Law360 (October 29, 2020, 4:10 PM EDT) —
With the nation in the throes of a political frenzy, on the eve of what some say is the most important election of our lifetimes, political rhetoric is everywhere. There are important lessons to be learned for litigators from these speeches and debates — not only from current candidates, but from great orators of the past.
Think of a speech that moved you. Chances are it made use of specific techniques that are standard tools of the trade for speechwriters and politicians. At bottom, politicians and litigators share the same goal: to persuade. So how can the techniques of political speech writing — the soaring rhetoric that not only convinces us, but moves us — be adapted for a litigation context?
Here, we as litigators and former speechwriters share five tips useful to any litigator — and equally applicable to oral advocacy, case strategy and brief writing.
1. Tell a story that makes the audience care, using persuasive imagery.
Part of what made the Obamas’ speeches so memorable was the storytelling. Former President Barack Obama and former first lady Michelle Obama approach every speech as an opportunity to tell a story, often using concrete, tangible examples to illuminate intangible issues. Those images, which are equally helpful in oral advocacy and brief writing, can resonate in a way that blander language cannot, as when the former president said during a 2008 primary speech:
It was a creed written into the founding documents that declared the destiny of a nation: Yes, we can.
It was whispered by slaves and abolitionists as they blazed a trail towards freedom through the darkest of nights: Yes, we can.
It was sung by immigrants as they struck out from distant shores and pioneers who pushed westward against an unforgiving wilderness: Yes, we can.(1)
Similarly, speaking to a West Berlin crowd in 1987, then-President Ronald Reagan famously did not tell Soviet leader Mikhail Gorbachev to end the Cold War, he issued a concrete challenge to “tear down this wall.”(2)
The current candidates for president make use of vivid imagery, too. For example, former Vice President Joe Biden said in his recent speech at Gettysburg, Pennsylvania: “We have too bright a future to leave it shipwrecked on the shoals of anger and hate and division.”(3)
And President Donald Trump described in his August convention speech “American ancestors” who “braved the freezing winters, crossed the raging rivers, scaled the rocky peaks, trekked the dangerous forests, and worked from dawn till dusk.”(4)
That same principle holds in litigation. A winning litigation strategy tells the client’s story in a compelling way to persuade the judge and jury to care about, and then adopt, the client’s narrative.
Even in litigation about two multinational corporations fighting over money, litigators must find a way to make the judge and jury emotionally invested in their side’s cause. Effective counsel can cast run-of-the-mill trade secret litigation as protective of the American drive for innovation, for example.
Likewise, painting a picture for the judge, who reads thousands of briefs, and the jury, which listens to days of testimony, can keep them engaged and invested and help them understand more viscerally the story you’re trying to tell.
2. Use rhetorical devices.
Countless rhetorical tricks and flourishes, passed down through the ages, also can enliven a litigator’s prose and invigorate oral advocacy. Here are some examples.
Political speakers often draw contrasts to sharpen their points, as when Michelle Obama said at the 2016 Democratic National Convention, “When they go low, we go high.”(5)
Or when Biden recently promised: “As president, I will embrace hope, not fear. Peace, not violence. Generosity, not greed. Light, not darkness.”(6)
Good litigators can similarly define their goals as the opposite of the other side’s.
Repetition is another common speech writing tool for emphasizing key themes, seen when Biden’s running mate, Sen. Kamala Harris of California, stared into the camera at the vice presidential debate and said: “If you have a preexisting condition — heart disease, diabetes, breast cancer — they’re coming for you. If you love someone who has a preexisting condition, they’re coming for you. If you’re under the age of 26 on your parents’ coverage, they’re coming for you.”(7)
In litigation, repeating strategic themes and phrases throughout the case helps the judge internalize your arguments. Research shows that repetition is critical for memory, so repetition of key phrases at trial can impact whether the jury retains your main points.
To keep things interesting, consider varying your formula for repetition, as speechwriters do.
Anaphora — repeating words at the beginning of successive clauses or sentences — emphasizes a particular subject. For example, Reagan said in Berlin: “Freedom leads to prosperity. Freedom replaces the ancient hatreds among the nations with comity and peace. Freedom is the victor.”(8)
Alternatively, anadiplosis — repeating the last word of one clause or sentence as the first word of the next clause or sentence — adds emphasis in different syntax, as when then-President George W. Bush said shortly after 9/11, “Our grief has turned to anger and anger to resolution.”(9)
Power of Three
We’re all at least subconsciously aware that political leaders land points with the power of three, from Julius Caesar (“Veni, vidi, vici,” meaning “I came, I saw, I conquered.”)(10) to Bush (“Never tiring, never yielding, never finishing, we renew that purpose today.”).(11) While you should be careful about overusing some rhetorical devices in writing, the power of three is a trick that works equally well for briefs as for oral advocacy.
3. Speak like a human being.
Speaking and writing are starkly different exercises, but lawyers often fall into the trap of speaking as they would write — or, even worse, as no one would speak or write, which can turn off judges and juries alike. To make your oral presentations easier on the ear — and, thus, easier to follow and more persuasive — consider these pointers:
- Be conversational. Think about the difference between “my client, a female 25 years of age with two children” and “my client, a devoted 25-year-old mother.” Help jurors, in particular, relate to the story you are telling.
- Use simple words. Especially in oral advocacy, avoid using a 50-cent word when a nickel word will do — for e.g., “use,” not “utilize”; “see,” not “observe.” As with a stump speech, the goal is to connect with the audience, and fancy language can get in the way.
- Shorten your sentences. Short, declarative sentences are easy to understand and remember. While it can be useful to vary your delivery between shorter and longer sentences, if you have to take a breath in the middle of your sentence, jurors and judges are unlikely to remember the beginning of the sentence by the time you get to the end.
Equally applicable to both speaking and writing is the need to eliminate jargon.
In the Obama White House, for example, the speechwriters had a pact never to use the phrase “innovative public-private partnership,” and once even contemplated whether they would be willing to unplug a teleprompter if needed to avoid it being said aloud. Instead, the speechwriters would actually describe what the partnership would do: “We’ve teamed up with companies to make sure our veterans and military families can find good jobs and advance in their careers.”
Litigators should follow suit. Some legal terms may be unavoidable, and there may be essential technical terms in expert or industry insider testimony. But judges and juries rarely think in those terms, so such jargon can obscure your message and interfere with the primary goal of connecting with your audience to tell a story they can relate to.
For example, if your client submitted a new drug application to the U.S. Food and Drug Administration, don’t tell the judge or jury that your client “submitted an NDA to the FDA.” Instead, say your client “applied for government approval of a new drug.”
4. Always maintain your credibility.
From the beginning of a lawsuit until the verdict and beyond, a litigator’s credibility is paramount. Likewise, a politician has little hope of persuading her constituents if they don’t believe a word she says. Therefore, political speechwriters know that fact-checking and accurately characterizing facts are crucial to clear a path to persuasion.
In litigation, if a judge or jury cannot trust your assertions about the facts or law, your advocacy will be unlikely to move the needle. Litigators can build their credibility by communicating candidly with the judge, describing accurately the facts and authorities in briefs, and keeping their word. Effective litigators know, for example, that it is better to risk understating a point in an opening statement than to promise the jury evidence they cannot deliver.
And, of course, a litigator — like a politician — must find and use his or her own style before the jury. Adopting another’s style usually comes off as inauthentic at best, and untrustworthy at worst.
5. Revise, synthesize and practice.
No speech comes out of the typewriter ready for delivery. Reagan’s Berlin speech went through many iterations, and didn’t include “tear down this wall” until it was nearly final.(12) Neither should a litigator expect his first draft — of anything — to be perfect.
Just as speechwriters do, litigators should aspire to shorten their briefs and oral presentations. Longer does not mean greater impact: Few remember who spoke for two hours before then-President Abraham Lincoln delivered his two-minute Gettysburg Address.(13) If a line does not help get your core message across, cut it.
More generally, you should know your core message and keep it at the forefront. Good speeches — or briefs or oral arguments — can be summarized into a single crystallizing sentence, like former President John F. Kennedy’s immortal words during his inauguration speech: “Ask not what your country can do for you — ask what you can do for your country.”(14)
Consider whether your written or oral advocacy expresses that one-sentence description. If not, there’s more work to do. And be especially sure that your introduction reflects that one-sentence argument, which is why it’s often helpful to draft the introduction last. For oral presentations in particular, it can also be helpful to reduce your core argument further to a snappy slogan, as we often see in politics — think “just say no” or “yes we can.”
Finally, rehearse your oral presentations relentlessly so you can deliver them smoothly. Skilled politicians certainly do this; Barack Obama’s preparation was such that he delivered his breakout 2004 convention speech mostly from memory.
In short, even when the election-year hubbub recedes, litigators should implement the lessons of political storytelling. Their clients will thank them.
Lauren Papenhausen is a partner at White & Case LLP.
Julian Canzoneri is an associate at White & Case and a former speechwriter for the speaker of the Massachusetts House of Representatives.
Dave Cavell is an attorney and a former presidential speechwriter in the Obama White House.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
(1) Barack Obama’s New Hampshire Primary Speech, N.Y. Times, Jan. 8, 2008, https://www.nytimes.com/2008/01/08/us/politics/08text-obama.html.
(2) Rick Hampson, JFK, Reagan words helped bring down Berlin Wall, USA Today, Nov. 9, 2014, https://www.usatoday.com/story/news/world/2014/11/09/jfk-reagan-speeches-berlin-wall-25th-anniversary/18421393/.
(3) Remarks by Vice President Joe Biden in Gettysburg, Pennsylvania, JoeBiden.com, Oct. 6, 2020, https://joebiden.com/2020/10/06/remarks-by-vice-president-joe-biden-in-gettysburg-pennsylvania/#.
(4) Glenn Thrush, Full Transcript: President Trump’s Republican National Convention Speech, N.Y. Times, Aug. 28, 2020, https://www.nytimes.com/2020/08/28/us/politics/trump-rnc-speech-transcript.html.
(5) Transcript: Read Michelle Obama’s full speech from the 2016 DNC, Washington Post, July 26, 2016, https://www.washingtonpost.com/news/post-politics/wp/2016/07/26/transcript-read-michelle-obamas-full-speech-from-the-2016-dnc/.
(6) Remarks by Vice President Joe Biden in Gettysburg, Pennsylvania, JoeBiden.com, Oct. 6, 2020, https://joebiden.com/2020/10/06/remarks-by-vice-president-joe-biden-in-gettysburg-pennsylvania/#.
(7) Fadel Allassan, Harris: If you have pre-existing conditions, Trump and Pence are “coming for you,” Axios, Oct. 8, 2020, https://www.axios.com/kamala-harris-pre-existing-conditions-pence-4df3f860-d216-46e3-a958-2d06e917d99a.html.
(8) Ronald Reagan Address at the Brandenburg Gate, June 12, 1987, http://www.hacer.org/pdf/freedomday.pdf.
(9) Text: President Bush Addresses the Nation, Washington Post, Sept. 20, 2001, https://www.washingtonpost.com/wp-srv/nation/specials/attacked/transcripts/bushaddress_092001.html.
(10) Veni, Vidi, Vici, Encyclopedia.com, Oct. 17, 2020, https://www.encyclopedia.com/humanities/dictionaries-thesauruses-pictures-and-press-releases/veni-vidi-vici.
(11) President George W. Bush’s first inauguration speech: Full text, AOL, Jan. 19, 2017, https://www.aol.com/article/news/2017/01/19/president-george-w-bushs-first-inauguration-speech-full-text/21658303/.
(12) Rick Hampson, JFK, Reagan words helped bring down Berlin Wall, USA Today, Nov. 9, 2014, https://www.usatoday.com/story/news/world/2014/11/09/jfk-reagan-speeches-berlin-wall-25th-anniversary/18421393/.
(13) Christina Sterbenz, Lincoln’s Gettysburg Address Totally Overshadowed This Guy’s Two-Hour Speech At The Same Event, Business Insider, Nov. 19, 2013, https://www.businessinsider.com/edward-everett-also-spoke-at-gettysburg-convention-2013-11. For those curious, it was former Secretary of State Edward Everett. Id.
(14) Transcript of President John F. Kennedy’s Inaugural Address (1961), Our Documents, https://www.ourdocuments.gov/doc.php?flash=false&doc=91&page=transcript.
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