Recognizing Your Limitations As An Orator (Admit It, You’re Not Cicero)

I’ve discussed here and here the wonderful primer on trial advocacy Lee Horton gifted to me before he retired. In his discussion on opening statements, he says this:

“In making our opening statement, don’t try to be something you are not. While it helps, you do not have to be a great orator to give an effective opening statement. Practice giving your opening statement until you can closely track your written statement with only a few strategic notes. Emphasize the key points with voice inflection and, where appropriate, by the use of an exhibit, reading a small portion of a deposition, showing a video excerpt or drawing a diagram. Most importantly, be sincere and to the point. If the jury finds you make your points and sit down, they will listen to you because they will grow to expect that the points you make will be important.”

I find this to be solid advice for two reasons. First it acknowledges a truth: that many trial lawyers are not naturally gifted speakers. We obviously come to the profession from a variety of backgrounds, some of which might have included training and/or practice in public speaking. But many of us had only minimal training and experience in persuasively presenting information to an audience of 6-12 before we passed the bar.

The good news is you don’t have to have been born with the gifts of a Cicero, a Churchill or a Kennedy to effectively try and win cases. What is important is that you present the information in a way that both engenders trust and permits the audience–the jury–to follow along.

The other reason Horton’s advice is so valuable is because it highlights how we gain trust from jurors by making only the most important points each time we speak. There’s only a limited window that most of us will pay attention and follow a lecture. Don’t squander that window of time with facts that are not crucial to winning your case. As Horton notes, if you follow this practice from the start, the jury will trust you not to waste their time and attention. Again, “they will listen to you because they will grow to expect that the points you make will be important.”

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Horton’s Second Rule For Success At Trial

I previously wrote about my experiences with a unique trial lawyer (and war hero) I had the pleasure of working with too briefly before he retired, Lee Horton. Lee gave me a copy of a primer he wrote with the goal of preparing young lawyers to try their first case. In the preface, Lee listed 4 golden rules on which he premised his successful career as a trial lawyer, focusing largely on air-crash cases. I already described the first rule. Here’s the second:

“I always want to know the four or five facts it will take me to win and the corresponding four or five facts it will take me to lose. I try to develop these facts as a Chronology early in the preparation of a case.”

Right off the bat I’m suspicious: isn’t this overly reductive? Sure it’s possible to reduce the “crucial” facts of a dispute arising from an intersection fender-bender or medical malpractice to four or five for each side, but how do you apply this rule to a complex commercial or intellectual property trial?

Some answers to this objection come to mind. First, bifurcation, or separate trials, of certain issues may be an option. In the event of a bifurcated trial, it is not unreasonable to expect that each separately tried issue can be reduced to four or five crucial facts. But I think a better way of looking at this point–and how I imagine Lee himself would answer the objection–requires a fundamental philosophical recognition that we are much more likely to grab and keep the jury’s attention if we do limit the crucial facts to be focused on to merely four or five, regardless whether the case is a fender-bender or Apple v. Samsung. If you’re preparing for trial and you can’t narrow the absolutely critical facts to just four or five, then maybe you should take yourself back to the woodshed and narrow your focus. Finally, if you really are getting ready to try an ultra complex case that cannot reasonably be reduced to four or five crucial facts, then give yourself the luxury of six, or ten, or whatever. The point is to focus.

Now, the issue becomes how to decide which four or five facts are most crucial? In my own practice, I begin with the jury instructions I expect will be given at the conclusion of trial. The elements of the claims and defenses identify the crucial facts. Many will not really be in dispute. But of those that are disputed, it should be possible to identify just a few that, if proven, will win or lose the case.

The other component of Horton’s second rule involves developing the facts “as a chronology.” I recognize that not every story is told chronologically, but I suspect jurors appreciate stories that are. I know I would. Think about it this way: if you knew you were going to be tested at the end of a movie about exactly what happened, would you prefer the movie to be more like Usual Suspects or Gone With The Wind?† Because we experience our lives as a chronology, beginning with birth and culminating with death (or amnesia), most of us can “follow along” better if a series of important events are told to us chronologically.

Lee Horton carries this “rule” of distilling the case to four or five crucial facts, told chronologically, throughout the remainder of his trial primer. At the end, in the chapter devoted to closing argument, he again echoes the rule:

“I have told you in each of these presentations (almost like a broken record) that, prior to trial, I have a well-defined theme that is consistent with the favorable evidence and deals with the unfavorable evidence. This theme is supported by three to five foundational facts. By closing, the jurors have seen me go to great lengths to weave this theme, and its factual support, through every aspect of the trial. A good closing should have a clear beginning, middle and end. The beginning should have impact and briefly recite the theme and the 3 to 5 facts that support it. It should be followed with a story-like presentation of the evidence, with several ‘impact points’ to keep their interest high.” (Emphasis added.)

It’s too bad Lee retired before I got an opportunity to second-chair a trial with him. It would have been a great learning experience, I’m sure.

†For the record, I am a HUGE fan of complex, nonlinear narrative in fiction (Infinite Jest, Alexandria Quartet) and movies (Memento, Pulp Fiction). But I try to leave that passion outside the courtroom.

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The Trial Lawyer’s Need To Control The Middle of The Board

Visiting with my brother over the Thanksgiving holiday, our talk turned to strategy in chess. I confessed that, after about the fourth or fifth move in any game, I’m invariably at a loss for what to do next. My brother pointed out that, like so many games (and sports), the most important factor is to control a particular environment or space within the board.  “Just like you want to control the ‘T’ on a squash court,” he said, “you always want to control the middle of the board in chess.”

Later the same day, in writing another blog post, I was looking at the brilliant primer on trial advocacy prepared by my former partner, Lee Horton. Among his rules in the Preface, I came across the following:

“I attempt to control the case and the environment in which it is presented. The best prepared lawyer is almost always in the best position to control a witness or the flow of evidence. But controlling the courtroom environment is also important. I try to reduce the potential prejudicial variables in a courtroom to as few as possible. Remember, a juror associates everyone in the courtroom associated with you with your client’s claim. Therefore, I only want essential personnel in the courtroom. I also believe that those which do come into the courtroom should be properly schooled on courtroom attire and conduct. This may sound extreme, but I can point to three large cases that were lost because of a lack of consideration of the potential prejudice which can come from an out-of-control courtroom environment. In one case, the jury got mad because of the note-passing between the defense counsel and their client in the audience. In another case, the jury perceived the defense as dishonest because a paralegal frequently found herself in the bathroom with jurors on a break. In the last example, the jurors resented smirks from unknowing associates who came to watch their first trial.”  (Emphasis added.)

Taken in the most literal sense, I’ll admit it’s something of a stretch to analogize the courtroom environment with the center of a chess board, or the “T” in squash. But I think there is something here worth observing. While just controlling the courtroom environment by eliminating harmful distractions isn’t a recipe for automatic victory, the failure to maintain control at any point in the jury’s presence can be fatal.

In a less literal sense, however, there may be something more to the analogy.  After all, controlling the center of the chess board, or the “T” in the squash court, will always put the opponent on the defensive (at least until she over/re-takes the middle of the board or the “T” area of the court). As I’m a lousy squash player, I’m familiar with the feeling of trying to over/re-take the “T”. In other words, I’m familiar with being on the defensive in squash and, as a result, I lose most games.

But I never like the feeling of being on the defensive in a case or in the courtroom (even when representing a defendant). I do know the feeling, though. Naturally it can happen when one party has far better evidence, or when parties are not in comparable financial positions, such that continued or aggressive litigation will financially exhaust one party (or their lawyer) before the other. But these are circumstances beyond any lawyer’s control (at least any defense lawyer–a prosecutor or plaintiff’s lawyer should be able to choose better cases).

More commonly, though, I’ve seen it (or experienced it myself) by coming “late to the party” or being underprepared for an event, like a deposition or a hearing. I so hate that feeling I try never to be on the defensive for the wrong reasons. Like so much else in our profession, it comes down to preparation. By being the better prepared advocate, I control the “T” of the squash court, the middle of the board.

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Killing Them Softly With Preparation

Having the time and inclination to prepare as much as necessary–even over-prepare–really is a great equalizer when it comes to the trial lawyer’s craft. I had the good fortune to practice for a brief time with a distinguished aviation trial lawyer, Lee Horton, who gifted to me a primer he wrote years ago to help young associates learn how to try a case. In the Preface to this primer, he wrote:

“Whatever success I have had as a trial lawyer has been based on the following very simple rules.  These are: 1. Recognizing that there are a lot of people smarter than I am, but only a few that can outwork me.”

I am saving the remaining 3 rules from his primer for future posts. But when I read this first rule I found it to be a comforting revelation. I rarely hold the opinion that I am the smartest guy in any room. But when I remind myself of this first “Horton Rule,” I am empowered with the notion that there is an additional X factor that I alone control: how much time and effort I devote to being the better prepared lawyer in the (court) room.

It can be difficult to know precisely how much preparation is necessary. I find that the first time I do anything I tend to heavily over-prepare. For example, I do not frequently argue before appellate courts. However, a few years back an opponent appealed a favorable ruling I obtained on an anti-SLAPP motion. Fully briefed, it came time for oral argument of the case. I knew that I would want to over-prepare because only then would I feel ready for my first appellate court oral argument. I also knew I didn’t want my client to bear the financial brunt of this need to over-prepare, so I queried a few of my partners who had more appellate experience about how long they would typically spending preparing for such an oral argument. While I ultimately spent about three times as much as my partners suggested, I only billed the client for a third of my time.

We can learn from other disciplines about how much preparation is enough. I studied piano as an adult, and my teacher had attended the Moscow Conservatory and often shared stories from his time learning from one great master or another. He once described how hard he would work to prepare for a solo performance: when he thought he had memorized every nuance of a piece he would set his alarm to go off in the middle of the night. He would wake from a deep sleep, go immediately to the piano and play the piece. Only when he could literally play the piece, including every nuance, while still half asleep did he know he was really ready to perform.

There are multiple ways in which excessive preparation can be a weapon. I have learned from judges and mediators that the party whose counsel is better prepared is always at a distinct advantage in a pretrial mediation or settlement conference. On the other hand, there is no rule that says you have to make your opponent aware how prepared you are. I am a great believer in treating opposing counsel as a mushroom (i.e., keeping them completely in the dark) when it suits my strategy. Sometimes I want the element of surprise that comes from not revealing how prepared I am until it’s too late for them to catch up.

Is there such a thing as over-preparation to the point of diminishing returns? Undoubtedly. The key is to have enough lead time to accommodate the preparation you need without sacrificing your health, including mental health. Like most everyone, I pulled the occasional all-nighter in college and law school. But it was exhausting then, and it would be really exhausting now. Definitely not a good way to start a trial.

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