Valuing the Spoken Word: Public Speaking for Lawyers

AuthorSamuel H. Pillsbury
PositionProfessor of Law, Loyola Law School, Los Angeles
Pages517-543

Page 517

It's hard to value the ordinary. Consider public speaking. Giving a talk to a group seems like ordinary speech, just amplified. It's not like singing an aria at the Met, or arguing a case before the United States Supreme Court; it does not require years of training or special physical abilities. Once one gets over the fear factor-a significant hurdle for many, but arguably more a matter of courage than talent-the speaker just speaks, something that most of us have been doing for a very long time.

A moment's consideration, however, reveals the error in this line of thought. How many good public speakers do you know? How many lawyers would you gladly listen to for more than ten minutes? How many more, by contrast, inspire dread and despair when you realize how long they will be speaking? The ability to speak well to groups is far from common, even in our voluble profession.

In this frankly evangelistic essay, I suggest that we should value public speaking more highly, especially public speaking by lawyers outside of litigation. Although many lawyers must do such speaking in their practice, and most could use some help in this challenging endeavor, public speaking is not taught in most law schools today. I think it should be. Teaching the subject would also represent an important step toward reviving one of our oldest arts.

Several years ago I realized that many of my students had real trouble speaking. Both in class and out, they often spoke awkwardly, tentatively, even apologetically when engaged in legal discussion. Regardless of whether they knew what they were talking about-and often they did- they did not sound knowledgeable.1 They were not well-spoken. This was probably nothing new, but my recognition of the problem was, and it prompted new questions about law school education. Because oral skills are important to any lawyer, litigator or non-litigator, perhaps they shouldPage 518 be taught in law school. Immediately I had second thoughts though, wondering if speaking problems were not rooted in early education and popular culture, raising questions about the efficacy of a single graduate level course.

At almost the same time, I developed an interest in American oratory. In teaching American legal history, I assigned speeches by important figures such as Frederick Douglass, John C. Calhoun, Abraham Lincoln, and Elizabeth Cady Stanton. I studied the structure and came to appreciate the power of great nineteenth-century oratory. I also helped create an annual event at our school to celebrate Martin Luther King, Jr.'s birthday. This led to a closer examination of the genius of one of the great orators of the twentieth century. All of this inevitably suggested possibilities for teaching the subject. I thought, if we can teach legal writing, why not public speaking for lawyers? What follows tells of my own efforts to answer that question.

This Essay has two aims. Most immediately, I hope to persuade the reader of the value of teaching Public Speaking for Lawyers in the law school curriculum. In my experience, this is a class that students find enormously rewarding, even in the often dreary last semester of law school. The class brings surprising personal and professional rewards for its teacher as well. Law professors are public speakers, of course, teaching by oral presentations to groups with different levels of legal expertise. It turns out that teaching public speaking will make us better speakers and teachers, generally.

My second aim is to renew interest in public speech. Today we hear occasional laments for the sad state of oratory in politics,2 or sermonizing in the pulpit,3 but not so with respect to the legal profession, and certainly not speaking by lawyers outside of litigation. This does not mean that the current state of legal public speaking is good; it is more likely a sign that no one even thinks to complain. Yet, in even the most mundane setting, a public speaking lawyer can aspire to qualities of presence, clarity, eloquence, and passion that can transform an ordinary speech opportunity into something much more.

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I begin with a quick look at public speaking in the history of Western culture, then take on the practicalities of teaching public speaking in law school (potential objections, structure, challenges, and rewards), and finally provide a sampling of the substance of what might be taught in such a course.

I Public Speaking Yesterday and Today

There was a time, not long ago, that oratory was among the most celebrated forms of human expression.4 Formal speech carried great weight, and its creation and delivery was accorded great attention.5 In literature, politics, and religion, the spoken word was for most of Western history a critical, or even predominant, means of expression.6 From the verse of Homer and Dante to Shakespeare's plays, many of the greatest works of literature were composed with an ear to how they would sound aloud.7

In both the Greek and Roman republics, the ability to speak well was central to statesmanship and was the subject of considerable study and critique.8 Oratory also played a major role in the early political history of the United States, from the revolutionary speeches of James Otis and Patrick Henry, to the rhetorical battles that culminated in the Civil War and included speeches by such legendary figures as Daniel Webster, Henry Clay, John C. Calhoun, Stephen Douglas, and Abraham Lincoln.9

Equally formative for the new nation was speech from the pulpit, from the early Puritans in New England in the seventeenth century, to the evangelism of the Great Awakening in the eighteenth century, continuingPage 520 until today.10 Public speech was also, for much of our history, a popular form of entertainment and education, whether it occurred in the courtroom, in politics, or in public lectures such as those of the lyceum and later Chautauqua movements.11

Oratory has long served as an important means by which the less powerful have gained the attention of the powerful in America. Native American oratory made a deep impression on many European settlers, sometimes positively and sometimes not.12 Female speakers, though frequently discouraged, ridiculed, and sometimes forcibly suppressed, made major contributions to social change on issues from abolition to temperance to women's suffrage.13 Perhaps the most notable form of this oratory, however, was that of African Americans. From the speeches of nineteenth-century abolitionist figures such as Frederick Douglass and Sojourner Truth, to the rhetoric of civil rights figures of the later twentieth century, such as Martin Luther King, Jr. and Malcolm X, the voice of black America has found powerful expression in formal speech.14

Early American law was consistent with this oral tradition, as it privileged oral expression in the courtroom, its most important forum (thenPage 521 more so than today).15 In litigation, the ability to speak eloquently and passionately was prized not only by lawyers who relied upon it to persuade decision makers-judicial or lay-but also by judges who were wont to give long speeches to the juries that they instructed.16

This brief history serves to remind us not only of where we have come from but also how different our situation is today. Two modern developments in particular distinguish contemporary culture from that of our predecessors: first, the transition from predominantly oral to written discourse in many fields of thought, especially law; and second, a shift in the style of oral discourse from formal speech to conversational informality.

During the nineteenth century, American legal culture gradually became more literate and less orally oriented.17 The advent of modern legal publishing made case reports and legal commentaries more widely available, leading to the creation of a large legal literature.18 The availability of these works meant that the primary source of knowledge about law would be text-based rather than the collective memories and understandings of the legally trained. Codification of law also contributed to the elevation of text over speech by placing statutory language at the center of discourse.19 In contemporary law, almost every important argument or action either takes written form or is soon reduced to writing. The modern lawyer-with few exceptions-relies on legal texts for authority, finding essential principles of freedom and order in the written words of constitutions, statutes, and case decisions.20 The spoken word today is a poor cousin to its written counterpart in most legal settings.21

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None of this means that speech has become unimportant. Much of our most important communication in law, as in politics and religion, still involves oral expression. Nothing can compete with speech for immediacy of impact. Oral arguments, whether in or out of court, still determine the outcome of controversies. Speech remains vital to political and religious discourse. Yet, even where speech remains preeminent, its nature has changed. Contemporary scholars have noted that beginning in the early twentieth century, public speech has gradually moved from an ornate, literary, and overtly impassioned form of...

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