Category: Public speaking

Client developmentEmotional intelligenceLaw practiceLegal communicationLegal writing

New proof about “sounding smart”

Every time a lawyer communications, that lawyer must choose not only what to say but how to say it—in person, phone, e-mail, or something else.

Speaking and listening obviously take longer and may seem inefficient. Writing (such as e-mail) can reach a group of people instantly and allow them to access the information at a convenient time, also creating a record all parties can use and refer to later.

Courtesy Flickr/Horia Varlan/CC by 2.0

Courtesy Flickr/Horia Varlan/CC by 2.0

But e-mail just isn’t as accurate at conveying meaning.* Anyone who has had an e-mail misunderstanding has experienced what the academic research shows:

Because of the paralinguistic cues in voice, such as intonation, cadence, and amplitude, observers who hear communicators guess their actual thoughts and feelings more accurately than observers who read the exact same words in text.

This is just the background in a new study conducted by Professor Juliana Schroeder and Nicholas Epley at the Booth School of Business (University of Chicago) (sub req’d for link). There’s actually another surprising disadvantage of writing, compared with speaking the same material to a listener.

In that study, MBA students prepared pitches on why they should be hired, and then delivered them either orally or in writing. The results were pronounced:

[E]valuators rated a candidate as more competent, thoughtful, and intelligent when they heard a pitch rather than read it and, as a result, had a more favorable impression of the candidate and were more interested in hiring the candidate.

Why is this? It has to do with cues provided by the voice, and heard by the listener—cues that are lacking in writing. The study summed up the effect:

The words that come out of a person’s mouth convey the presence of a thoughtful mind more clearly than the words typed by a person’s hands—even when those words are identical. Across five experiments, evaluators who listened to job pitches were consistently more interested in hiring the candidates than were evaluators who read identical pitches. A person’s voice communicates not only the content of his or her thinking, but also the humanlike capacity for thinking.

The effect persisted whether the written material was prepared for purposes of reading or speaking. It persisted in one form or another for “evaluators” drawn from a general audience at a Chicago museum as well as from recruiters at Fortune 500 companies. The study also asked trained actors to deliver the pitches in another sub-set of the study to glean whether professional voice skills were the deciding factor. They weren’t.

In an article on the study—”The Mouth Is Mightier than the Pen”—the New York Times pointed out that study authors did not control for the quality of the writing itself. Study author Dr. Epley told the Times he assumed the MBA students were “better-than-average” writers, given that they were enrolled at a top business school. But the study’s findings turned out to be greatly surprising to the students themselves: responses to a survey question showed they did not expect their spoken pitches to be so much more powerful in conveying intellect.

The study does not indicate it would be “impossible for a talented writer to overcome the limitations of text alone.” Rather, the study participants did not predict or expect that voice would provide such an advantage, and thus in their written pitches did not spontaneously try to overcome any deficit from that communication medium.

The study has a number of implications, for lawyers and anyone who conducts business in a variety of media—or anyone who cares about making an impression about their intellect:

[T]ext-based communications may make individuals sound less intelligent and employable than when the same information is communicated orally. The findings imply that old-fashioned phone conversations or in-person visits may be more effective when trying to impress a prospective employer or, perhaps, close a deal.

* Among e-mail’s other well-documented disadvantages such as creating a sort of tyranny of distraction.

AdvocacyLegal communicationPublic speakingTrial advocacy

A myth about listening and learning

Listening is a loser, at least according to the widely circulated Pyramid of Learning:

Slide1

I’ve been hearing about the Pyramid of Learning — also known Dale’s Cone of Learning — since I was a child. Yet it has a problem. Specifically, a lot of credible people believe it to be “zombie learning theory that refuses to die.”

Digging through the evidence to find out exactly what is true turns out to be difficult, partly because there are just so many sources that repeat these numbers. One of the best I have seen is by Candice Benjes-Small and Alyssa Archer on the Association of College & Research Libraries blog (these are the folks that called the learning pyramid a “zombie learning theory”). They gather sources and trace how this idea started as a conceptual model about conveying information at various levels of abstraction. There were no numbers making any retention claim. At some point, most likely during World War II, the graphic of the pyramid emerged with numbers attached to it representing retention percentages.

The graphic of the pyramid and numbers makes it feel irresistible. Matching the strength of their appeal with a strident attack, Will Thalheimer has described the pyramid as “dangerous” and a “fraud” on his blog Will at Work Learning. A fairly comprehensive timeline of debunking sources can be found at the Institute for Learning Professionals. The American Society of Engineers published a conference paper with a detailed, balanced refutation including graphical representations of where these numbers appear to come from.

In her textbook Designing Information Literacy Instruction: The Teaching Tripod Approach (2014), Joan Kaplowitz commits the debunking to print:

As appealing as that notion [of the learning pyramid] might be, an exploration of the literature shows there is no solid, research-based data to support it. 1

Kaplowitz goes on to suggest the numbers themselves contain the seeds of their own destruction:

Even the numbers themselves should make us raise an eyebrow and question the so-called data. The percentages are just too perfectly distributed with each number being a multiple of 10 and the spacing of categories somewhat even to have arisen from any real-world experimentation.

That’s a lot of debunking, but is it enough? The appeal of the learning pyramid creates a pedagogical Scylla and Charybdis: If you tout these numbers, many teaching faculty will discount your credibility. But if you doubt the numbers, you may lose your connection with other faculty who embrace them. Benjes-Small and Archer advise “treading carefully.”

What does this mean for lawyers and law professors?

We are experts in being precise with words as well as being skeptical about claims. So we can avoid broad assertions of the pyramid’s scientific truth.

We can be careful in how we present information, testing it on audiences when possible and relying on our own experience as a guide. For example, showing a text-heavy Power Point while simultaneously reading the words is terrible. it doesn’t reinforce the information; it creates competing streams of information and, in a broad sense, is just plain annoying.

We can rely on more recent and more specific research into information retention. Not surprisingly, studies support the use of images: “Humans can remember pictures with 90% accuracy in recognition test over several days, even when the images are presented for only a short time during learning.” This is from Doug Linder and Nancy Levit’s The Good Lawyer: Seeking Quality in the Practice of Law, citing a study that is about 1000 percent more scientific than the cone of learning (as well as 1000 percent more difficult to read and understand). The science confirms the art of lawyering, as recounted by Linder and Levit:

Images are so effective to effective communication that David Ball contends a “trial attorney without images is like an art book without pictures.”

The fundamental truth behind Dale’s original concept is that information can be presented in many forms ranging from the concrete to the abstract. Whether teaching a class, making a presentation to clients, or arguing to a jury, we can “mix it up.” That’s not scientific, and there are fancier ways to say it, like Benjes-Small and Archer’s recommendation: “Think multimodal.” However it is phrased, this broad recommendation is more reliable than a neat set of mythical percentages.


  1. Kaplowitz cites Char Booth, Effective Teaching, Effective Learning (2011); James P. Lalley and Robert H. Miller, “The Learning Pyramid: Does It Point Teachers in the Right Direction?” published in volume 128 of Education (pages 64-79) in 2007; and Michael Molenda, “On the Origin of the Retention Chart” in volume 44 of Educational Technology in 2004.
AdvocacyPublic speaking

The music of advocacy

As a legal-writing professor for 14 years, I’ve attended countless conference workshops on various aspects of legal writing. The ones with music always stand out. There’s just something extra cool about a law professor who plays an instrument. Music speaks to the human ear in a way no law-school lecture ever can. Concert-trained pianist Allison Kort is also a legal-writing professor at UMKC. Today she shares this guest post on the piano sonata and oral advocacy.

IMG_5052“The Court below should be reversed for the following three reasons . . .”

The piano sonata form, particularly the Beethoven sonata (he wrote only 32), usually starts off with a bang. He gets the listener’s attention. The second movement—the slow movement—will bring in a second musical theme, weaving in finer, lighter musical points. The third sonata movement (or fourth) ends by tying together and resolving the development of the pieces, showing the listener how they must come together to a logical conclusion.

In college I sat in a square room in a row of square rooms in the Mosse building in Madison, Wisconsin, cursing the Waldstein, (No. 21, Op. 53). I continued learning the intricate patterns and movements, the difficult runs in the right hand, don’t rush it, don’t slow it, too much crescendo, not enough pedal. My father, who had been a music professor before he went to law school, said it was too technically difficult, just not worth the effort. Maybe, but I will not give it up. I have been practicing the Waldstein and its three movements, on and off, since 1993. It is 2014. Fortunately, during that time, I found something else to do. Like becoming a lawyer and a law professor.

In appellate advocacy, we encourage students to provide the listener with a theme. A theme may be unspoken—a general sense conveyed of why the judge should hold in the advocate’s favor—or it may be directly stated. Regardless, it will pervade the entire argument, be referred to in some way over and over again during the argument, interjected throughout the advocate’s answers to the judge’s questions, and appeal to the judge’s sense of fairness and morality.

Some of us coach advocacy as legal storytelling. Advocates begin the story with a protagonist, and then explain the relationship between the parties, the conflict brought about by that relationship, and the appropriate outcome that should result with the court’s assistance. While oral argument is often described as a “conversation with the court,” certain rules apply. Don’t speak too fast; don’t speak too slowly; never interrupt a judge, but stop talking when a judge interrupts you. Answer a question and always the question asked, but do not ask the court a question. (Since when does a conversation involve only one party asking the questions?)

Is advocacy more music than writing? An expected logical conclusion arrives only after the conflict is introduced, followed by the boldest arguments, the details, and the triumphant conclusion. The practiced storyteller anticipates the judge’s questions, moves at the correct pace, guides the judge effortlessly through the affirmative arguments and through the opposing drama. It may look like a novel, but to the classical pianist, “May it please the Court . . .” sounds like Ludwig.

Client developmentLegal communicationPeople skillsPublic speaking

Coaching listening

One way to become a better listener is to work with a coach. Just Google “listening coach” and you may be surprised by how many resources there are.

One coach who reached out to me is Laurie Schloff, Senior Coaching Partner with the Speech Improvement Company. She has worked with professionals including attorneys for more than 25 years, and (not surprisingly) believes that communication competence is essential to attorneys’ professional success. In one-on-one work, she uses this coaching framework:

  1. Assessing goals and developing a plan
  2. Individual or group sessions devoted to communication techniques and practice
  3. Application of skills in business situations, for example, running an important meeting or coaching a new associate
  4. Assessment of progress and future goals

Laurie provides various types of feedback, including her own personal feedback and video feedback. She also encourages attorneys to seek feedback from peers and to reflect and learn how to become their own coach (the concept of self-coaching).

Laurie coaches on all of the communication skills, but has some specific methods for helping attorneys improve their listening. She promotes the idea of “persuasive listening.” According to Laurie, persuasive listening means “conscious use of listening skills as a tool to build positive rapport, engagement and influence with others in your ‘communication world.’”

She encourages attorneys to think about listening in terms of the acronym “E.A.R.”:

  • Engage
  • Attend
  • Respond

For engaging, attorneys can do something they may feel very competent at, which is asking questions:

Attorneys can become stronger listeners by asking different types of questions depending on the situation. Laurie identified three particular types of questions to consider: “open,” “structured,” and “short reply.” An example of an open question is, What are your thoughts about the training lawyers receive in listening skills?” An example of a structured question is, “What are some ways legal training could include listening skills practice?” An example of a short-reply question is, “Do you think lawyers are good listeners in general?”

For attending, the key issue is attention:

Attorneys can demonstrate attention to clients and colleagues by controlling distractions and multitasking. Employing positive behaviors are easy ways to convey attention, including occasional head nods and encouragers such as “uh huh” or “mhm.”  Laurie pointed out that verbal encouragers are especially necessary during phone conferences. In person, even when taking notes, attention should be on the client’s face as much as possible.

And for responding, again Laurie encourages attorneys to think of different types of responses:

The attorney may be responding to Information, for example by paraphrasing or summarizing before offering a fresh perspective: “So you’re looking to settle this by November.” The attorney may be responding to feeling. This means identifying the undercurrent of emotion if appropriate: “I sense a lot of stress around this last minute change in deadline.” The attorney may be responding to a goal. By this, Laurie means moving the client or colleague in a positive direction: “So you’d ideally like to look at possibilities for a national seminar in 2015.”

Laurie intertwines her coaching with hypothetical examples and anecdotes from her experience. On the value of listening, she shared a few words of wisdom from some of her contacts in the legal world:

  • Esther Dezube, a private practice attorney who specializes in personal injury:  “I listen to what is said and how it is said, starting from when the client walks in the door. If you don’t listen, you won’t be an effective trial lawyer.”
  • Tony Garcia Rivas, senior patent attorney at Ironwood Pharmaceuticals: “Attorneys may assume they know the problem and tune out. When I’m talking, I’m not learning.”
AdvocacyLaw practiceLegal communicationLegal skillsPeople skills

Listening and the art of the “callback”

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.

444166694_bd13e2fa7f_b

Philip Larson/Flickr

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.

AdvocacyLaw practiceLegal communicationLegal skillsLitigation

Oral argument as an improvised conversation

Oral argument — is it really a “conversation”? How can it be an authentic conversation when the power dynamics are so skewed toward the judges and when the attorney is ethically bound to advocate for the client? A recent incident with Judge Richard Posner is just one example of the inherent challenges of oral argument. Advocates may err on the side of scripted arguments and default answer structures as defense mechanisms to survive in this environment. Conversely, great advocates argue with flexibility, maintaining their basic persuasive agenda but effectively listening and responding to the judges’ questions.

I was thinking of the challenges of oral argument when I came across about a new book, Ditch the Pitch: The Art of Improvised Persuasion by Steve Yastrow (SelectBooks 2014).

ditch-the-pitch-cover-150

Yastrow seeks to replace the scripted, one-size-fits all business “pitch” with the art of “improvised persuasion.” This book is most directly relevant to lawyers interested in marketing, and I highly recommend it for that reason. But for this post, the focus is on making oral argument more responsive and conversational using Yastrow’s improvisational techniques. The rest of the post substitutes [advocates] for salespeople, and [judges] for customers.

The basic truth is harsh and hard to accept. Yastrow begins by attacking the belief that anyone — customer, judge, anyone at all — is actually interested in someone else’s scripted pitch/argument.

“[H]ere’s the unadorned truth: Your [judge] doesn’t really care what you have to say about yourself or what you are trying to [argue.] Your story is not all that interesting to him. He cares much more about his own story.” 

This underlying lack of interest (in what the advocate has to say) informs everything else Yastrow recommends:

“The first thing you have to do if you want [judges] to listen to you, is to earn the right to be heard. Contrary to the most fundamental beliefs about [advocacy], you do not earn the right to be heard just be delivering the right message to the right [judge] at the right time. You earn the right to be heard once you have engaged your [judge] in a dialogue that is meaningful to him.”

Conversations that are meaningful to the other person (the customer or judge) arise out of a “diagnostic” mindset. This means finding out what the other conversation partner wants, needs, and is concerned about. A diagnostic conversation stands in opposition to a prescriptive conversation where you just tell the other person what he or she needs. (This would be oral arguments consisting entirely of scripted arguments and scripted answers to questions.)

How does one create a diagnostic conversation? An advocate cannot turn the table on a panel of judges and say, “Your honors, I’d like to start by learning more about your needs in handling the challenges of deciding this case. What are your sticking points with my client’s position?” But advocates *can* use oral argument as the opportunity to learn how the judges are thinking about the case.

In this sense, many techniques from the book seem applicable:

  • “Think input before output.” Perceive and comprehend the input conveyed through the judges’ questions and even at times their facial expressions and body language.
  • “Say less to notice more.” Speak slowly enough that judges have a chance to think and ask questions as they arise. Make points thoroughly but concisely.
  • “Turn down your analytic brain.” This doesn’t mean abandoning legal analysis. It means trying to turn down the overly critical self-judging that comes from worrying about how things are going as they happen. If an advocate is berating him- or herself for bungling a question, the advocate is not open to the new cues being offered and how to keep the focus on the judges’ needs.
  • “Listen for the game.” Oral argument isn’t a game, but this language, drawn from theater improvisation, means finding the common ground of the improvised conversation: “What are we really doing? What are we really talking about? What’s going on here?” If an advocate is emphasizing the substantive legal question but the judges are asking technical questions about procedure or the effect on future cases, then there is no common ground — and no shared game to play.
  • “Ensure your [judge] keeps saying yes.” In Yastrow’s words, “If your [judge] says ‘no’ to something you say or disagrees with a statement you make, you will immediately feel the conversation stall.” Indeed. To try to minimize these stalled moments, focus on areas of “mutual affirmation and agreement.” It seems that mutual agreement may come many sources: taking reasonable positions that the court might actually adopt; using binding precedent in skillful way; invoking shared understandings such as canons of construction; and possibly invoking shared imagery that is meaningful to the court.

And one final interesting approach: “Keep 95 percent of the conversation about the [judge].” When selling, Yastrow continually monitors his own performance in the conversation and asks, “Are we still talking about them?” Phrased in terms of oral argument, “[the judge] wants to hear about himself. If you notice that the conversation is about you, change it! Focus the conversation on your [judge].

There are some other interesting points from the book to be explored in later posts, but let me end this post on the 95 percent point. How can advocates actually advocate for their clients while also keeping 95 percent of the focus on the judges? I have a few ideas, such as highlighting what the opinion will mean for the court as precedent going forward. What do you think? For oral advocates, have you explicitly tried to keep the focus on the court, and if so — how?

And more generally: does the analogy of a sales pitch correspond to oral argument? How can advocates listen and improvise more effectively at oral argument?

 

 

Legal communicationPeople skillsPublic speaking

Listening in the midst of turn sharks

Conferences are a unique listening opportunity, especially for those of us who regularly stand on the speaking side of the podium. Sitting in the audience at a conference presentation lets us experience and reflect on our own listening: are we perhaps just as distracted as those we complain about when we have the podium? If we tune out for just a moment, how hard is it to reintegrate into the speaker’s flow of ideas?

Flickr/Magnus Brath

Flickr/Magnus Brath

Being in the audience also gives us the social experience of listening. Listening and learning are not merely acts of individual will; our perception and comprehension are affected by the acts of those around us trying to do the same thing. There are some interesting social aspects of social listening I have learned about since starting this blog—for example, “turn sharks.”

I first read about turn sharks in Frederick Erickson’s book Talk and Social Theory. The phrase describes aggressive behavior during conversational turns—basically, interrupting someone else’s turn to speak and taking over. When there is a potential opportunity to speak, turn sharks circle the conversation opportunistically. They look for weaknesses in the speaker or pauses that would allow them to break in. If the turn shark thinks he or she can make the point better or has a related point that simply must be heard in tandem with what is being said, the shark raises a hand, uses nonverbal cues to enter the conversation, and sometimes just starts talking.

Turn sharks can be just a very strong version of what speakers want and what listeners in the audience need—that is, other actively engaged members of the audience. And a turn shark may be so aggressive because he or she really does have the most relevant or efficient thing to say. The speaker may wish to use such comments to advance the conversation.

But sometimes the turn shark begins to dominate, or to direct a conversation away from the speaker’s goals. To manage the dynamic, a speaker can try several strategies:

  • Demonstrate comfort with pauses and silence.
  • Listen receptively to each audience member’s comment, reinforcing that person’s autonomy as the speaker.
  • “Listen” visually by scanning the entire room to see who has a hand up, rather than opting for volunteer with the most aggressive body language.
  • Actively engage others in the audience by explicitly giving them a turn to speak.
  • Use a method such as a “talking stick” to reinforce who has the floor.
  • Protect audience members who have been targeted by a turn shark, returning the conversational focus back to them.

For single-session meetings such as at conferences, where the audience mixes and reconstitutes for each individual session, turn sharks may be as nomadic and unpredictable as real sharks. For ongoing social situations where the same audience comes together over time—such as, for example, in a class—conversation leaders may need to institute more structured conversational customs to let the sharks have their say while keeping others out of their jaws.

Here are a few questions for listeners and for speakers reflecting on the group dynamics when they involve the audience:

  • If you have been a member of an audience that included a turn shark, how did you react? How did the turn of conversation affect your listening?
  • If you yourself have been a turn shark, what was your motivation? How did you insert yourself into the conversation, and what was the impact on the group?
  • If you have led a single-session meeting that included one or more turn sharks, how did you handle the conversational flow?
  • If you have lead a multi-session group that included one or more turn sharks, how did you handle the conversational flow?

Many thanks to Emory Law Professor Barbara Bennett Woodhouse for feedback on this post.

Clinical legal educationLaw practiceLaw schoolLegal communicationLegal skills

Listening to yourself speak

With the beginning of the new Supreme Court term and the opening of moot court season in law schools, this is an opportune time to study techniques for listening to yourself. By recording yourself giving a practice speech or oral argument and then studying the tape, you can greatly improve your effectiveness as a speaker.

But watching yourself speak can be challenging. First, there is the hurdle of . . . just watching yourself speak. For many, it’s a painful experience. If you can get past the discomfort, forcing yourself to watch tape can reveal distracting unconscious behaviors that you can then begin to curb.

The analytical content of a presentation may be more difficult to deconstruct by watching tape. Seeing your nonverbal behaviors on tape may prevent you from focusing on the content. And hearing your own speech again may actually reinforce the content in your mind, rather than helping you recognize gaps and weaknesses.

To listen to yourself and engage deeply with your own content, you need to listen specifically and critically. One innovative and powerful method for doing so is demonstrated in a wonderful Brain Pickings post here. In the post and embedded video, presentation guru Nancy Duarte breaks down Martin Luther King’s “I Have a Dream” speech. Her visual analysis deconstructs the speech’s rhythm and rhetorical components. The post and Duarte’s embedded videos are well worth your time for so many reasons.

For lawyers working on a particular speech or oral argument or presentation, Duarte’s methods could be extremely useful. To listen to yourself using Duarte’s method, consider using audio as she does. This eliminates the distraction of seeing yourself. And it frees up your brain to think about the key issues she is focusing on: the segments and breaks in the speech, and the type of content delivered at different times.

Listening to yourself speak

1. First, find the natural breaks in your presentation.

Working from the transcript of your practice presentation, insert hard returns where you paused. This technique reveals the shape of what you are saying. Duarte organizes Dr. King’s speech on a timeline running across the page and inserts the breaks vertically. But you could do it horizontally on a regular typed page to obtain many of the same benefits.

This method by itself can help you hear whether the speech on paper is actually appropriate in spoken form. If you have an overwhelming eight-sentence paragraph in your draft speech, you’re going to have to insert more breaks. This method also can help you hear whether the pauses are coinciding with what you want to emphasize—or, as is sometimes the case, you are hesitating to pause at all.

2. Code your content, and examine proportions and patterns.

The second step in Duarte’s method is to color-code the material to show its proportions and patterns. Duarte uses a coding system appropriate for studying Dr. King’s speech within the rhetorical context of the civil rights movement. Lawyers using Duarte’s method to work on an oral argument or CLE presentation would obviously want to modify the color-coding system to fit the situation. The content you would code for varies by context, but here is a possible idea for coding a practice opening statement:

  • Duarte coded repetition in light blue. In listening to an opening statement, a lawyer might use light blue to code the theme of the case. (Ideally there would be some repetition of the theme. This method would reveal how often and when the theme cropped up.)
  • She coded metaphors and visual words in pink. A lawyer might use pink to code vivid descriptions of the testimony to follow.
  • She coded songs, scriptures, and literature in green. A lawyer might use green for cultural references (although whether to even use cultural references in a jury setting is a topic for another blog).
  • She coded political references in orange. A lawyer might use orange for legal standards and references to the role of the jury.

Duarte appears to have used some sophisticated software to generate the timeline and graphic components of the speech. But with a transcript and a simple word-processing program that allows text highlighting, lawyers could apply the same method. Speech-to-text applications such as Dragon Dictation could make this process even easier.

The benefits of Duarte’s method are not limited to speeches and formal presentations. Lawyers and law students practicing for oral argument could apply the same method to break down the way they are answering questions and managing the argument:

  • Are your answers transitioning from defensive content into more positive, affirmative arguments? [Color-code red for defensive statements and green for affirmative statements.]
  • Are your answers bringing in legal support? [Color-code yellow for facts and green for law.]
  • Are your answers lingering too long on answers or, conversely, are they so concise as to seem clipped or not fully supported? [Color-code orange for the answer to the question and purple for the return to the main argument.]

[Aside on the topic of writing: Breaking down your writing through color-coding for specific content is just as effective when the writing is intended to be read, rather than spoken. Mary Beth Beazley popularized this method for teaching legal writing in The Self-Graded Draft: Teaching Students to Revise Using Guided Self-Critique, available from the Journal of the Legal Writing Institute here. Duarte’s presentation on “I Have a Dream” shows this type of method is not just for beginners confronting a new genre such as “IRAC.” It is revealing and productive for the most sophisticated writers and speakers among us.]

Of course only the rare and gifted orators can even come close to the achievement of “I Have a Dream.” But everyone who prepares and delivers speeches and oral arguments can benefit from practicing and really listening to what that practice reveals. We can then critically examine what we are doing and how to make it better.