Sounds and images of persuasion: a primer.

• Author: Wisotsky, Steven
• Position: Appellate Practice

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 definitively (11) 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...