What do oral argument, marketing pitches, and improvisational theater have in common? This blog previously reviewed Steve Yastrow’s informative and entertaining book, Ditch the Pitch: The Art of Improvised Persuasion, and addressed how some of Yastrow’s recommended approaches could apply in the oral-argument setting.
Some of these applications may be unexpected — but one particular tactic is something skilled oral advocates have been doing from time immemorial: the “callback,” or referring to something someone said earlier.
“Calling back,” or referring to a judge’s earlier question or comment is a classic tactic for oral argument, although lawyers don’t tend to use the term“callback” in this context. Whatever you call it, Yastrow’s explanations for why it works so well in business translate fairly well to the oral-argument context as well. (And apart from oral argument, the approaches in Ditch the Pitch certainly deserve consideration by lawyers developing their marketing pitches conversations.)
Callbacks demonstrate listening. And listening generates rewards, Yastrow writes, namely the rewards of your audience’s attention and interest.
Callbacks also help the audience understand the conversation. They make it more coherent: “[A] callback ties material together, making it easier to understand and engage with that material,” Yastrow writes. When the information is easier to understand, it feels more cohesive and resonant. It’s more believable.
Most subtly, callbacks involve the audience. In improvisational theater, callbacks help make the audience feel that they are “in on the joke.” They are “with” the cast and not part of the audience. Similarly, using a callback in oral argument involves the judge in the argument as more than a passive listener. When done right, mentioning a judge’s earlier comment or question can subtly suggest that the judge has already begin to take a few steps down the road toward accepting a certain position.
Yastrow’s advice for executing a callback strategy is helpful for oral advocates (and legal marketers) as well. The three basic steps, he writes, are discovering the opportunity for a callback, remembering it, and integrating it into the conversation.
Discovering the opportunity for a callback means being alert. Notice things that are important to the audience. Try to make a mental (or actual) list of “Things That Matter” to the audience. Advocates can prime themselves to be alert by their usual preparation steps such as studying precedent and the particular judges’ prior rulings. During the argument, advocates would certainly want to make a note of the dominant topics, i.e. Things That Matter to the judges.
Remembering the opportunity can be difficult because of the need to be engaged in the conversation itself. This is exceptionally true in oral argument, where time seems to distort itself and nerves interfere with simple tasks like taking a drink of water. (Anyone remember Tom Cruise struggling to take a sip in A Few Good Men?)
Yastrow recommends attaching visual images to the comments to help with recall. For example in a trade secrets case, if the judge asks whether other employees had access to the alleged trade secret, an advocate might visualize a large company meeting with all employees sitting in an auditorium, and the trade secret sitting on a platform on stage. This visual technique may sound a bit kooky, and it is explained fully in a very kooky and wonderful book, Moonwalking with Einstein by Joshua Foer. As Yastrow shows, it works in serious business situations. And it will work in oral argument as well. (Lawyers and law students, have you tried this?)
Lastly, the callback must be integrated into the conversation. There’s a ham-handed way to do this and an effective way. “Play it cool,” Yastrow advises; don’t say, “Hey, look at me, aren’t I clever, I just came up with a callback!” For advocates, one risk is over-playing their hand. Presenting the callback as a “gotcha” to the judge is probably worse than doing no callback at all.
To be effective, the callback must naturally fit in with the conversation itself. And that requires an overall mindset of alertness to the audience’s interests and needs, as well as a willingness to take the risk of improvising.