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The art of persuasion
Five political speechwriting tips to become a more effective litigator

November, 2020:  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.

Boston partner Lauren Papenhausen, associate and former speechwriter Julian Canzoneri, and attorney and former speechwriter in the Obama White House, Dave Cavell, share five tips for litigators.

1. Tell a story that makes the audience care, using persuasive imagery.

A winning litigation strategy, similar to an effective stump speech, 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 concerning two multinational corporations fighting over money, litigators must find a way to make the judge and jury emotionally invested in their side's cause.

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, can enliven a litigator's written prose and invigorate oral advocacy. For example, litigators can define their goals as the opposite of the other side's—an effective use of the contrast technique well known to speechwriters.

Repetition is another common speech-writing tool. In litigation, not only can repetition within a closing argument be a powerful technique, but repeating strategic themes and phrases throughout the case also helps the judge internalize your arguments. 

We're also all at least subconsciously aware that political leaders land points with the power of three (for example, Julius Caesar's "Veni, vidi, vici," meaning "I came, I saw, I conquered.") 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.  Be conversational. 

Use simple words. Especially in oral advocacy, avoid using a 50-cent word when a nickel word will do—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. 

Eliminate jargon. 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.

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. 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. 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."

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. 

This article is adapted from a longer version available on Law360.

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