To Gesture Or Not To Gesture

“Some people cling to an old-fashioned, post-Victorian belief that gestures are inappropriate for public speaking. Law students and attorneys are often told to place their hands on the lectern or at their sides, because gestures distract the listener.” This observation comes from Brian Johnson and Marsha Hunter, in their recent book, The Articulate Attorney: Public Speaking for Lawyers (at p. 25).

I know I’ve received conflicting advice on this topic. And I’ve been on the receiving end of speeches in which the speaker gestured so freely and wildly that it was distracting and he came across like a crackpot. On the other hand, a speaker who remains so unnaturally still and wooden appears to lack both passion and conviction and, in most instances, will utterly fail to engage the audience.

Assuming you want to engage your audience, whether it is a jury deciding your client’s case, a panel of appellate justices, or a room full of potential clients, it’s a good idea, then, to make an earnest effort to not only use gestures, but to use them effectively. Lucky for us, Johnson and Hunter’s new book offers some valuable guidance in a section entitled “What Do You Do With Your Hands?”

First, they point out that “[g]esturing is not emotional or theatrical, but logical.” Id. at 27. “Gestures suit, or fit, the words being spoken, and the words logically fit the actions of our hands.”  Id. To achieve this logic, they advocate careful formulation of the first sentence of your speech. Even if you improvise much of the rest, it is a good idea to choose and practice the words with which you will begin, then practice fitting gestures to these words until you settle upon those that are most suitable. This allows you to “jump-start” the style of gesturing you will employ for the balance of the speech. As Johnson and Hunter write:

“At the very beginning of a presentation, the instinct to gesture can be as dead as a car battery at twenty below zero, frozen by self-consciousness, anxiety, or the erroneous belief that gestures are distracting. To jump-start your gestures, think of your brain as the energy source. Connect the metaphorical jumper cables of conscious thought to your instinct to gesture and turn the key. Deliberately gesture at the beginning, and suit the action to the word. Make sure your gesture engine is running.” Id. at 28.

Johnson and Hunter also advocate a style of gesturing that uses large gestures, involving the entire arm, which “move or flow through an area in front of the body called the ‘zone of gesture.’ This zone is a large space approximately two feet tall by four feet wide. It extends vertically from the waist to the nose.” Id. at 29. These larger, whole limb, gestures “avoid a common pitfall of nervous speakers: gestures with just wrists or forearms.” Id. at 31.

Finally, they address the question of what to do with your hands when you are not gesturing. Rather than the awkward crotch-blocking “fig leaf” position, in which the arms are fully extended, or the frigid, white-knuckled gripping of the lectern, Johnson and Hunter suggest we use what they call the “ready position.” Hands are “loosely touching at waist height. Hands and forearms are energized and ready to go, not pressed against the abdomen. The position is loose, not tight. A little bit of space separates the forearms from the abdomen.” Id. at 33. A principal advantage of this “ready position” is that, when you are not actively and intentionally gesturing, your hands become “invisible to most observers.” Id. at 35.

If none of this sounds particularly revolutionary, that’s probably because it’s not. As noted by Johnson and Hunter, that marginally famous writer Bill Shakespeare, speaking through the title character in Hamlet, instructed the players to “Suit the action to the word, the word to the action.” Id. at 27. Makes sense, doesn’t it?

Which Of Us Will Go The Distance?

I had a great dinner last night with someone I’ve known off and on for several years and who qualifies as one of the true luminaries of the Los Angeles Bar. Part of what made it a special meal was the food (lemon white wine-poached branzino). But a bigger part was our jovial conversation and his stories about his practice and his travels. It was such an uplifting discussion, in fact, that I spent some time today reflecting on it and I think I’ve put my finger on why I came away feeling so good. It’s this: my dinner companion was first admitted to practice law in January, 1969. Yet, now, after more than 44 years of lawyering, he still enjoys it!

He actually said, “I love what I do.” I don’t know about your friends, colleagues and acquaintances, but I don’t meet too many lawyers who’ve been doing this even just 25 or 30 years who still really seem to enjoy it. Or who enjoy it enough to declare, without the slightest hint of irony, “I love what I do.” Do you love what you do?

Like those researchers who desperately want to unlock the secret to longevity in a culture like Sardinia, Italy or Okinawa, Japan, his words caused me to wonder whether he had stumbled upon some little known formula to continuing to find law enjoyable after over four decades. I haven’t uncovered any secret formula, but after some thought I’ve identified a few factors, habits or traits, if you will, that could help explain how my friend has managed, not only to go the distance, but to do it joyfully. Without further throat-clearing, here’s what I’ve gathered:

Balance

As tempted as you might be to snicker at the notion of “work-life balance,” particularly now when everybody is supposed to feel lucky just to have a job and the new buzz phrase is “lean in,” don’t dismiss this too quickly (that includes you, too, Scott H. Greenfield). When my friend described his notion of balance, it did not mean always leaving work at a “reasonable time” so he can enjoy his life and time with family. His practice is litigation-oriented, specialized and in-demand, so he’s not working what used to be called “banker’s hours.”

But he did stress that he both “works hard and plays hard.” His meaning was that, while there may be some nights that he’s responding to emails in the early morning hours, there are lots of other nights when he’s having dinner with intriguing folks like me. This is the kind of balance I, too, have tried to find in recent years, recognizing that it’s not always going to work to leave the office at 6, or 7 or whenever. But for every time I get stuck working into the night, I make sure there are many more nights when I’m doing something I really enjoy–like spending time with my daughter.

Vacation/Travel

When I first met this man in 1996, he told me he routinely took 5-6 weeks off annually, and spent much of it traveling abroad. When I reminded him of this comment last night he smiled and said, “now it’s more like 11-12 weeks off.” Wow. Just wow.

I fully recognize that most lawyers simply cannot, financially or logistically, afford to take 2 or 3 months off every year. So bear with me, because my point is not that we should all make that a goal, but something a little more fundamental.

For my friend, he loves time off and he loves to travel. So he structured his professional life so that it enables him to maintain a thriving practice while taking a substantial (by anyone’s measure) amount of time off. He is also really good at what he does, so he is in demand and charges a premium.

But, here’s the reason I bring this up: he has found something he loves outside the law and he pursues it and will not let anything, including his practice, prevent him from doing that thing. And we can all learn something from that. We don’t have to disappear for months at a time and visit faraway lands. But I do think having a life, interests and activities outside the law–and making time to enjoy them–may be one of the important keys to a long, enjoyable legal career. One that can last over 40 years! But it won’t happen without some serious effort toward that goal.

A Team

If you’re wondering how my friend can escape a thriving law practice for months at a time, the answer is that he doesn’t do it alone. When I met him in 1996, he had an associate and a fantastic paralegal. Now he has a few “of counsel” lawyers and a paralegal. Again, he didn’t build this practice overnight, but as it grew he early recognized the need for help. We talked briefly about his team last night and he was complementary of their skills, which led me to believe that, when he takes time away, he is confident that his clients’ needs are being protected just as if he were in town.

Here, again, vetting and training a team who could competently manage his practice when he travels must have been a challenge. But, knowing he wanted a life outside the law, he spent the necessary time and energy. I don’t know, perhaps he was also very lucky with the people he found and hired. Perhaps he treats them well. But the upshot is that he’s able to take (a lot of) time away and do so comfortably. I’ll leave it to you to ponder whether this is one of the keys to his longevity.

A Practice He Loves

I do relish a good circular argument. But, the fact is, my friend loves what he does because he does something he loves. If you don’t find an area of the law that you “love” to practice now, you’re probably not going to love it in 25, 30 or 40 years. And I don’t think you have to love it at all, but if you’re going to spend four decades doing an activity many hours a week, it will really help if it’s something you find stimulating. I will readily admit I don’t love my practice, but I do find it stimulating, and I’m hoping it will stimulate me at least until my daughter finishes college.

Have I discovered the career longevity equivalent of Sardinian olives? I don’t know. But I can point to one person whose been practicing for 44 years and is still going strong. I hope I will be able to say as much.

Give Your Brief Headings The Marquee Treatment

A colleague who recently passed the California Bar Examination hosted a group of us to a round of drinks and the talk turned to bar examination grading. Specifically, how little time the graders spent on each essay (I think it was a matter of seconds). Our group included a lawyer who had worked briefly as a tutor to recent (or not so recent) law school grads on how to pass the bar. I learned for the first time how much emphasis is placed by the graders on headings, or portions of exam answers that are underlined or set apart some other way. She explained that, because the graders spend such a minimal time on each essay, headings or other highlighted matter take on a special importance.

I’ve been told this is not so unlike the limited time and attention some judges and their clerks spend reading legal briefs, underscoring the importance of well-chosen and composed headings. I seem to recall hearing somewhere that some judges and clerks sometimes go no deeper in a brief than a review of the headings.

Obviously, then, headings can be particularly important in legal writing. I consulted legal writing guru Bryan Garner’s The Elements of Legal Style, and found that he offers three issues/rules to keep in mind when crafting headings and subheadings. Here’s what he says:

“1. Do not rely on headings to provide transitions. You still need to prepare the reader–perhaps with a transitional word (therefore) or sentence (That brings us to the final point).

2. Be sure that any headings you use convey a definite message to the reader. A vague or ambiguous heading defeats itself.

3. Shun generic headings, such as ‘Facts’ or ‘Background,’ ‘Analysis,’ and ‘Conclusion.’ These often falsely suggest that the facts are discrete from the analysis, or that the analysis is discrete from the conclusion. Unless you are writing in a medium that requires formulaic headings, such as the ‘Statement of Facts’ in a brief or student memorandum, such headings give the impression that the writing follows a formula. And you may even make it formulaic by failing to analyze what organization best suits your purposes. Make your headings serve your text, not vice versa.” (pp. 77-78)

“In addition,” Garner suggests, “make [headings] . . . uniformly brief.” Id. at 78. My girlfriend in law school worked as a legal secretary (in addition to her full-time law school case load). I recall asking her to show me some professionally written legal briefs from her firm. What struck me was both the brevity and informality of the headings, particularly in contrast to the formal headings we were being taught to write by our legal writing professors (some of whom, I’m thinking, had never actually filed a legal brief with a court). I was stunned by one real world opposition which featured a heading that merely said: “This Motion Is A Complete Waste Of Time.” While I don’t think any reader would find this heading compelling, it does have sense of immediacy–of getting to the point–that the lengthy, formal headings we learned to write in law school sorely lacked, but that most readers appreciate.

Perhaps when we penetrate to the farthest reaches of this era of Twittering Tweet-like communications, where brevity is not only prized, but required, there may come a time when 140 characters is all you get. Better make those headings count!

Other Ways To Cope With That Pesky Reptile

I’ve previously written here about the Reptile litigation strategy, and here about how to prepare a witness for a Reptile deposition. In this post, I want to explore how to challenge the Reptile strategy using legal principles. Credit for explaining these strategies goes to Columbia, South Carolina lawyer David Marshall, who wrote about the Reptile strategy in the April, 2013 issue of For the Defense.

According to Marshall, “Every jurisdiction recognizes some version of the golden rule, which disallows any argument asking jurors to put themselves in the shoes of a party.” Id. at 68. The prohibition is premised on a view that such arguments are designed to destroy juror impartiality and encourage jurors to decide a case based on personal interest and bias.

Marshall refers to Reptile as a “veiled” golden rule argument “because it seeks to have jurors decide a case not on the actual damages sustained by the plaintiff but rather on the potential harms and losses that could have occurred within the community, which includes each juror and his or her family members.” Id. 

Marshall also points out that an outsized punitive damage verdict that results from jurors punishing a defendant for potential infliction of hypothetical damages, beyond what the plaintiff actually suffered, is vulnerable on due process grounds. The Reptile strategy attempts to appeal to survival instincts and a juror’s innate urge to protect her community. Marshall writes that “the Due Process Clause specifically prohibits punitive damage awards based on potential injuries that could have been inflicted on other members of the community.” Id. (emphasis in original).

Another avenue Marshall discusses involves the prohibition, in most jurisdictions, of “other similar incidents” evidence. Again, the Reptile is concerned, not only with what did occur in the case at hand, but what hypothetically could have occurred based on the defendant’s blameworthy safety practices. There is little difference, in terms of evidentiary value and risk of prejudice, between an “other similar incident” and a hypothetical similar incident that could have occurred (but fortuitously didn’t).

Marshall points also to an argument available in certain jurisdictions barring a lawyer in closing argument from urging the jury to “send a message” to the defendant, or to “act as the conscience of the community.” Id. at 74. Since this is exactly what the Reptile strategy is based on, there may be  a basis for exclusion/preclusion of Reptile tactics on this basis, as well.

Finally, Marshall suggests that, if efforts to exclude or limit Reptilian trial tactics are unsuccessful, it may be possible to dilute the effectiveness of the Reptile strategy by explaining it to the jury. Marshall suggests it may even be appropriate to “compliment the plaintiff’s attorney in . . . closing and praise his or her ability and zeal” (Id.), using this as an opportunity to explain the psychology of the Reptile strategy and why they should not get too carried away by it.

See, there’s more than one way to skin a . . . er . . . lizard.

What Kind Of Opposing Counsel Are You?

In all but the rarest instances, I come away from a lawsuit with a clearer memory of my opponent’s lawyer than of the opponent. When I get involved in a new case, I’ll often do some research to see who I’m up against. Is she a solo or a member of a firm? Have my colleagues dealt with her in prior cases, or do I know anything about her by reputation (which, as we know, can be grossly inaccurate). As we wind through the case, I form or refine my impression of her. Generally, by the end of a case, we part ways either as friends or at least as professionals. Even in those instances in which I’ve had to be aggressive, I try not to let it get too personal.

That’s not to say I always finish a case feeling “respect” for my opponent. Let’s face it, some lawyers just don’t deserve it. And, while I don’t like to generalize, I can identify four categories of opposing counsel for whom I don’t usually feel respect at the end of the day. Are you one of these?

The Overt Asshole

This post (the entire blog, for that matter) is built on the assumption that lawyers are not per se assholes. If you hold the opposite view, then I’m not writing for you–go back to playing Farmville on Facebook.

It’s not hard to gain entry into this category, at least in my book. Refuse courtesy extensions, yell at me or my client during a deposition, make threats you know you could never carry out, insult my client, my ethics or my skills, talk down to me . . . You get the picture. What’s surprising is how seldom I’ve finished a case and branded my opponent an Overt Asshole. Perhaps the bigger surprise is that I can think of more lawyers representing co-defendants who qualified for this title than lawyers representing parties who sued my clients.

The Liar

Ah, the truth-challenged. Even nations at war are expected to adhere to a code of ethics. There’s a special circle in hell for those that don’t, and the same is true for lawyers. Telling lies is just dirty pool and should never be rewarded. Even on those instances in which it could be harmless, it degrades our profession. I’m not talking here about Bill Clinton-style fibbing under oath (though that sucks, too, but for different reasons). I’m referring to making blatant misrepresentations to the court orally or in papers. I’ve found there is often an overlap between The Liar and the Overt Asshole.

The BFF

Some lawyers think it’s strategically advantageous to be your Bestie from the get-go. This isn’t to say a genuine friendship can’t grow out of litigating a case together. I can count a handful of former opposing counsel whom I consider true friends. But when there’s an obvious strategic motive behind playing the role of best friend while litigating a case–and it’s usually possible to tell if that’s what’s going on–then the BFF is really little different from The Liar, right?

The Legend-In-His-Own-Mind

This is the guy who needs a 7-series BMW with extra trunk room for his ego. This is the guy who did pretty good in a trial once and will force his opponents to re-live those moments of glory in Technicolor. This is the guy who boasts to his opponents during deposition that he’s “a different breed.” (True story!) You don’t want to see him in action in front of the jury in this case! You know the type, right? If you don’t, you’ll encounter him some day. There are crossover possibilities here with the Overt Asshole, as well.

Do any of these describe you? In the interest of full disclosure, I’ll admit to being a little bit of each–except The Liar–at one point or another during the last 20 years. But I guarantee those weren’t my finest moments.

One Way To Object Without Garnering Juror Resentment

One of our most important jobs during trial is to object, when necessary, to prevent the improper admission of evidence. But doing this job, even properly, is not without its risks. Chief among these is the risk of alienating jurors or garnering resentment because it is obvious–assuming the objection is sustained–that you have succeeded in hiding some quantum of information from the jury. After all, they’ll wonder, if your client’s case is so obviously a winner–as you said in your opening statement–why this need to hide facts from us?

As always, the wise Professor McElhaney has something to offer on this topic. In his Trial Notebook (3rd. Ed.), he suggests we learn and practice how to make objections understandable to the jury. He even suggests they can be made appealing. He writes:

“It is true that objections are supposed to be made to the bench, not to the jury or opposing counsel. In fact, addressing either your adversary or the jury is an invitation for a reprimand from the judge. On the other hand, there is no rule against making objections so that the jurors understand the basis for your objection and perhaps even sympathize with your position, rather than concluding you are pulling some lawyer’s trick to keep them from hearing the whole truth.

Essentially the idea is to state a legally sufficient objection–one that is specific and accurate–which a layman can understand and appreciate, and do it in five to ten seconds. For example, ‘Objection, leading,’ may win a ‘sustained’ from the judge, but will not really help the jury understand what you have done. ‘Objection, Your Honor, leading. Counsel is putting words in his witness’s mouth,’ lets the jury see that your adversary has been doing the testifying.

The time limitation is very important, since if you take too long, you are inviting attack for making a speech. With some work, even the most difficult concepts can be understandably compressed in a short time. Instead of saying, ‘Objection, hearsay,’ you might say, ‘Objection, Your Honor, the jury can’t tell whether some casual bystander this witness overheard was telling the truth. This is hearsay.’” (p.327)

McElhaney goes on to point out that, while it may seem like fine trial lawyers who make well-phrased objections do so extemporaneously, the truth is that such language is generally developed and practiced in advance.

Could The Legal Profession Ever Become Extinct?

A Dodo or Licensed Lawyer Circa. 2075?

Could licensed lawyers ever go the way of the Dodo and S & H Green Stamps?

I came across this recent article in the Wall Street Journal about the growing interest by non-traditional law school students in signing up for selected law school courses and seeking non-JD graduate-level law degrees (i.e., a Masters) in discreet areas of the law, such as health care, etc. The article got me wondering whether anything could ever bring about a long-term shift away from a world in which graduate students incur huge debt to obtain JD degrees, sit for an arduous 18 hour bar examination, get their license, only to learn that: (1) there are too few available jobs for newly-minted lawyers; (2) many lawyers will only use a fraction of the information we learned during law school; and (3) although we are “fiduciaries” only about 31-38% of the public trusts their lawyers–anything could cause a glacial shift away from this world into one in which tasks and responsibilities traditionally handled by licensed lawyers are done instead by non-lawyers who may (or may not) have specialized training to enable them to assume that responsibility or perform that task.

While I’m just musing, some wonk has surely crunched the numbers and stands ready with a handy statistic about how much this change has already occurred. After all, NOLO has been around since the 1970s. LegalZoom and similar providers have (apparently successfully) developed products and services specifically designed to omit lawyers from supposedly “simple” transactions such as corporate formation, or the drafting of a trust or will. Sophisticated organizations, including realtor associations, already provide for arbitrations with non-lawyer industry experts serving as the neutrals to resolve a dispute. I also know of potentially expensive and protracted divorce disputes that were resolved with reduced time, expense and pain through the involvement of psychologist-lawyer mediation teams.

Let me be clear about what I am not talking about. Professors, bloggers and writers have discussed ad nauseam the disruptive and earth-shaking changes in the business of law (along with the “business” of teaching lawyers their trade) which have largely occurred over the past half-decade. I neither pretend nor want to contribute to this discussion. This is not about The New Normal, whatever you may think of that label. I don’t care whether or how NOLO or LegalZoom might impact the annual Profits Per Partner at Skadden (it won’t) or the profits of a sole practitioner in Visalia, California (it might), or will cause some random law school to shut its doors.

I’m talking instead about the future of our profession. The future of the idea that we are a civilization that needs expensive intermediaries, people specially trained to do our thinking, drafting and arguing for us. That we are a civilization in which two people who reach an agreement need two (or more) comparatively expensive people to reduce it to writing. Or that we lack the ability to argue effectively on our own behalf, without a mouthpiece, about anything more serious than a small debt or a traffic ticket. Are we still going to be that civilization in the future? Or could we ever evolve into a civilization in which lawyers are those jokers they talk about in history books? “I once saw one!”

What, if anything, does it say about the interest, ability and willingness of the public to commit to become more do-it-ourself with regard to tasks and responsibilities formerly handled exclusively by licensed lawyers? By the same token, what could it say about the interest and willingness of people who once thought they wanted to be a licensed lawyer to elect instead to focus their education on a sub or sub-sub-speciality of law (saving $100,000 + in tuition in the process)?

I’m not suggesting any of this could happen soon. Our systems are not ready for it. For example, while citizens are presently free to represent themselves in civil and criminal courts, I can’t even begin to suggest that it’s a good idea for anybody. I’ve been practicing in courts for 20 years, but it would never (ever) occur to me to represent myself in any criminal matter beyond a speeding ticket (and even then). But, like all things, this could change. If criminal and civil courts ever became pro se-friendly . . . (Don’t laugh. Stop it.)

I’m also not taking the position that a civilization without a legal profession would be better or worse than ours. Just different.