Public speaking and the art of persuasion in the courtroom

Would you rather fight a mountain lion than speak in front of a jury?

Dustin Collier
Joshua Socks
2020 October

Part one of a two-part series

As you rise to speak, your hands tremble and your palms feel sweaty. You step forward, but your knees are flimsy. You utter your first words, but your voice cracks. You stop to catch your breath, but your throat constricts. You try to compose yourself, but you have forgotten what you were saying.

If any of this sounds familiar, you are not alone. For all its sophistication, the brain draws little distinction between speaking to a large group of people and being attacked by a mountain lion. Both of these perceived “dangers” tends to trigger a “fight-or-flight” response.

When confronted with a perceived threat, an ancient part of the brain known as the amygdala sends a signal to the hypothalamus, which activates the autonomic nervous system and directs the adrenal glands to release the stress hormone epinephrine into your blood stream.

You have likely heard of epinephrine by another name – adrenaline. As adrenaline circulates throughout your body the heart pumps blood faster and breathing becomes shallow and more rapid. These and other physiological changes provide vital oxygen to your muscles and your brain, heightening your senses while preparing your body to confront the challenge that lies before you. Unless the adrenaline rush overwhelms and debilitates you first.

At the center of our reaction to an adrenaline rush lies the key difference between the novice and expert public speaker. The novice will lean on a “flight” response. Losing sight of the task at hand, the mind becomes preoccupied with an insatiable desire to escape the limelight as soon as possible. That tendency is a natural outgrowth of social anxiety and the fear of being judged. We are social creatures by nature. All of us want to be loved and accepted by those around us without judgment, embarrassment, or exclusion.

So how does the expert public speaker cope with and even thrive under these stressful conditions? Are they simply immune to that fear and anxiety? Absolutely not.

Every public speaker tends to experience the same fight-or-flight response every time we speak to a large group of people. But seasoned public speakers have discovered the truth about the body’s stress response: If you embrace it, it can enhance your performance. Simply put, expert public speakers have learned that adrenaline is their most powerful weapon, providing energy to channel into their performance and keeping their audience engaged.

By learning the techniques and psychological underpinnings of persuasion, the public speaker slowly builds the confidence that makes a “fight” response more attractive than “flight.” Eventually, harnessing the adrenaline becomes second nature and even enjoyable to the speaker.

Ethos, pathos and logos

In his seminal work on Rhetoric, Aristotle set forth three essential components of effective persuasion: ethos, pathos, and logos. Today, these elements of persuasion are so well-established that they are routinely explained to students in introductory marketing courses and used by speechwriters and legislative aides to assist politicians in selling their policy priorities to a skeptical electorate. So what are they?

Ethos or “character” is your perceived likeability and credibility

It is no coincidence that this article begins with a second-person account of the mental and physiological effects of public-speaking anxiety. The second-person point-of-view was purposely used to make the reader visualize or simply remember an experience of public-speaking anxiety and its corresponding adrenaline rush. When second-person language is used (e.g., “Your hands tremble,” “your voice cracks,” etc.), it activates regions of the brain associated with memory, or imagination and empathy in the absence of first-hand memory.

When done correctly, the visual centers of the brain spring to life, creating an immediate image of the circumstances being described. If the image is also networked to real-life memories and experiences, the reader may even begin to feel the anxiety and its corresponding physiological reactions all over again.

The rhetorical invocation of a second-person perspective is a powerful tool of persuasion. Precisely because this type of visualization is so powerful and persuasive, it is generally prohibited in trial practice. Using this technique at trial by asking the jury to place themselves in the shoes of a witness or party can get you on the fast-track to a mistrial or an appellate reversal.

But there are subtle methods for evoking the same visualization without running afoul of those rules, such as beginning a narrative with the word “imagine” or the phrase “picture this” before proceeding with the story using third-person rhetoric (e.g., “Mr. Smith did this” and “Mr. Jones did that”). Both rhetorical devices can have the desired effect of triggering the visual centers of the brain. Skilled deployment of narrative structure and storytelling technique tends to have the same effect.

The core components of ethos, credibility and likeability, are intimately related, yet also somewhat at odds with one another. Stay too humble about your experience and achievements, and your audience may question your competency or your credibility. Say too much about them, and you may be perceived as arrogant, which makes you unlikeable no matter how competent you may appear.

Striking the proper ethos balance is of particular concern for trial lawyers. Jurors tend to harbor a wide variety of stereotypes about lawyers that are decidedly unhelpful to credibility and likeability. We are often perceived as elitist, rich, dishonest, intimidating, condescending, and manipulative (among many other pejoratives).

Hence, as trial attorneys we all start with a significant ethos deficit the moment we set foot in the courtroom, and we must be mindful of building trust with our audience without over-reaching and inadvertently reinforcing any of these stereotypes. So how do we do this? The following is a non-exhaustive list of ways you can improve your ethos when interacting with a jury that are applicable to any situation where you are attempting to persuade others.

Tell the truth

This one may seem obvious, but it is about more than refraining from speaking outright falsehoods. It is about being vulnerable and honest about your own flaws. If you get flustered and lose your place in the course of your opening statement, try reframing this as an opportunity to bond with your audience and build up your own credibility by just telling them what’s really going on. Simply pause, take a deep breath, and say something like: “I’m sorry, folks. The truth is that this case is very important to Mr./Ms. [name of clienthttps://www.nita.org/publications/books-dvds and https://www.trialguides.com/.) Many of these publications are tailored to civil plaintiff-side practice.

Next Month – A look at pathos and logos

Dustin Collier Dustin Collier

Dustin Collier is a principal and founder at Collier Law Firm, LLP, where he represents plaintiffs in employment and personal injury disputes. He also serves as a trial and deposition skills instructor for the National Institute for Trial Advocacy (NITA), the University of San Francisco, and the California Employment Lawyers Association. His firm provides trial and jury consulting services to other lawyers. Mr. Collier has been selected to The National Advocates “Top 40 Under 40” list for California. He has been selected to Super Lawyers “Rising Stars” for Northern California four years in a row.

Joshua Socks Joshua Socks

Joshua Socks is partners with Dustin Collier, where they focus on employees who have been wrongfully terminated and whistleblowers who expose illegality in the workplace. Since forming their partnership in 2017, Messrs. Collier and Socks have successfully represented dozens of employees and achieved multiple victories at trial. They have also been named to Super Lawyers’ “Rising Stars” list for Northern California each consecutive year since they teamed up.

Copyright © 2020 by the author.
For reprint permission, contact the publisher: www.plaintiffmagazine.com