Chapter 6 Persuasiveness

Advocacy - which is your job - is the skill of persuasion.

Your job is to persuade the tribunal of your case.

Not to shout at them.

Or moan.

Or complain.

Or be terribly clever.

Persuade.

What is persuasiveness?

How do we measure it?

Are there techniques to improve it?

Here is my suggestion as to what is courtroom persuasiveness?

An advocate is persuasive if the tribunal prefers her case when weighed against the burden and standard of proof.

Let's say that again.

AN ADVOCATE IS PERSUASIVE IF THE TRIBUNAL PREFERS HER CASE WHEN WEIGHED AGAINST THE BURDEN AND STANDARD OF PROOF.

Notice persuasiveness is not simply where her case is preferred.

Right at the core of persuasiveness is the burden and standard of proof. A jury may prefer a prosecution witness, but cannot be sure beyond reasonable doubt; they may prefer the prosecution case, so that they think it highly probably right - but with the burden on the prosecution to prove the case so that they are sure, not of what is highly probable, in the final analysis it does not matter who the jury prefer - the defence still wins.

So an advocate must firstly IDENTIFY TO WHAT STANDARD MUST THE TRIBUNAL BE PERSUADED.

In crime, for the prosecutor, her case must be beyond reasonable doubt. For the defence, her case must simply be reasonably possible.

Advocates are often heard talking to each other about cases, and it is clear no one is thinking about the burden and standard of proof. Prosecutors sometimes say their case is clearly the more obvious explanation. But is it the only explanation? That is the real question. The defence sometimes worry the jury will find it hard to believe the defendant in evidence. But is the jury sure she is lying? That may be the real question. And remember, it is more difficult for a jury to say they are sure someone is lying, than for them to say simply they find it hard to believe her, which often is not the same thing.

Think about this.

In how many speeches have we heard a prosecutor invite a tribunal to consider that an injury is consistent with the allegation of a punch. Yet the more precise issue is whether the injury can only be explained by a punch.

Is it equally consistent, as the defence suggest, with a blow from tripping over?

Or even, is it merely possibly consistent?

Is it enough to persuade the tribunal if the prosecutor simply says the injury is consistent with her case?

No.

How is persuasiveness measured?

By getting the tribunal to

REALLY,

REALLY,

REALLY

THINK ABOUT YOUR CASE.

Advocates cannot win every case.

Some are just bad cases, spoiled by bad witnesses, where it is pretty clear no one can be relied upon.

Some cases are won without the tribunal having to give it much thought - lawyers often say these cases resolve themselves and that advocates were actually unnecessary.

But most cases do require advocates to be persuasive. What may seem obvious can be turned upside down by a persuasive advocate, because she persuades the tribunal to really, really, really think about her case.

Do not believe advocates when they say they do not think they have much influence and everything depends on the witnesses - they are either being modest, or they are not very good.

Skilful questioning and a well-planned closing speech can turn the world on its head.

Or at the very least, it will get the tribunal to really, really, really think, which is the minimum you seek.

As for techniques to improve persuasiveness, there are many.

They can be learnt.

Generally, but not always, they work.

We start with PERSONAL PRESENTATION.

Every advocate is a salesperson, selling a client's story. This may sound unattractive. But it is true. And what is worse is very often the story you have to sell is seemingly unsellable. So you have to be a very good salesperson - not just any old salesperson.

There follow some mindlessly obvious suggestions, which although obvious, are often ignored.

DRESS WELL. Obvious isn't it.

Neat hair, dark clothing, like for a job interview - or to meet the Queen - after all, that's what you are doing, you are going to Her courts.

Do not get slack about your appearance. Every day you are on show. So show them. Make sure the clothes you wear make you look formal and fantastic.

Looking fantastic makes you LOOK LIKE A WINNER. Tribunals cannnot help themselves - they take people who look like winners very seriously. And you have not opened your mouth yet. This is elementary human psychology.

There is something else mindlessly so obvious you will grin - wear expensive polished shoes.

For inexplicable reasons, expensive polished shoes carry serious weight. People often look down during negotiation, when talking with clients or the opposition, probably to avoid appearing threatening, and when they do so, they see each other's shoes. It is surprising how often shoes are remembered, particularly if messy.

And if neat, they say ‘I’m on top of my game’, and may often have the effect of making the other person doubt themselves - which is usually what you want, and you’re already winning.

My polished shoes suggestion from the first edition has raised a touch of mirthful feedback, but I really do stand by it. I have never forgotten from being in the school play that line, I think, from Arthur Miller’s ‘Death of a Salesman’: With a smile and a shoeshine, the whole world is yours. He’s basically right. And he married Marilyn Monroe, so he must know a thing or two.

White or light shirts are preferred. Too much colour and you will give the impression you fancy yourself (which you may do - most lawyers do, but you must hide it). If a tribunal thinks you fancy yourself, it will often instinctively turn against you.

So now you look like a winner.

Behaving like one comes next.

The most important person in court, besides the judge is of course the usher.

THE USHER.

The usher controls the list and will usually decide when your case will be called on.

The skills of advocacy begin not when the tribunal sits. They begin when you arrive at court. In everything you do, you are on show. You are on show to the client, to the clerk, to the public, to the usher. If you look like a winner, remember to behave well, and not like a prima-donna.

And what you need next is very important.

POISE.

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Poise. Poise. Poise. Poise.

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Always remember poise.

Maybe I am overdoing the poise thing. I’m trying to get you to remember it above many of the other things I am saying. It is very important. Carry yourself meaningfully and DO NOT BE AFRAID TO OCCUPY SPACE in the courtroom.

Your movements should be purposeful.

Hold your head up.

Do not let your head sink into your chest, your body sliding into smallness, forward on the seat, so that you occupy less space, look bored, and appear to be a sloth.

Just holding your head up makes a huge difference. Whether leaning on elbows, reclining a little in the seat, addressing the tribunal, whatever - with a head held up, you will look attentive and in control. Obvious isn't it. And you still have not opened your mouth yet.

FIDDLING comes in many forms. Avoid it. Don't play with pens. Try not to doodle - even though the urge can sometimes be overwhelming - someone will spot you.

Don't pull at your suit while addressing the tribunal.

Don't rock backwards and forwards while seated or upright.

Don't shuffle papers while talking - it is irritating and will only mess up your bundle.

Many of us are unaware of fiddling, but it is obvious to everyone else.

Even better, video yourself at home, making some speech - we've all got a camera on our phone these days - set it up - see if you aren't amazed. Go on - try it.

HANDS should not be in pockets as this looks too casual. Put them behind your back. Or put papers in them, or papers in one and a pen in the other, or papers in one and the other behind your back. Or wind your gown behind you into one. Or put them both on the lectern.

Just don’t put them in your pocket.

Hands are a nuisance. They become barriers. We hide from the witness or judge, by putting them to our face, under our chin, folded across our chest, even to our mouth, to our earlobes, scratching our noses - yes, this is hiding - it is creating a barrier between our face and senses, and our audience, and is a form of self-effacement - as if playing pee-po, covering our eyes, or near our eyes, like when tots, as if to say if I can’t see you, you can’t see me.

So, when we fidget, our body language speaks, unknown to us, directly to the tribunal.

Generally, our uncontrolled hands say unpleasant things. They can suggest embarrassment, perhaps lack of faith in the case, and weakness. And so then we are ignored by the tribunal.

No, No - NO - stand up straight up, head held up, hair neat, dressed well, hands controlled - and relish the space you occupy - to enjoy the attention of the entire court.

If you have to fidget to relieve the tension, furiously wriggle your toes.

Crazy but true.

It is unseen, requires considerable effort, and uses such concentration that there is no room left for your brain, while addressing the court and wriggling toes, to indulge in visible involuntary fiddling.

Daft as it may sound, this really is a tiptop tip.

Like I say, DON'T HIDE.

It is easy to scrunch up over a lectern, or allow shoulders to bend forward, and for the head to hang, while addressing the court.

What you are doing, again, is hiding, though differently from pee-po-face- fiddling.

This time, you are trying to occupy the smallest amount of space, like you are squeezing yourself into a little hole in which to hide away.

You are showing you are afraid.

Whether you are afraid or not, don't show it.

Let's say it again: RELISH YOUR SPACE.

Think to yourself: I will stand like a rock, and let the winds blow and the seas foam all about me, but I shall stand. If done right, this is not arrogance. It is simply being solid.

Now here is something very important indeed. You must MAKE EYE CONTACT with the tribunal.

Be the tribunal lay magistrates

or a district judge

or a circuit judge

or a jury

or the High Court

or the Court of Appeal,

or the Supreme Court

or God herself...

MAKE EYE CONTACT!

This cannot be stressed enough.

So let’s trumpet it again: make eye contact.

Look at your judge. Look at each member of the jury.

Many advocates look down, avoiding eye contact, particularly with judges.

But judges are people too.

Talk to them, rather than to your notes. Advocacy is not some intellectual abstraction: it is about persuading people.

No one ever persuaded anyone of anything by talking down at the floor.

So if it helps, hold your notes close to your head, at chest height, rather than leaving them on the bench so you can occasionally hide by looking down. Close to your head, you can glance at them, follow them, and yet maintain regular eye contact, so that the dreadful hiding thing is minimised.

And of course by holding your notes, you have something to do with those damned hands.

And if intimidated, look at the third eye, which is the spot just above between the eyes of the Judge - this is a cunning little ploy - she will think you are mostly making eye contact, and so engage you, while in fact you are safely not, and may feel more comfortable.

When speaking, SPEAK FROM YOUR LUNGS, not from the back of your throat.

The voice is more powerful from the lungs and carries further, without sounding as if it is a shout. Also, the voice is DEEPER. Deeper voices sound more persuasive - why, is a mystery, but they just do. Tinny, light voices can sound plaintive, weak, sometimes desperate, appear to be shouts, or squeaks, sound out of control, and finally and most importantly, are difficult to listen to, and so in the end they can be ignored.

A deeper voice is also naturally SLOWER in delivery. This does not mean it proceeds at a snail's pace. Rather it is simply easier to consume and understand its content. Just how slow is good will be a subject for later, but for the moment, as a general principle, slow is better than fast.

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Leaning forward at 84.5 DEGREES to the perpendicular was once said as a comic aside to be the optimum angle at which to stand to be the most persuasive.

Funny or not, it is true.

84.5 degrees, or thereabouts.

If you stand bolt-upright at 90 degrees, the impression can exist you are leaning backwards. Or standing somewhat aloof.

However, leaning slightly forward conveys a wish to engage the tribunal, while appearing solid, dispassionate, with a firmness of purpose about your address: we look like we believe what we are saying to be correct, are sensible and reliable, and really want what we are saying to be fully understood.

This may sound the weirdest suggestion you have ever read.

It probably is.

But it works.

Try it.

So where are we?

We have not opened our mouth yet, but already we have the court's full attention:

we dress well,

keep our head up,

do not hide,

we have control of our hands,

we move purposefully,

unseen, we wriggle our toes - and no longer fiddle,

our voice is a bit deeper and slower,

we have eye contact,

we stand like a rock,

at the optimum angle.

We look CONFIDENT. We may in fact be worried, feeling awkward, and uneasy. How we feel does not matter, as long as we don't show it.

Feign confidence.

And the techniques applied so far will help do just that.

So right now, the tribunal has the impression we will be persuasive.

We're looking good.

Time to open your mouth.

PERSONALITY comes next.

Once you open your mouth, people quite deliberately start forming judgements. Quickly.

Please do not try to be someone you are not.

Advocates need only remember the rules of law, evidence and conduct, good manners, and at all times deference to the judge.

Within these constraints, BE YOURSELF.

There is no need to change your accent. If you normally gesticulate, within reason use gestures where helpful. Vary your tone and pace, just as you would in conversation.

Project yourself, not just the case.

This is an area which often troubles advocates. On the one hand, a court is not a coffee morning, ripe for cheery chat and easy banter. But on the other hand, all around you are real people. Real people relate to each other through their personalities. A court will best relate to you through yours.

Advocacy is not a science - it is an art. It does not work to hide our personalities behind passionless question structures, and carefully prepared legal submissions. A correctly phrased question to a witness, if delivered boringly and in a monotone, will usually have nothing like its intended effect. So much more is communicated by you as a person than by simply what you say: people look at how you say it, with what tone, with what expressions, and with what body language.

Try listening to an argument with your eyes closed.

It is immediately apparent that quite a lot of vitality is lost - but at least you have tone to consider.

Now try listening to a computer - as they can now do - speaking in monotone - with your eyes closed.

It is a nightmare.

A case is not just about witnesses and the evidence.

It is also about you.

You are speaking for someone.

If you try to be somebody you are not, you will lack credibility. And without credibility, you cannot be persuasive. So be yourself.

This means, project yourself through variation of the tone of your voice. VOICE VARIATION gives you personality and makes it easier to listen to you.

You want to be easy to listen to - as yourself - with your own accent.

If you’re paying attention so far, the tribunal will by now be listening to you easily and carefully.

Now we come to a very difficult area in the art of persuasiveness - BEING LIKED.

If it is possible,

and it is not always possible in some cases,

an advocate should try to be liked by the tribunal.

People are more sympathetic to those they like: it is human nature. With a sympathetic hearing, there is more opportunity to be persuasive.

Being liked by your opposition is quite helpful too: it is easier to plan out the case together, to avoid sudden surprises, and occasionally to persuade your opposition to agree evidence which will be to your advantage.

However, being liked is nowhere near as important as putting you client's interests first.

If there is a conflict between being liked and your client's interests, then put your client's interests first.

Let's be clear:

NEVER, EVER, EVER PUT BEING LIKED AHEAD OF THE CLIENT'S INTERESTS.

EVER.

This may sound obvious, but it can be difficult in practice. We can be intimidated by senior opposition or a difficult judge. The unspoken suggestion may be that we should roll over and play dead if we want to remain friendly. The suggestion may even be we cannot be any good as advocates, unless we concede some point, which surely is obvious to someone with real ability.

Be very careful.

You now need JUDGEMENT.

Judgement is what you are paid for. You must have this if you are to be any good. It is your greatest necessity as a lawyer. Whether you have it or not is usually a question of talent, feel, common sense, understanding of the law, experience and occasionally cunning. It cannot be taught.

We must each have the confidence to form our own judgements on issues.

We must each have the talent to get it right more often than not - like I say, I cannot teach you talent - but I can teach you to check for the views of others - read on.

Each advocate can be (and usually is) different on the precise view to be taken on some point. If in your judgement a point must be taken, listen carefully to your judge, listen carefully to your opposition - above all, consult others - but if your judgement remains the same, and you risk not being liked for it, follow your judgment not your popularity.

This is the cornerstone of what being a lawyer is all about:

FOLLOW YOUR JUDGEMENT, NOT YOUR POPULARITY.

Of course this is obvious, but it can be very difficult to do sometimes.

It takes courage.

Advocates need courage in abundance.

The question then becomes: when is your judgement good and when is it bad?

It is never a mistake to consult other advocates not connected with your case. This is one of the greatest strengths of the robing room at court, and of being with other advocates in chambers or the office. So ask around.

ASK AROUND, d'you hear!

But be sure to explain all the relevant details. Another's opinion on only half the facts can be more than useless: it can be dangerous.

You have to develop the faculty - this is really important, heads up - to tell another concisely all the issues, accurately, andfully, including the stuff you may have done wrong, in order to get good help.

You may need to practise this - it goes against a natural instinct to be self­defensive - it is important to accept being WITHOUT ARMOUR in this type of robing room discussion - it is not an opportunity to show off to others, or swagger about with sword in hand, or to slew things nicely in your favour - you have to offer your circumstance, warts and all, to a colleague - honestly, openly, fairly.

You have to make the best points for the other side, and point out why they may damage your own case - you have to show you can see the case from the point of view of your opposition - you have to think like the tribunal, not like the client - we've talked about this before - and above all, you have to listen very carefully to the advice given, and not argue with it - instead understand it, weigh it, explore it.

If you can do this, explore the issues, without armour, seeing things from all sides, than you are being a proper advocate.

Having asked around, there will however occasionally still be times you are unpersuaded by everyone else, and you must still take the point.

Oh dear, you won't be liked.

In that case, you must ENSURE YOU ARE RESPECTED.

An advocate who is not respected is an advocate without credibility. Without credibility, we are unpersuasive.

The quickest way to lose respect is by being quarrelsome with the judge, or with the opposition, by taking mindlessly dull points which the robing room has sternly warned against, by being high-handed with witnesses, condescending to juries, pointed, irritated, arrogant, slightly sneering, and pompous.

Strangely, this really does happen.

Always guard against it. It can sneak up on you, unawares.

To maintain respect, it is only necessary to remember two things:

DEFERENCE to the judge and

POLITENESS at all times - and to everyone.

Good manners are not weakness. Shakespeare - there's the great bard again - said manners maketh the man. They are attractive and generally get you liked.

The reason they work so well is manners make the other person feel comfortable with you particularly when disagreeing - so, remember them - and if you don't have any, learn some - being rude and pushy is not good advocacy, fullstop.

Deference is not weakness. In the face of heavy weather from a difficult tribunal, deference is the only way to proceed. There is no other route.

So - NEVER BECOME ANGRY WITH YOUR TRIBUNAL.

It may make you feel good, but you will lose.

You may think you have every justification, but you will lose.

If you fight your tribunal, someone must lose face. Unfortunately the tribunal will always have the power to decide who that should be - and it will always be you.

However with deference and politeness, no one need lose face, and it becomes so much easier to win the point, and so to turn slowly, slowly, the enormous and seemingly unstoppable seatanker which is the tribunal's mind, if by doing so, no one is embarrassed.

Turning seatankers is not easy - but it can be done. In court it is done with politeness, not with tub-thumping. If you tell a seatanker it is wrong, it will keep sailing at you, and as you are only a dinghy, you are in trouble, even if you are right. So, as we discussed before, always look for a way to make a point without making the tribunal lose face.

If you SAVE THE FACE OF THE COURT, you retain the respect of the court.

If you cannot be liked, make sure you are respected.

You will not be respected if you shout at the tribunal.

A respected advocate, although sometimes not popular, is a credible advocate.

And a credible advocate is a persuasive advocate.

A shouting advocate without respect is useless.

Another way of looking at guarding respect is this:

DEMONSTRATE YOUR COMPETENCE TO THE TRIBUNAL EARLY ON.

If you are thought competent early on, then you can even make some mistakes and not lose respect.

Find a way of demonstrating your competence.

Actively look for one.

Something easy.

And early on.

Show the tribunal you know what you are doing, with something uncontroversial. It might be timetabling for the case. It might be a list of the legal arguments that are to come. It might be correcting a spelling in the papers. Whatever it is, get some credit in the judicial bank with something helpful.

When you do open your mouth, KEEP IT SIMPLE.

Simplicity is more persuasive than big words, long sentences, multiple clauses, conditional subjunctives and other features of verbosity. This last sentence proves my point. It is too long.

Keep it simple. A simple sentence is short. It can be immediately understood. A tribunal cannot be persuaded unless it understands you. The most complicated cases, or the most scholarly ideas, can generally all be reduced to simple sentences. All that is required is forethought.

Lawyers can be truly terrible for big words. It is as if we feel we must demonstrate all our professional expertise, all our learning, and just how clever we are, with a giant vocabulary.

We have spent years learning about things like mens rea, actus reus, maliciousness, recklessness, appropriation, subjective foresight, the balance of probabilities, and so the list goes on. These things are usually meaningless to juries and civilian witnesses. Avoid their use, except of course with the judge.

But even with the judge, only where necessary.

Find other ways of explaining what you mean as if sitting with new friends over a polite Sunday lunch. Do not condescend and show off.

A good tip is to imagine your audience is a class of intelligent 15 year olds who are all doing well at school - pitch to that level, not to a professor, and you will naturally try to simplify what you say, which means you will be easily comprehensible - and if easily understood you are likely to be more persuasive.

It is not insulting to try to simplify, even for the Court of Appeal - but it can be insulting to overcomplicate with big words, and then give the impression your audience is too stupid to understand you - which it isn’t, it's you who's too stupid to simplify - so like I say, think 15.

Police officers often colour their language with odd stock phrases, designed perhaps to convey the impression their evidence is more measured, sounds more scientific, is more carefully researched, and therefore should perhaps carry more weight.

For example, they proceed in northerly directions on mobile patrols, instead of driving down the road; they disembark or alight from their vehicles, instead of getting out of their cars; they give chase and apprehend suspects, instead of running after people and catching them.

These expressions can sound dull.

They can confuse tribunals, and particularly juries.

So avoid the big words and just TELL A STORY.

Stories are not told with vehicles proceeding in northerly directions. Bring out the human dimension - the thrill of the chase, the struggle of the arrest, the speed of the cars, the shouting, the swearing, the excitement of finding a weapon...

To put it another way, GIVE IT LIFE.

And BE BRIEF.

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We often feel we should keep talking to earn more money. Don't.

Do not pad out a submission or a speech or a cross-examination just to give the impression you are trying hard. You will be written off as a waffler.

Keep it simple. Give it life. Be brief.

At this point, we have the stuff of persuasiveness about us.

We are well dressed.

Our head is held up.

We do not hide.

We have control of our hands.

We move purposefully.

Our voice is a bit deeper and slower.

We have eye contact.

We stand like a rock.

At the optimum angle.

We are ourselves.

We do not try to be someone we are not.

We project our personality into the case.

We seek if possible to be liked.

At the very least, we jealously guard respect.

We are polite to everyone.

Always.

We are deferential to the judge.

Always.

We check our judgment against the views of others.

We keep what we say simple.

We keep it brief.

We give it life.

And... here I go again... what we say should be IRRESISTIBLE.

It has been mentioned before, but it should be mentioned again - yep.

IRRESISTIBILITY is the ideal point at which to conclude persuasiveness, even if it seems repetitive, as the last chapter dealt with it too.

Irresistibility is the hallmark of the truly great advocate.

I cannot, cannot, cannot stress it enough - along with eye contact earlier.

An irresistible argument is just that - an argument which is irresistible.

It is the apex of persuasiveness.

The tribunal cannot fight it.

It sweeps them happily, effortlessly, to your conclusions.

No tribunal will accept a suggestion which is esoteric, contrived, or too clever by half, nor any idea which is thrust upon them.

To be irresistible, an argument is four things:

REASONABLE, not emotional - there’s no heat in it,

ELEGANTLY DELIVERED, and

COMMON SENSE.

And fourthly, to be the three above, it requires careful PREPARATION.

Think PERC - prepared, elegant, reasonable, common-sense - to misspell perk, it is a ‘perc’ of the job to reach this zen-like understanding of the true nature of persuasiveness.

Remember - sorry to bang on about it - an irresistible argument is one which seems obvious, and is delivered in a manner which makes the advocate seem incidental, as if almost not there. The cunning feature of the irresistible is that it appears no persuasion techniques are at work.

Oh, but they are - ye Gods, they are!

The techniques are just hidden by careful word choice and skilful, measured delivery.

To be irresistible, there is no need to pontificate as if delivering some fine 1930's oratory.

Court is not war.

For all the law and rules of evidence we learn, for all the learning we apply, the most persuasive feature of any case is if it accords with common sense. If you can find the common sense position in any argument, then you have the beginnings of something irresistible. You then weave around the common sense position careful words and a careful delivery.

Sometimes lawyers lose sight of common sense among all the books. Don't. The winning argument is usually the easy argument. Sometimes, lawyers think things ought to be more complicated in order to justify their years of learning. Some people actually look for the more difficult argument.

Don’t. As a rule of thumb, if it feels difficult, it is probably wrong. The simple argument is often right, precisely because it is simple, and if it is simple, it can be understood, and if it can be understood, it can be persuasive.

So, THE IRRESISTIBLE ARGUMENT IS USUALLY THE EASY, SIMPLE ARGUMENT.

Let’s think math for a moment.

A persuasive argument is an irresistible argument.

Persuasiveness = Irresistibility

Here is a persuasiveness formula for all advocates to contemplate:

(Preparation +.Judgement + Common Sense) (Advice - Armour)

= IRRESISTIBILITY

(Eye Contact + the Optimum Angle)

Let’s call this is Morley S Law.

You want your presentation of both self and of argument to be constrained within four boundaries, like they are the lines of a square.

The boundaries are:

Judgement

Irresistibility ! Invisibility

Common Sense

You want to be the exclamation mark, right in the centre, perfectly balanced between these four lines.

Let’s call this is Morley's Square.

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How often have we read in the law reports, in sometimes long and complicated cases, the apparently simple and irresistible judgments of the great Lord Denning, and said to ourselves, ‘that's obvious, it's common sense'.

The great thing about Lord Denning is how, through simplicity of expression and a healthy dose of common sense, he always looked obviously right, and it was only careful analysis by the House of Lords, now the Supreme Court, which could find flaws in his arguments. You want to be like him.

One can only imagine he must have been devastating, absolutely devastating, as an advocate.