Sounds and Images of Persuasion: A Primer
Lawyers are, on the whole, a well-spoken group and should be so: Their livelihood depends on words, written and spoken, and they speak far more than they write. A 10-page memorandum of law might contain 3,000 or so words, the equivalent of about 15 to 20 minutes of a spoken presentation. Lawyers speak, moreover, in a wide range of venues outside the courtroom: mediations, arbitrations, zoning hearings, talks to an industry or trade association, testimony before a legislative body, meetings with clients, corporate counsel at a “beauty contest,” and so forth. A commanding, convincing, and engaging voice is essential in the legal profession because so much of lawyers’ work requires speaking to persuade.
This article aims to raise awareness of the words, sounds, and impressions that lawyers make in the course of delivering a prepared presentation. Aristotle’s Rhetoric , “the earliest authoritative analysis of persuasive discourse”1 and argumentative techniques, teaches us that persuasive speech rests on a tripod of ethos, logos, and pathos: credibility, reason, and emotion. The audience perception of each is affected by the way a lawyer states his or her cause.
Perception of the lawyer’s character is perhaps most directly at stake when speaking. Cicero asserted that “much is done by good taste and style in speaking, [so] that the speech seems to depict the speaker’s character.”2 Modern authorities take a similar view:
[T]he sound of the voice apparently has consequences even more significant and far reaching than the words themselves.. . . [H]uman beings hear the voice first, and then, instantly, measure the sound of the voice against the denotative meaning of the words, altering the final meaning. Human beings do not consciously separate words from the sound of the voice that is uttering those words; [but] if the sound of the voice speaking a particular word is weighed against the meaning of that word, the emotional content (emotional shading or vocal effect) always “wins.”3
Ideally, lawyers should speak in a way that catches and holds the attention of the audience in a pleasing manner; the lawyer’s voice, appearance, and delivery should match and reinforce the content of his or her message. The point of the speaking and the speaking of the point should be united. To do that requires a dual approach. First, the lawyer should address the merits by telling a good story, a believable story, a moving story.4 It should have characters, plot, and structure: a beginning (introduction), a middle (exposition), and an ending (conclusion).
Second, the lawyer should present the story with careful attention to communicative skills of voice and body because “so little communication is grounded on bare word content….”5 These skills include effective choices of and transitions in movement, stance, posture, and gesture (kinesics). Likewise, the speaker must seamlessly integrate into his or her message effective cues of voice: pace, rhythm, pitch, attack, volume, inflection, pauses, silences, and other vocal qualities or “paralinguistics.”6
The goal is to increase our ability to please and persuade the target audience, which in this era of the “vanishing trial” — less than two percent of cases filed are tried to a verdict — is unlikely to be a jury.7 Of course, many of the techniques that work in jury trials are valid in other contexts, but it should be remembered that the jury is a special forum in many ways. It becomes a community in microcosm; it is significantly controlled by a third party, the judge, and the level of discourse is relatively low, with some experts recommending that attorneys use vocabulary suitable for an eighth grade reading level.8 Attorneys also need to be adept at addressing more sophisticated audiences, including other lawyers and other professionals.
Although lawyers are on the whole a well-spoken group, there is always room for improvement, particularly for younger lawyers in the earlier stages of their careers. Indeed, the profession has its critics: “The problem is that many lawyers are not good public speakers.”9 Few law schools teach the art of public speaking at all, except in the limited context of voluntary participation in moot court and trial advocacy competitions. Neglect of training the larger student body in effective public speaking is something that advocates for the “lost art” are beginning to challenge and to remedy.10
For lawyers, the oral presentation is a fundamental professional performance. The aim is to persuade — to communicate so as to “sound” authoritative and convincing. In prevailing or failing, the margin of victory may lie in the communicative skill of the advocate, which may equal or even exceed in importance the attorney’s knowledge of the merits of the issue.
The Supreme Court opinions in the landmark confession case of Watts v. Indiana, 338 U.S. 49 (1949), provide an excellent example of the power of well-chosen words of advocacy. They also present the opportunity to move beyond the words themselves to consider the variety of ways in which they might effectively be spoken and heard. This example comes from the arena of litigation, of course, but the principles of effective public speaking transcend the courtroom.
Watts was arrested and held nearly a week on suspicion of murder. At the time, the Supreme Court had not definitively11 banned sustained “third-degree” interrogation as a violation of due process; only coerced confessions — those procured by beatings,12 threatened beatings,13 and other comparable types of police misconduct — would render the confession invalid and inadmissible.14 Watts was not beaten or coerced by threats. But, as the plurality asserted, the police deprived him of “rudimentary needs of life — opportunities for sleep and a decent allowance of food….”15 Thus, until he confessed, “the petitioner was a prisoner in the exclusive control of the prosecuting authorities. He was kept for the first two days in solitary confinement in a cell aptly enough called ‘the hole’….”16 “There was no place on which to sit or sleep except the floor. Throughout this six-day confinement, Watts was subjected each day, except Sunday, to long periods of interrogation.”17
Justice Douglas, concurring, tells an effective story in his account of the week-long breaking of Watts.
The question period would usually begin about six o’clock in the evening. . . . Each question period would extend to two or three o’clock the following morning. These interrogations were conducted by relays of small groups of officers. On several occasions petitioner was given lie-detector tests. Following the evening’s interrogation, he would be returned to the county jail. Even then he was not always given respite until the next evening’s ordeal commenced.. . . It was about two or three o’clock Tuesday morning after about seven hours’ interrogation that petitioner gave the confession used against him over objection at his trial. This was after six days of confinement.18
Justice Douglas also noted that Watts was without counsel.
Of the five opinions in the case, the two of most interest for forensic purposes are the plurality opinion by Justice Felix Frankfurter and the separate concurring opinion by Justice William O. Douglas. It is instructive to compare the words of Justice Frankfurter, the former Harvard Law School professor, with those of Justice Douglas, the former Yale Law School professor, both voting to reverse the murder conviction. Frankfurter: “[T]his was a calculated endeavor to secure a confession through the pressure of unrelenting interrogation.”19 Douglas: “The man was held until he broke.”20
Frankfurter’s words are forceful, if a bit formal, but their persuasive power is greater on the page than when spoken aloud. The sentence lacks ear appeal. It is wordy. One word has five syllables, two words have four syllables, and one word has three syllables. “Unrelenting interrogation” has more syllables than Douglas’ entire sentence. Douglas hits a rhetorical home run. “The man was held until he broke” is a gem of a sentence in many ways. First, it flows seamlessly from the brief, powerful recitation of facts immediately preceding it. Second, its content captures the truth of what happened to Watts in that week. Third, it works well both in writing and when spoken aloud. Fourth, it would be suitable in a variety of forums addressed to a variety of audiences. It might, for example, be used in a police review board inquiry, a legislative hearing on pretrial detention rules, or a civil trial (assuming grounds for suit), and so forth.
In the Watts case itself, that concluding sentence might well have been spoken to the judge on a pretrial motion to suppress, to the jury in arguing that the confession was coerced and should not be believed, to the appellate court on direct review of the conviction, and to the Supreme Court itself in argument on certiorari. Indeed, for all we know — and it would be nice to suppose it so — Justice Douglas borrowed that sentence from one of the lawyers in the case.
Other sentences, of course, might have been deployed. “The man was held; the man was broken” is good, but the absence of“until” entails a loss of emphasis on the passage of time. “The man was seized; the man was held; the man was broken” is also good and has the momentum of a triplet, a series of three clauses.21 But it likewise fails to mention the nearly week-long detention of Watts. Converting it to the active voice still fails to supply the element of time, although it, too, has a nice triple parallelism: “The police seized him, held him, broke him.”
These are all plausible options, but Douglas’ sentence harnesses the expressive powers of the English language. It propels the reader or listener to its inevitable conclusion: Watts “broke.” It consists of just seven pithy words, all but one of them a single syllable. They are easy to say and easy to understand. None are adjectives, consistent with the studies that have shown that “nouns and verbs are the most evocative words.”22 Douglas’ succinct narrative of the police interrogation of Watts uses few modifiers. His account is low-key, yet effective at painting the picture of an “ordeal.” The words he uses are also strong when spoken.
Further, the sentence is poetically rhythmic. Because the stress in “until” falls on the second syllable, the sentence sounds as four pairs of syllables, each pair accented on the second half of the iambic “foot.” The most natural speaking of it, without artifice, would follow its intrinsic rhythm. Da DUM Da DUM Da DUM Da DUM: The MAN was HELD unTIL he BROKE.
Of course, a lawyer’s recitation by strict meter would sound mechanical, stilted. Other paralinguistics apart from meter or rhythm must be considered. Justice Scalia and his co-author assert that “the rhetorical device most undervalued and indeed ignored by lawyers is the pause.”23 Advice from the field of drama is consistent. “Another powerful tool available to you is silence. All actors know that sometimes a pause between lines is not just appropriate but crucial to the scene.”24 Thus, pauses might be introduced to create an element of drama. “The man was held … until he broke.” Or, perhaps, a stronger delivery would arise from pausing after “until”: “The man was held until … he broke.” Or: “The man was held until he … broke.” Adding a momentary silence after completion of that sentence would let it settle in the minds of the listener(s), giving it the emphasis it deserves.
Lawyers must also consider speed and acceleration (or deceleration) and the transition from one speed to another. Consider an analogy: Many current performance cars are equipped with six- and seven-speed transmissions. Speakers likewise can shift among faster and slower vocal gears. Other things being equal, faster delivery is perceived as more persuasive than a slower one. “With regard to one-way communication, as in the address to the jury, the faster talker is generally more persuasive and more favorably regarded by his listener. In addition, the listener tends to learn more from the fast talker.”25 But all such rules of thumb are situational. The climactic Watts sentence does not stand alone; it has context. Words and phrases precede and follow it. “The man was held until he broke” is a line to savor.
Other important elements include pitch and volume. Pitch corresponds to the level of vibrations, measured in cycles per second. (The orchestra tunes to the concert master’s A, 440 cps.) “Your normal changes in pitch, volume, and pace of delivery act as techniques of interpretation in communicating your thoughts and feelings to listeners.”26 All speakers have a natural voice register. A close analogy comes from music, where singers are classified as sopranos, altos, tenors, baritones, and basses. Within the natural or “home” register of a speaker, there is a range of at least one functional octave and nearly two octaves total. A speaker can, thus, modulate within his or her natural range, although the conventions of English speech call for a tonal range more compressed than music.
Within the natural ranges and the conventions of English speech, many authorities assert that “[d]eeper voices sound more persuasive.”27 “There is no doubt that people prefer to listen to low-pitched voices and ascribe stronger personality qualities to the low-pitched speaker.”28 Therefore, Bryan A. Garner specifically advises lawyers at oral argument to “consciously lower the range of your pitch.”29 For Watts, given the solemnity of the assertion that the police purposely held and broke him, a lower pitch would seem more appropriate than a higher one.
What about volume? Shouting is rarely appropriate (never on appeal), and merely raising the volume sharply is easily perceived as anger, irritation, or excessive theatricality. But moderate variations in volume are a proper way to hold the attention of the listener(s). The speaker must achieve a balance. Going softer on an important word provides an alternative method of conveying emphasis effectively: “The man was held until he broke.” Perhaps it would be better to add a pause before the softening: “The man was held until … he broke.” Or yet another variant: “The man was held until … he broke.” In music, this tapering off is called a decrescendo. The opposite approach — a crescendo in the last word or two — is yet another possibility.
Conceptually distinct, yet closely related in practice, is the use of inflection. An inflection is a change in pitch. The absence of inflection is a monotone. Inflection, used judiciously, enhances the expressiveness of the voice. Inflection has power. “When you need real power in your speech, forget volume. Utilize instead rising, falling, and sustained inflections.”30
In general, falling inflection in English speech is used to create a sense of finality (Our job here is finished); to complete an idea (The whole is equal to the sum of its parts); and to signal an end to listening (I have nothing else to say)…. Rising inflection, by contrast, sometimes indicates a question, or makes people want to hear more. Upward inflection can also highlight a key word…. Sustained inflection can be used to create suspense; it defies interruption and cues listeners to wait for the end of the story (He went to the door. He turned the knob. He heard breathing in the room … ).31
Inflections are not artificial. Rather, they “are drawn directly from natural speech”32 and “are not only authoritative, expressive, and persuasive but also real and natural.”33
For Watts, it would seem that a persuasive statement could be made with any of the three inflections, in combination with changes in loudness. But each choice would produce a different impact on the listeners. To demonstrate, try saying the line aloud with sustained rising or falling inflection, with no change in loudness. Then try combinations of inflections, decrescendos, and crescendos. So many possible nuances emerge. The speaker’s choices should, of course, be coordinated with the presentation of the preceding and following statements, and they must be appropriate to the audience and to the occasion.
Presumably, the lawyer for Watts is standing up while speaking. How should he or she stand? “Posture is extremely important.”34 Researchers have found that “stance reflects on your credibility as a speaker….”35 One source recommends projecting self-confidence with “shoulders down and relaxed, your chest open, and your head held high….”36 Another draws lessons from the world of theater:
Your mother was right — stand up straight…. [P]ay attention to your posture. Show respect for where you are and what you are doing…. Actors pay attention to their posture because good posture helps the whole body move more fluidly, and they literally feel more confident…. And, as every actor knows, a person with good posture is more pleasing to watch. Slouching is distracting.37
Good posture is also directly related to good speaking. It “helps you to project your voice without strain because your diaphragm has more room to do its work.”38 A physician with a specialty in voice rehabilitation advises his patients to speak from “the mask” — the area encompassing the bridge and sides of the nose down to and around the lips. projecting from the mask, as distinguished from the lower throat (larynx) or nose alone, the voice “opens up” and becomes warmer and more expressive.39 “Speaking through the mask gives the voice oral-nasal resonance, which gives tone focus, which, in turn, gives the sound aesthetic appeal.”40
Facial expressions must be appropriate to the content of the spoken words. The speaker must take care to avoid inadvertently contradicting his or her position by look or gesture. For example, it would not do for Watts’ lawyer to assert that “the man was held until he broke” while smiling or shrugging his shoulders or looking away from the listeners. On the contrary, gestures should synchronize with the message. “The most important emblematic gesture is ‘honesty.’”41 One expression of it is conveyed by holding the hands a body-width apart with the palms facing up. Hand gestures should be used sparingly and with subtlety. Frequent and exaggerated motions distract the eye of the listener away from the speaker’s face, which should be the focal point of attention.
There are, of course, many other techniques of persuasion that cannot be covered in this short introductory article. They include such rudiments as proper pronunciation (“Internet,”not “Innernet”) and proper word articulation (say “wanna” or “gonna”only for effect). Another aspect of articulation is the relationship of each syllable or word to the others in a phrase or sentence. “The man was held until he broke” might be said in shortened clipped syllables (staccato), normally sustained ones, or elided, with one word gliding into another (legato). Each choice will sound different and should be appropriate to the situation.
It is important to give proper regard to all the methods of persuasive speaking. They are not trivia, tricks, or theatrics. They are time-tested methods of effective communication, many of them based on experience accumulated since the time of the ancients two millennia ago and confirmed by modern social science research. All sources of knowledge in this area agree with Aristotle that the speaker “must give the right impression of himself”42 and “evince a certain character.”43
Still, every lawyer must adapt the classic techniques to match the cause, the audience, and his or her personality. Law schools have neglected this kind of teaching in favor of an overemphasis on doctrine and procedure. Even clinical programs do not generally teach the art of public speaking. Nor do CLE programs. How, then, can the law student and the young lawyer begin to improve? There are several keys to better speaking. First, become a good listener. Listen attentively to the vocal nuances of other speakers in person, on TV, or on radio to decide what (and who) is most pleasing and most persuasive to your ear. Radio is especially instructive because there are no images to distract the ear to the eye; watching while listening (like all multi-tasking) dilutes the intensity of aural concentration.
Second, before making a prepared presentation, choose your words (and silences) with careful attention to how they will sound and look when presented to the particular audience. Revise, refine, and practice. Avoid hyperbole (“great” is greatly overused), redundancies (“continue on,” “the outlook going forward”), excess verbiage (“very unique” is a weaker description than “unique”), and fillers (words or sounds such as “um” and “uh” made to buy time while the speaker thinks). Write out the presentation, and rehearse it aloud. Consider video recording your rehearsal, then watch and listen to it with a critical eye and ear. It is a profoundly revealing (if somewhat painful) experience to see and hear oneself on videotape or DVD. It is also a powerful springboard to self-improvement. Rehearse again. Edit. Repeat.
Finally, in delivering the presentation, never read a script or text; use an outline rather than detailed notes, and make only minimal reference to them so that eye contact is maintained. Much of what you have written down and rehearsed will stick in your memory, lending fluency, ease, and command to the presentation. You will not be speaking a memorized presentation, but the preparations will pay off by facilitating a pleasing balance of structure and spontaneity. Such a speaker will make a good impression with the audience and, as Aristotle teaches us, thereby gain an advantage in persuading it.
1 Michael H. Frost, Introduction to Classical Legal Rhetoric, A Lost Heritage 57 (2005).
2 Michael Frost, Ethos, Pathos & Legal Audience, 99 Dick. L. Rev. 85, 101 (1994), quoting Cicero, Oratore at 328.
3 Celia W. Childress, The Trial Lawyer’s Persuasive Speaking Voice, 81 Am. Jur. Trials 317, §8 (2008) (emphasis in original).
4 See Thomas A. Mauet, Fundamentals of Trial Techniques 45 (2d ed. 1988). See also Christina M. Habas, Please, Tell Me a Story — The Power of Story in the Courtroom, 35 Colo. Law. 95 (Oct. 2006).
5 Frost, Ethos, Pathos & Legal Audience, 99 Dick. L. Rev. at 109 (1994).
6 See, e.g., Tolmage, Peskin, Harris, Falick, Non-verbal Communication in the Courtroom (2008), http://www.stephanpeskin.com/PracticeAreas/NonVerbalCommunication.asp.
7 See Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. Empirical Legal Stud. 459, 459-65 (2004); Florida Office of the State Courts Administrator, Statistical Reference Guide 2006-07, Ch. 5, 16-17 (2007).
8 Jansen Voss, The Science of Persuasion: An Exploration of Advocacy and the Science Behind the Art of Persuasion in the Courtroom, 29 Law & Psychol. Rev. 301, 307 (2005).
9 Janice Mucalov, Better Public Speaking for Lawyers (2008), http://www.cba.org/cba/practicelink/SO/speaking.aspx.
10 Samuel H. Pilsbury, Valuing the Spoken Word: Public Speaking for Lawyers, 34 Cap. U.L. Rev. 517 (2006), advocates teaching the art of public speaking by lawyers “outside of litigation.” Id. at 524. He notes that “public speaking is not taught in most law schools today” but should be as “an important step toward reviving one of our oldest arts.” Id. at 517.
11 Ashcraft v. Tennessee, 327 U.S. 274 (1946), was arguably the first step on that path.
12 Brown v. Mississippi, 297 U.S. 278 (1936).
13 Chambers v. Florida, 309 U.S. 227 (1940).
14 Watts, 338 U.S. at 49 n.2. See also Lisenba v. California, 314 U.S. 219, 239-40 (1941).
15 Id. at 53.
17 Id. at 56.
18 Id. at 56-57.
19 Id. at 54.
20 Id. at 57.
21 The triplet is a classic rhetorical device consisting of a series of three words or phrases, e.g., “life, liberty and the pursuit of happiness.” See The Declaration of Independence (U.S. 1776). Thomas Jefferson is said to have adapted the phrase from John Locke’s triplet “life, liberty and property.” See John Locke, Two Treatises of Government (1690).
22 Voss, The Science of Persuasion: An Exploration of Advocacy and the Science Behind the Art of Persuasion in the Courtroom, 29 Law & Psychol. Rev. at 307 (2005).
23 Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 146 (2008).
24 Kathleen B. Havener, Method Acting for Lawyers, 31 Litigation 48, 52 (2005).
25 Tolmage et al., Non-verbal Communication in the Courtroom (2008), http://www.stephanpeskin.com/PracticeAreas/NonVerbalCommunication.asp.
26 Childress, The Trial Lawyer’s Persuasive Speaking Voice, 81 Am. Jur. Trials at §4 (2008) (emphasis in original).
27 Bryan A. Garner, The Winning Oral Argument 21 (2009), quoting Iain Morley, The Devil’s Advocate: A Short Polemic on How to be Seriously Good in Court 46 (2005).
28 Id. at 21, quoting Celia W. Childress, Persuasive Delivery in the Courtroom 320 (1995).
29 Id. at 20.
30 Havener, Method Acting for Lawyers, 31 Litigation at 52 (2005).
31 Id. (emphasis in original).
34 Celia W. Childress, Body Language for Trial Lawyers: Persuasive Gestures, Postures, and Foot Movement in the Courtroom, 84 Am. Jur. Trials 1, §68 (2008).
35 Childress, The Trial Lawyer’s Persuasive Speaking Voice, 81 Am. Jur. Trials at §38 (2008).
36 Carolyn Dickson, The Power of the Spoken Word: Know How — And When — to Speak Up, 17 Legal Mgmt. 44, 48 (1998).
37 Havener, Method Acting for Lawyers, 31 Litigation at 50 (2005).
39 See Dr. Morton Cooper, Change Your Voice, Change Your Life: A Quick, Simple Plan for Finding & Using Your Natural Dynamic Voice 15 (1985).
41 Id. at §52.
42 Frost, Ethos, Pathos & Legal Audience, 99 Dick. L. Rev. at 100 (1994), quoting Aristotle, Rhetoric at 91.
Steven Wisotsky has since 1980 been a tenured professor of law at NSU, where he teaches appellate practice. He is the author of Professional Judgment on Appeal (Carolina Academic Press 2009) and was, for six years, of counsel to Zuckerman Spaeder, LLP (Miami office). This article is based on a book in progress on public speaking for lawyers. The research and editorial assistance of Aaron Humphrey and Nathaniel Dutt (NSU 2011) is acknowledged.
This column is submitted on behalf of the Appellate Practice Section, Dorothy F. Easley, chair, and Tracy R. Gunn, Heather M. Lammers, and Kristin A. Norse, editors.