Why Cant Lawyers Speak Persuasively Anymore? Successful attorneys employ performance techniques from actors.

So why dont more lawyers do it?

By Chris Carlson In politics, any commentator will tell you that the candidate who wins the hearts and minds of the most voters will carry the election. As attorneys, we recognize that the same skill helps win cases. The trick is learning how to do it. One would think lawyers would be well trained as professional communicators. After all, lawyers are called on to explain complex information to a critical audience, pitted against an opponent offering a contrary version, with success measured by whether an audience is moved to rule in ones favor. But, surprisingly, lawyers as a profession leave much to be desired in their oratorical skill and training. This hasnt always been the case. Early in our legal systems history, all business in trial courts was conducted verbally. With little reliance on written materials, advocates had significant opportunity to practice and hone their oral advocacy skills. The Supreme Court initially allowed parties to speak as long as they wanted, with some cases consuming days of the courts time. While one would expect a profession with such a rich history of oral advocacy to prize and produce skilled orators, there have been some troubling observations made at the highest level indicating otherwise. In the late 1940s, the justices are reported to have evaluated four out of every five oral arguments as not good. More recently, Chief Justice Warren E. Burger claimed that one-third to one-half of the lawyers who appear in

serious cases are not qualified to render a fully adequate presentation. Putting it even more severely, Justice William O. Douglas once complained that 40 percent of the lawyers who argued in the Supreme Court were incompetent. What can be done about this? Plenty. Many lawyers fail to appreciate what a complex physical process oral communication is. They need to re-learn the mechanics of speaking, not unlike deconstructing a golf swing or jump shot. For example, one of the more fundamental principles of speech is that volume is directly proportionate to the amount of breath one can generate and control. Allow me an analogy. In order for a car to go anywhere it must function. Whether its a Porsche 911 or a Plymouth Horizon, there are a finite number of systems that must operate appropriately for the car to function as designed. How well the car runs is a matter of excellence in executing the required processes, but whether it runs is largely a question of function. To get from A to B, a car needs a working engine, fuel, and wheels to run on. And, the functioning of these required systems must proceed without significant hindrance. If its bumper is dragging, it isnt going to get very far despite the gas, engine and wheels. So, too, with human speech. There is a relatively clear threshold a human being must cross before his or her speech is intelligible. You need to have adequate breath in order to make sound loudly enough to be heard by the human ear; your lips, teeth and tongue must be sufficiently agile to articulate words; and so on. In addition to meeting this minimum threshold, a speaker has to eliminate competing distractions. Poor pacing, verbal tics, and superfluous hand gestures are all potential impediments to effective

communication. And most importantly, a speaker must supplement his message with an appropriate and supportive emotional impression. Every message carries with it an emotional component. Emotion is an evolutionary shorthand that allows us to quickly communicate information without having to process it. Our perception of emotion is constant. It guides us through our everyday life by informing our instinct. We use it to determine credibility, motivation, sincerity. An emotional signal that is at odds with its underlying message has the power to nullify the inner content of the message. Sarcasm is an excellent example. Someone who doesnt like your hat may comment, Nice hat, but say so in a manner that indicates the exact opposite of the words. In court, one of the primary functions of judge and jury is to gauge the relative harmony of testimony. Our chief method of telling when someone is lying is through the appropriateness of the emotional component. We usually express such a disconnect with such references as, That sounded fishy, or There was just something about him that I didnt trust. The potential for emotional disconnect is perhaps the single most compelling reason for understanding and controlling oral advocacy skills. Disharmony in a message conveys a meaning far beyond the speakers control. If I tell you the truth but am not convincing, you immediately attempt to rectify the discrepancy. Is he lying? Doesnt he care? Is he trying to tell me something else? The more prepared a message is, the more difficult it is to associate an appropriate and organic emotion to it. In essence, this process is acting: marrying the most appropriate emotional component to the rest of a message so that the entire

communication sounds as natural as possible. Theatrical philosophies and exercises have evolved over centuries to effectively harmonize prepared messages with organic perception. The actor trains to hone the form with which he delivers his lines to provide direct support for their meaning. More simply, acting could be thought of as getting the performer out of the way of the truth of her message. Understanding this process allows you to move on to the next step and develop an awareness of what you're doing. You are able to shift your focus to different stages of the process as you learn where and when they occur. For example, after learning about the breath/volume relationship, you could shift focus to how you generate and regulate your breath. Again, like understanding how a soft jump shot requires good follow-through. An academic understanding of the process is most effectively coupled with exercises that isolate different stages of the process. While artificial, exercises force focus on a small range of the process that is usually conducted quickly and without awareness. By growing aware of the physical process of speech, you are able to then exert a degree of conscious control over it. In addition to developing awareness, physical exercises are excellent opportunities to make small adjustments in the process with relative ease and explicit awareness. Once the change is mastered, the modified exercise can be repeated over and over with less and less conscious control. Eventually the muscles involved will grow accustomed to the action, instilling its naturalness into socalled "muscle memory." Abraham Lincoln, one of the greatest legal figures in history, used to read the newspaper out loud every day in his law office to strengthen his voice. This last stage is perhaps the most difficult to master. Actors and athletes alike spend their entire careers training their body to perform. Attorneys have not traditionally

paid similar attention to this physical training. Their most effective guide would probably be someone with professional communication experience who can provide outside, objective, and, perhaps most importantly, practical feedback. Examples of such guides would include speech coaches, some trial consultants, andyesactors and directors. There is nothing stopping attorneys from improving their oral advocacy skills. With a firm understanding, awareness and control of their own oral advocacy processes, todays attorneys might be able to regain the former preeminence of their profession. Carlson bio

SIDEBAR Controlling the Image Lawyers can learn plenty from the Bush Administration

Like attorneys, politicians must communicate difficult information to a largely indifferent audience. Success in the political arena lies in persuading and inspiring the electorate. Failure at this equates to failure in the field. Unlike lawyers, however, politicians have adapted and vigorously embraced a wide variety of communication strategies. The current administration provides an excellent example of how seriously the political profession takes the way its messages are delivered. The Bush staff goes to extraordinary lengths to craft every presidential communication. In the words of administrations communications director, Dan Bartlett, if [Americans] can have an

instant understanding of what the president is talking about by seeing 60 seconds of television, you accomplish your goals as communicators. One of the successes of the administration in this regard has been the high aesthetic quality of every Bush photo opportunity and televised appearance. For example, the White House commonly rents industrial-strength stage lighting to support presidential appearances. For the presidents address to the nation on September 11, 2002, the administration rented rock-concert-strength Musco stage lights to light the Statute of Liberty. For another presidential speech in Romania, the administration once again rented the same kind of lights from a company in England, shipped them across the English channel and drove them across Europe to light the countrys former Communist headquarters, which appeared behind President Bush. The administrations dedication to detail does not stop with light. White House aides have asked crowds seated behind the president to take off their ties to lend a more casual air to Bushs press conferences. The White House directed camera crews to position themselves at a news conference at Mount Rushmore so that the presidents profile perfectly aligned with the four presidents carved in stone. By eliminating potential distractions and carefully crafting the manner of delivering the message, the White House has been able to increase the potency of presidential communication. The difficulty of focusing a message is most evident when the process goes awry. The Bush administrations rare missteps are as much a testament to its largely unnoticed successes as it is a reminder of the complicated fragility of the communication process.

At a news conference at a warehouse in St. Louis, volunteers for the White House constructed a painted backdrop with boxes emblazoned with red Made in U.S.A. stamps to be placed in front of the real boxes that had no such stamps. The effort backfired when the New York Times ran a wide-angle picture that included the fake box backdrop in front of the real boxes. On May 3, 2003, the president deplaned aboard the U.S.S. Lincoln dressed in a flight suit to announce the end of hostilities in Iraq. The White House painstakingly choreographed the event, directing everything from the coordination of shirt colors to the optimization of sunlight. The press and others commented extensively about the overinvolvement of the White House in staging the event. Criticism prompted the president to make an unusual statement from the Rose Garden regarding the appearance. The `Mission Accomplished' sign, of course, was put up by the members of the U.S.S. Abraham Lincoln, saying that their mission was accomplished, the president said. However, the White House press secretary later admitted that the administration did, in fact, produce the banner. While widely cited as one of the all-time greatest publicity coups ever, the presidents surprise Thanksgiving visit to Iraq was also not without its problems. The visit was communicated to most Americans by a picture of President Bush standing amidst troops holding a magnificent honey-glazed turkey with all the trimmings. On December 4th The Washington Post reported that the president was holding a fake turkey that had been placed on the soldiers buffet line as a decoration.

Each of these gaffes provided significant distraction from the presidents intended message. Communication is never successful when more attention is paid to form than content. This is why the Bush administration has assembled such a sophisticated communications team. Working directly under Dan Bartlett, the White House communications director, is Scott Sforza, a former ABC producer. Sforza works closely with Bob DeServi, a former NBC cameraman and whose title is associate director of communications for production. Finally, Greg Jenkins, the director of presidential advance, was a Fox News television producer in Washington. While most lawyers dont have the resources to hire such high-profile talent, some very talented theatrical types have been making an enormous contribution to advocacy skills. David Ball, former dramaturge for the Guthrie theater, is one of the countrys best-known and most-respected trial consultants. His talent for supplanting effective theatrical structure to courtroom proceedings has won him praise across the country. His book, David Ball on Damages, is one of the best selling trial strategy books available. Other talented consultants include Joshua Karton (Los Angeles), Gillian Drake (Rockville, Maryland). Any one of these or similar consultants can help attorneys craft their communication with the same level of theatrical effectiveness as these presidential aids have shaped the American political arena. Perhaps even more effectively. Chris Carlson

SIDEBAR The Sound Of Victory A study published in the academic journal Social Psychology Quarterly analyzed the voices of the two leading presidential candidates during 19 televised debates from 1960 to 2000. The researchers applied a sophisticated acoustic technique called Fast Fourier Transform Acoustic Analysis to distill each candidates voice to a sonic signature. They found that some candidates were able to generate a certain tone with their voice that, according to the study, commanded social dominance. Even though this tone (.5 kilohertz) is imperceptible to the human ear, the study showed that the candidate who produced it won the popular vote in each of the eight analyzed elections. Candidates Kennedy, Reagan, and Clinton were measured to be more dominant and won the popular vote. Unable to produce the tone and losing the popular vote were candidates Ford, Dukakis, and, notably, Bush. The exact implications of the study remain open to debate is there some superpersuasive super-tone that we can learn to control friends and colleagues? but it seems clear that successful candidates tend to share certain vocal qualities. At the very least, the study illustrates the power a skillful speaker exercises over his or her audience. C.C.