from doing that. So that’s something you want to think about when you’re presenting arguments.

Take a tactical breath to let something maybe sink in before you move on to another topic. You don’t always have to fill every second of the argument with a word or so. Use certain rhetorical tropes, alliteration. Any English majors in the room? Poets would use alliteration, which is a tactical repetition of consonants. The cat carried the canary, okay, we’ve got that same sound. A poet would incorporate that into his or her poem, and it resonates with the reader. And the same goes with you making an argument when you do things like that.

It’s kind of interesting, it kind of resonates with the judge. There’s this concept called tricolon, which is where we use three examples of something. I came, I saw, I conquered. Sex and drugs and rock and roll. So that’s another principle that you could use. When I do an opening statement, a lot of times I will give the court three examples of what the evidence is going to show.

I don’t know what it is. Something about our psychology, but the rule of three basically makes it more digestible, more interesting, as opposed to, “I’ll give you 17 examples.” You sort of lose it. Three of your best examples is a power play. So, whether you’re making an argument or a motion, you want to use three examples. “Judge, let me tell you why I think that’s the appropriate course of action. I’m going to give you three reasons, okay?”

You say that, and all of a sudden, the judge is on the edge of his or her chair. What are those three reasons? You’re keeping it interesting. Okay, and again, that’s just rhetoric. And there’s a lot of really good books on rhetoric by the way. And I have them in my library. I have a bibliography. If anybody’s interested, again, send me an email if you guys are readers, and I’ll send you the bibliography of some really good books to read.

Antithesis. This is something else that Lincoln really used effectively. And his second inaugural used a lot of antitheses, and that was one of his best speeches. And Charles Dickens used it. “These are the best of times, these are the worst of times.” What is that? Tale of Two Cities, I think. By the way, a lot of what I get is because I am an avid reader and I read tons of fiction.

I’m in a online book club with a professor from Oxford who gives us reading assignments, and then he comments on it. You don’t get tested. It’s not like an academic course. But I just spent pretty much the last six weeks reading Walt Whitman. Anybody read Uncle Walt? No. Okay, well, I love Walt Whitman now. And so, The Dead Poets Society, anybody see that movie from the ’80s? I’m getting a yes from Stephanie over here. There’s a lot of Walt Whitman in that movie, by the way. So anyways, I get a lot of what I use in court just from reading great writers and reading great poets. If you really want to enhance your skills as an orator, or a writer, or as an effective advocate, that’s a good way of doing it. I mean, it is harder than watching Netflix in some ways.

In other ways it’s much easier. It’s nutritious. Nutritious for your soul. Rhetorical questions are another way where you ask a question. “Why would she do that, your Honor? I ask you, why do you think she would do that?” That gets the judge’s interest, and the judge starts thinking about it from that context. You’re framing the question by the way. That is your little cheat that you get to call the question, and the judge will hopefully answer it in the way that you want. Another way to keep it interesting is the use of demonstrative exhibits. You can use a demonstrative in a motion or in an opening statement. You certainly could use it in a closing statement. Stephanie and I are working on a PowerPoint for our closing argument on the case we’ve been trying where we will put in with the trial pad technology that allows us to do this.

We can pop out sections from documents. We can highlight sections. I can circle it. I can write right on the iPad with my finger. And so, we’ll have slides that will have the law with the language we want the judge to pay attention to that will pop out. We have key exhibits that we will highlight. We prepare a timeline. In Illinois, we have … A couple cohabits, the maintenance terminates. The alimony terminates. And so, we’re trying to prove that the ex-wife is cohabiting. And so, we have a timeline that we’re going to be using. So demonstrative exhibits keep it interesting, and you want to consider how you can effectively use them. You want to be careful though. You don’t want to be too corny. You don’t want to do stuff just to do it, and you want to do it if it’s going to be effective and it’s going to help you.

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.