Category: Legal skills

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).


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?



Law practiceLegal skillsLitigation

Is listening different for civil vs. criminal lawyers?


This attorney described different listening challenges in civil versus criminal practice:



Law schoolLegal educationLegal skillsLitigation

Listening the first time

Do you remember the first oral argument you ever saw? The first real trial? First mediation? First negotiation? First plea deal? First closing?

These firsts are hard to forget. They can be pure sensory overloads: the defendant comes in wearing orange, the state puts on its case and the defense tries to poke holes and humanize the defendant, the jury decides, the judge speaks, and then the bailiffs take the defendant away, or not. That’s how I felt years ago as a young journalist on the courthouse beat, watching the power of the state.

Courtesy Flickr/Jeffrey Beale

Courtesy Flickr/Jeffrey Beale

But there is another approach–preparing to listen, to see, to notice. Building a tentative framework for comprehending the event. What should an observer expect to see? To hear? What does a mentor advise an observer to pay special attention to? If an observer has never seen a trial before, how should that observer filter and evaluate the first one?

Just as one example, here is a set of “listening guidelines” for observing one’s first oral argument. Where I teach legal writing, we share these guidelines with students before they watch an oral-argument demonstration. This is not a formal assessment rubric; it’s more an intuitive list of how and what to notice. And it’s not really just a “listening” framework; it’s a learning framework for an experience that demands and rewards effective listening.

  • How did counsel begin the argument?
  • Did counsel clearly state what they wanted the court to do?
  • Did counsel make the facts of the case clear?
  • Was counsel concise in describing the facts?
  • Did counsel set out a roadmap of the argument to follow?
  • What kinds of arguments did counsel focus on (legal, factual, policy, emotional, other)?
  • How did counsel use authority to support the argument?
  • Did the argument begin with strong, favorable points?
  • How did counsel handle counter-arguments?
  • What role did the record play in the argument?
  • What kind of questions did the court ask (e.g. clarifying, hostile, or friendly questions; questions about the record or about the legal support for the argument)?
  • How effectively did counsel answer those questions? What made the answers effective or ineffective?
  • How did counsel conclude the argument?
  • Did counsel do anything distracting to you?
  • What demeanor did counsel adopt (e.g. combative, conciliatory, matter-of-fact, impassioned, etc.)?

Feedback is welcome, both on the specific guidelines and the general concept. How have you prepared yourself, if at all, before seeing a type of lawyering event for the first time? How do you advise others to prepare themselves?

Legal communicationLegal skills

Listen Like a Lawyer’s Year-End Review








Clinical legal educationLaw practiceLegal skillsLitigation

Secrets in the courtroom

Courtesy of the J. Paul Getty Museum

Courtesy of the J. Paul Getty Museum

People over-value secret information, according to a series of studies reported in the New York Times reported earlier this year. Information designed as “classified” is treated as highly valuable precisely because it is secret.

When two groups in an experiment read the same government report—which was labeled “classified” for one group and “public” for the other—the results were stark: “people who thought the information was secret deemed it more useful, important and accurate than did those who thought it was public.” In other words, they applied a heuristic or psychological shortcut—in this case, the “secrecy heuristic.” Study participants were also more impressed by decisions based on secret information as opposed to freely available information.

Reports on these studies prompted some thoughts about listening, jurors, and the secrecy heuristic. Jurors are instructed to listen very carefully to what happens during trial. How, then, do jurors’ minds respond when attorneys object to evidence? The entire purpose of an objection is to prevent the jury from hearing something! (Or seeing it.) Within the flow of events in the courtroom, an objection stops everything.

At this point, the secrecy heuristic could come into play in several ways. If the objections are conducted in open court, the objection process emphatically flags for the jurors that there is something that one of the attorneys doesn’t want them to see or hear. They may be able to listen to the very evidence they will then be instructed to disregard, if it is ruled inadmissible.

If the objections are conducted in a bench conference, the same effect may apply. The theatrics of the courtroom could emphasize the secrecy if the attorneys approach the bench and speak in hushed voices about the “secret” evidence. A bench conference could trigger a double secrecy heuristic: the secrecy of the evidence itself, and the secrecy of the bench conference that they observe but cannot hear. (Or the  jurors may just tune out, regarding the conference as hyper-technical legal maneuverings.) 

Legal scholars such as Jeffrey Rachlinski of Cornell have written at length about heuristics within the legal context. For example, jurors do not appear to disregard information even if a judge asks them to disregard it. If one party asks for a certain amount in damages but the judge instructs the jury not to consider the amount, that amount still serves as an “anchor.” The anchor exerts influence regardless of the instruction to disregard it, pulling the award toward  the anchor for groups exposed to it. Groups with no anchor return very different damage awards. Professor Rachlinski has also written with Judge Andrew Wistrich and Chris Guthrie of Vanderbilt about whether judges can ignore inadmissible evidence that they hear; the answer appears to be “no.”

Under the concept of the secrecy heuristic, it seems possible that judges and jurors who hear inadmissible information and are instructed to disregard it may not only *not* disregard it but actually give it more weight. Jurors who know something is being kept from them may assign more weight to the gap in their knowledge. (If the word “insurance” arises at trial and then is hushed over by an objection, jurors might spend time in deliberations discussing whether to reduce a plaintiff’s award based on the likelihood of coverage. The role of insurance might seem even more important because they are not supposed to hear about it.)

The scholarship does not use the term “secrecy heuristic” in describing this effect but bears it out in different words: In the article on judges and limiting instructions, Wistrich, Guthrie, and Rachlinski cite practical advice from Keeton’s Trial Tactics and Methods: asking the judge to instruct the jury to disregard evidence “calls to the jury’s attention the relevance of the evidence to the very issue on which you are seeking to avoid their considering it.” They also cite a 2001 articleJury Decision Making: 45 Years of Empirical Research on Deliberating Groups, which found that limiting instructions are “associated with a paradoxical increase in the targeted behavior.”

The secrecy heuristic would help to explain the psychology of this paradox. When you instruct someone to listen carefully, but then to disregard certain information, the whole process is likely to reinforce their memory of that information and their assessment of just how important and valuable it really is.

Many thanks to Jeff Rachlinski of Cornell, and Julie Seaman and Paul Zwier of Emory for feedback on an earlier version of this post. For more background on cognitive heuristics and listening, here is an earlier series from Listen Like a Lawyer exploring cognitive biases and listening in the legal context.

Legal communicationLegal skills

Lawyers: listen to your writing





Try reading your work aloud.

The ear is much smarter than they eye,

If only because it’s also slower

And because the eye can’t see rhythm or hear unwanted repetition.


But how should you read aloud?

There’s self-awareness even in this, 

A tendency to overdramatize or become self-conscious,

To read as though the words weren’t yours,

Mechanically, without listening,

As though you were somehow hiding from their sound

Or merely fulfilling a rote obligation.


To a listener who is both you and not you–

An imaginary listener seated not too far away.

That way your attention isn’t only on the words you’re reading.

it’s on the transmission of those words.


Read so the listener can hear the shape of the syntax,

You be the listener, not another person.

You’ll be stopping often.




Know what each sentence says,

What it doesn’t say,

And what it implies.



Legal communicationLegal skillsPeople skills

Mark my words: Listening to “discourse markers” to be a better listener

Spontaneous speech doesn’t fit together like Legos. Because speech reflects a sometimes messy thought process in real time, spoken transition words and phrases—what the linguists call “discourse markers”—serve a crucial purpose in conversation.



Discourse markers can be as empty as “I mean,” as overused as “clearly,” or as specific as “at the end of the day.” (I had thought “at the end of the day” was just a legal/business buzzword. Apparently it formally qualifies as a discourse marker as well.)

There are different kinds of discourse markers, including those the speaker provides to structure what he or she is saying, and those the listener provides in participating in the conversation. Saying “um-hmm” to keep the conversation going is one example. This post focuses on listening to the speaker’s own discourse markers because they are tempting to disregard.

Lawyers may think that they can listen most efficiently by disregarding most discourse markers and focusing on the “real” content they are hearing. I confess to having tried this in many past conversations. But disregarding discourse markers is actually a really bad idea. They are an important source of information about the speaker’s attitude toward the conversation itself. They can:

  • highlight important events in a narrative;
  • help listeners follow a speaker’s train of thought;
  • help listeners recover from a “repair”; or
  • show the relationship between two statements.

This list is quoted from a linguistics article by Fox Tree and Schrock, Oh What a Difference an Oh Makesfound in this PDF. The article reports on language experiments with a fascinating conclusion: listeners better understood speech content when it included a discourse marker as simple and seemingly insignificant as the word “oh.” When listeners heard the same speech content without the “oh” or with just a pause where the “oh” would be, they didn’t understand the content as well.

For listeners, recognizing and showing responsiveness to a speaker’s discourse markers can build trust and move the conversation forward. Misinterpreting or entirely missing a significant marker can set the conversation back and make the speaker think less of the listener.

Many markers focus on the content of the conversation:

  • Signaling an important idea, such as “The key point is . . .“
  • Highlighting an objection, such as “Here’s the thing . . .”
  • Marking an attempt to end the conversation, such as “So the takeaway from all of this is . . .”

Some discourse markers seem more personal than others, and may serve as a sign of submission or authority:

  • Using the listener’s name, as in “Casey, . .” or “Your honor, . . .”
  • Phrasing the message directly and personally to the listener, such as “What I need you to understand is . . .”

And some discourse markers involve repackaging part of the conversation to relate it to a new piece of content:

  • Rephrasing an idea and moving into a new idea as another item in a list, such as “In addition to the time and energy it will take to litigate this issue, there are also hard costs to consider.”
  • Rephrasing a concern and subordinating it to a larger concern, such as “And although the timeline is challenging, it’s going to be very difficult to justify waiting any longer.”

Discourse markers are a universal trait of language in both speech and writing. Jill Ramsfield and Christopher Rideout have written about discourse markers unique to legal writing such as “whether” for introducing a traditional Question Presented. In spoken legal discourse, perhaps “your honor” in addressing a court is the most ingrained discourse marker? One of my favorite law school professors, a frequent advocate before the United States Supreme Court, described using “your honor” as a filler when she was brainstorming what to say next. Readers: please chime in with further thoughts on uniquely legal discourse markers.

What really matters for lawyers is to recognize the importance of discourse markers. Maybe a more memorable word for the practical lawyer is “signals”: discourse markers can send a *signal* about what a speaker thinks. They could signal what a client thinks is really important or when a judge is ready to move to a new argument.

Noticing these signals can increase lawyers’ effectiveness as listeners because by doing so, they will better understand the speaker’s content in the abstract as well as the structure of the content and the speaker’s attitude toward the content.

P.S. This post started as a tirade against the conversation stopper “yes, but,” which is a type of discourse marker provided by a listener in taking over the conversation. Here’s a quick summary of how “yes, but” works as an effective conversational technique: it doesn’t.

P.P.S. For a law-review treatment of conversation theory including discourse markers, I highly recommend Linda F. Smith, Always Judged: Case Study of an Interview Using Conversation Analysis. It contains transcripts of effective interviewing techniques. As the abstract states:

Legal interviews are infrequently recorded and rarely studied. The few empirical studies of actual legal interviews have been primarily critical of the lawyers for being too controlling, eager to impose a solution on the clients, and uninterested in the message the clients want to convey. This article presents a case study of something heretofore unavailable – an experienced, expert attorney conducting a successful initial interview with an actual client. This article uses ethnographic conversation analysis to describe the interview in terms of question form, interruptions, control of the floor, and expressions of empathy. It relies upon the insights from prior empirical studies and shows why this is an excellent interview – the client not only is heard, but feels understood, rather than “judged,” by his lawyer.

Legal communicationLegal skillsPeople skills

Lawyers and hearing loss: seeking input





Client developmentLegal communicationLegal skillsPeople skills

Getting Better at Listening



Law practiceLegal communicationLegal skillsPeople skills

Halloween Special: Four Kinds of Scary Listeners



The Smartphone Vampire


The Robot Programmed to Listen Actively


Client:       I’d like to get an update on my case.


Client:       Right, how’s it going?




The Listening Mask




The Hostile Tape Recorder





Photo credit: Flickr/Gregor Ravik/CC by 2.0