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Pro Tip for Oral Argument: Stop Talking

By William Vogeler, Esq. | Last updated on

It is a maxim in trial practice that when you are winning, stop talking.

This does not mean you walk up to the podium with nothing to say. It means that you need to know when you have said enough. Quit while you're ahead.

Oddly, it seems to be a difficult lesson for many lawyers to learn. More than one judge has cringed when an attorney begins with this statement:

"Your honor, I'll be brief."

Focus on the Audience

It basically comes down to this: it is not about you. It is about your audience.

If you have ever seen a judge or juror start to nod off, or their eyes glaze over, during your argument, you were losing. You may not have been losing the case, but you were definitely losing your audience. That is bad, and often a prelude to something worse.

There are ways to recapture a waning audience, such as changing your tempo or using visual aids. When long arguments are necessary, it is also a great idea to take breaks.

Know Your Listeners

Whether your audience is a judge or a jury, it is important to know something about them. It doesn't require a background check, but take a few notes before you start talking to them.

For example, when preparing your argument, think about the people as you organize the information you plan to present to them. By targeting specific individuals, you will connect with everybody more directly.

Much of human communication is conveyed psychologically, so build rapport by highlighting similarities, mirroring behaviors and speaking in ways that connect with your listeners. Carefully choose how to convey the information you want to emphasize, remembering that first and last statements linger longer.

Don't Just Say Your Argument

Of course, you should always prepare what you are going to say. As much as possible, however, step away from the script and try to speak to the people -- not at them.

Know your stuff, but also know that people respond better if you are engaged with them. The way you stand, sound and look will add an air of confidence.

I'll never forget what Gerry Spence told me when I asked him how he won the case for Imelda Marcos, who was accused of looting the Philippines treasury. Everybody thought he was going to lose. After all, you remember all those shoes?

"How did you convince the jury that she was innocent, Mr. Spence?" I asked in an interview.

He looked at me with eyes as blue as a Wyoming sky and said: "Because she was."

Enough said.

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