Public Speaking Tips for Lawyers and Other Humans

By Zach Wolfe

From www.fiveminutelaw.com

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Part 1 – Should You Lead with a Joke?

First Ask Yourself This Question: Am I Funny? It is reported that many people fear public speaking more than death. If you are a lawyer, I hope that isn’t true of you, because speaking effectively in front of groups is an important part of what you do. Personally, I love standing up in front of people and talking. On the other hand, mingling at a cocktail party where I don’t know anyone – now that scares me to death. Even if you are not a courtroom litigator like me, at some point you will find yourself speaking to an audience, whether it is a client conference, a meeting with your law firm partners, or a presentation at a seminar. In fact, regardless of your profession, it is probable that at some point you will need to speak to an assembled group of multiple human beings. You need to be able to inform, to persuade, and sometimes even to entertain. And to do these things effectively, you’re going to need some advice. What qualifies me to give this advice? Well, I do a lot of public speaking, whether it’s in a courtroom or at a seminar, and I listen to a lot of public speaking. But that’s not why I’m qualified. It comes down to the fact that I pay attention to what works and what doesn’t, and trust me, I have learned as much from what didn’t work for me as anything else. As Yogi Berra said, “you can observe a lot just by watching.” So what works? First, don’t imagine your audience members in their underwear. That’s just weird. Second, you have to decide whether you’re going to try to be funny. There is an intense debate over whether it is good practice to start a speech or presentation with a joke or a funny story. I will now settle this debate once and for all. To decide whether to lead with a joke, ask yourself this: Am I funny? If the answer is yes, then have at it, lead with a joke. There is probably no better way to break the ice, get your audience’s attention, and get them on your side right off the bat. If that works, keep the jokes coming (at least until you get to a serious point).

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But if the answer is no, then don’t lead with a joke, and don’t try to be funny. There is no better way to stop the momentum of a presentation than to tell a joke that doesn’t get any laughs. The problem, of course, is that every person thinks he or she is funny. How many people have ever said “no, I really don’t have a good sense of humor”? It reminds me of writer Dave Barry’s line that “the one thing that unites all human beings, regardless of age, gender, religion, economic status, or ethnic background, is that, deep down inside, we all believe that we are above-average drivers.” Just as some of us are below-average drivers, not all of us are actually funny. In fact, very few of us are funny. (On the very serious subject of what makes people funny, I recommend Jerry Seinfeld’s web series Comedians in Cars Getting Coffee.) So how do you know if you’re actually funny? Try this experiment. The next time you tell a joke in front of a group, observe the reaction carefully. (For more accurate results, your sample audience should not be drinking.) If there is laughter, is it the “polite laughter” that you get from a courteous audience when they know that someone just said something that was supposed to be funny? Or is it real laughter, the kind that comes more from the gut than from the head? The proof is in the pudding, and the difference is pretty obvious. Chances are, you are not all that funny. If your ambition is to be a standup comedian, then this could lead to a major existential crisis. But if you are in some other profession, it’s ok, because once you figure out that you are not as funny as you thought you were, it takes some of the pressure off. Rather than trying to come up with something funny to kick off your next presentation, now you can focus on something else. For example, how about starting off with a somewhat provocative question to the audience that invites a show of hands? And don’t feel bad. I’m not that funny either. True, my mom thinks I’m really funny, but she also thinks I should be the President. Now, in fairness to myself, occasionally I might hit on something humorous that gets a few laughs. But generally, the things I crack myself up with in my own mind usually fall flat in front of an audience. Most of you are probably like me.

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So when you give a presentation, focus more on trying to be engaging than trying to be funny. If you’re interested, I will share some advice on that in Part 2. Just don’t make me go to another cocktail party.

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Part 2 – Watch Your Tone!

Be More Engaging by Avoiding "Seminar" Tone and "Speech" Tone In Part 1, I definitively resolved the debate over leading with a joke when you have to speak in front of a group of people. For most of us, it is better to ditch the jokes and focus on making the presentation engaging. Merriam-Webster says “engaging” means “attractive or pleasing in a way that holds your attention.” In other words, you want people to pay attention to what you’re saying and to enjoy listening to you. Step one to holding people’s attention is your tone. This is true whether you are a lawyer making an argument in court, a teacher in front of a classroom, or a pastor preaching from the pulpit. It is no accident that “tone” is also a musical term. It means the sound of your voice, apart from the particular words you are saying. Imagine someone who doesn’t speak your language listening to your speech or presentation. What would it sound like to that person? That’s your tone. Fortunately, just as there are many different musical instruments that can sound good (or bad), there is no single “engaging” tone. But there are two common tones that are most definitely not engaging. The first one is “Seminar Tone.” You’ve all heard it. It’s the tone that comes from someone trying to convey the impression that “I am a very serious expert in this topic addressing something very detailed and esoteric.” It is flat. It is monotone. It is uniformly mezzo-forte. It delights in acronyms, sections, and sub-sections. It’s what you would sound like if you had to read an excerpt from a textbook on a subject that bores you.

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There is no single "correct" tone, but there are tones to avoid

The problem with Seminar Tone is that it sounds like the adults in the Charlie Brown cartoons you watched on TV when you were a kid. Waa-waah-waa-waa-waaaah. What do kids do when adults talk? They tune out. And if you talk in Seminar Tone your audience will do the same. The other common tone that most people should avoid is what I call “Speech Tone,” which sounds like someone giving a speech. Whereas Seminar Tone tries too hard to say “I’m a very serious person,” Speech Tone tries too hard to say “what I’m saying is very important.” It just doesn’t sound right when someone stands in front of a group of 20 people and speaks as if it were a political rally in a stadium. In 1956. Don’t get me wrong. Speech Tone works for some people in some situations. But for those of us not named John F. Kennedy or Martin Luther King, Jr., it is usually not very engaging. Even for politicians, these days Speech Tone doesn’t work that well. You need to talk loud enough to be heard, but there is no need to shout, especially if you are amplified. Speech Tone is common in the courtroom, especially with less experienced lawyers. Perhaps younger lawyers are nervous and don’t want to come across as inexperienced. To compensate, they adopt a tone that is too stiff and formal. Even seasoned litigators can lapse into Speech Tone, although when they do so it is usually in the form of an overly aggressive, argumentative tone. The problem is that Speech Tone—whether the stiff variety or the overly aggressive variety—tends to make the judge tune out. If the judge wanted to

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hear a canned presentation that repeats what is in your brief, she could just read the papers. And if the tone is too argumentative, it starts to sound like mere rhetoric. In an effort to make your tone more persuasive, you can make it sound like propaganda. Try a different tone. As one of my mentors would say, look at a hearing with the judge as a chance to “talk turkey.” Rather than approaching a hearing like a high school debate contest where you try to rack up the most points, imagine that the judge walks into your office at the end of the day, sleeves rolled up, sits down and says “ok, tell me what this case is about and why I should rule in your favor.” It took me a while to learn this, but in most cases the judge is not asking herself “who can make a better argument?” but is asking “who can I trust on the facts and the law to tell me how to get this right?”

Use the right tone to keep your audience engaged

Lawyers and witnesses, please note: This does not mean you should be casual in the courtroom. There is a difference between informal and casual. Casual is how you talk to your friends at happy hour. Informal is how you talk when you visit your grandmother and she brings you a glass of iced tea and some cookies. Strangely enough, this advice for the courtroom holds true for most kinds of public speaking, regardless of profession. It turns out the antidote for both “Speech Tone” and “Seminar Tone” is the same: adopt a conversational tone. Talk as if you are having a conversation with a friend about an important subject that intrigues you. Like who you should draft as your third fantasy football wide receiver.

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If you want to make your tone even more engaging, then I invite you to graduate from a conversational tone to a musical tone. Borrow a concept from music and use dynamics. It’s no accident that people will rave about a “dynamic” speaker, even if they don’t really know what that means. A truly dynamic speaker has a tone that varies from loud to soft and in between. It has crescendos and diminuendos. Like a good Van Halen song. Try this next time, especially if you have a microphone: When you get to a key point, instead of talking louder, build up to it and then state the conclusion very softly. I bet people will be leaning forward eager to hear what you have to say. This is just one technique. The point is to vary your tone to keep your presentation engaging. Of course, a great tone is not going to help much if your content is frivolous or boring. You could read the phone book like a virtuoso, but it wouldn’t hold anyone’s attention. So you need to prepare content that is as engaging as your tone. Tune in to Part 3 to find out how.

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Part 3 – Fluff and Stuff

Try the “Deep Sample” Instead of the “Shallow Survey” In Part 2 of my series on public speaking, I explained how to make your tone engaging. But how do you make your content engaging? Let’s use an example. If you’re a lawyer, you have probably seen presentations on the duty to preserve electronically stored information (ESI) for litigation. If you’re not a lawyer, count yourself lucky. ESI was a hot topic in legal circles—until lawyers got sick of it. But it is still an important topic, because failing to preserve ESI can result in sanctions for “spoliation” of evidence, and that is a trial lawyer’s nightmare. So let’s say you are assigned to talk about preservation of ESI for 45 minutes. How would you make your content engaging? 1. Substance vs. Fluff First, you want to strike the right balance between substance and fluff. People often complain that seminar speakers sound like they are just reading their papers. You could easily give a 45-minute summary of the facts and legal holdings in five key cases on spoliation of evidence. This might be engaging if everyone in your audience is fascinated by spoliation law, but for most people that would be too much substance. Or you could spend 45 minutes talking about your law practice, how e-discovery has taken all the fun out of litigation, and why preservation of ESI is really important. Tell a few war stories, show some cartoons about e-discovery, and maybe throw in a photo of Hillary Clinton with a caption about deleting emails. If you are actually funny (see Part 1), you might hold the audience’s attention, but they will leave the presentation feeling like there was too much fluff, not enough substance. The best presentations expertly manage to entertain and inform at the same time. Most of us are just chasing this ideal, but once in a while you will run across someone who does this just right. Take a lesson from that person and

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strive for the right balance of substance and fluff. Cover some key points of spoliation law, but illustrate them with memorable stories. 2. The “Deep Sample” vs. the “Shallow Survey.” Selecting the topics to cover and the amount of detail to devote to each topic is critical to making your content engaging. Many speakers go wrong by trying to cover too many topics and covering each one with either too much or too little detail. For simplicity, let’s assume that the subject of preserving ESI consists of these topics:

1. The Zubulake cases 2. Other notable spoliation cases 3. Key Texas cases on spoliation 4. Federal rules on spoliation sanctions 5. How to issue a litigation hold 6. Technical issues with preserving ESI 7. Ethical issues concerning spoliation of evidence

Given 45 minutes, many speakers would try to cover all seven topics, devoting about six minutes to each topic. The result would be a relatively shallow treatment of each topic, the “Shallow Survey.” Graphically, it looks like this:

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Here’s the problem with the Shallow Survey: Unless the subject is totally new to your audience, they probably won’t learn much they didn’t already know. On the other hand, some of you may share with me an almost obsessive compulsion to be comprehensive and detailed when covering a topic. You try to pack a treatise into a 45-minute presentation. I call this the “Attempted Comprehensive Survey.” Graphically the plan looks like this:

The problem, of course, is that you are going to run out of time. That’s why I call it “Attempted.” You feel rushed and get stressed. When an audience member asks an interesting question, you brush it aside so you can get back to your 75 bullet points. When the moderator holds up a sign that says “5 minutes left,” you’re not even half way through. Instead of doing the Shallow Survey or the Attempted Comprehensive Survey, try the “Deep Sample.” It looks like this:

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Pick three of the seven topics you find most interesting, and cover them with enough detail that you are teaching the audience something they didn’t know. (TexasBarCLE gives similar advice in this helpful video.) Then you can relax and cover each point as fully as you want. You might even have time to interact with the audience (more on this coming in Part 5). Don’t worry about the points you didn’t cover, especially if they are in your paper. By the way, the Deep Sample can also work in the courtroom (more on this coming in Part 4). 3. Concrete vs. Abstract There is a danger in making a presentation too concrete. For example, in spoliation law there is a seminal series of cases called Zubulake. If you want to impress your date at a cocktail party, just say stuff like “yeah, Judge Scheindlin got it right in Zubulake IV, but she just took it too far in Zubulake V.” Anyway, if I spent 45 minutes explaining the facts, holdings, and reasoning of the Zubulake cases, it would certainly be concrete. But it would be missing something critical: general lessons. You need to connect the dots and tell your audience the key “takeaways” from the presentation. Try to boil this down to three or four important things to remember. These lessons will necessarily be abstract, but that’s the point.

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Imagine someone in your audience goes back to his office and is asked, “so what did you learn from that presentation?” If he struggles to know what to say, you didn’t do your job. On the other hand, the danger of making a presentation too abstract is obvious. It’s hard to learn from pure generalities. This is the very reason law schools typically use the case method: studying cases that show the development and application of general legal principles, rather than just reading treatises that summarize the general principles. Imagine a presentation on spoliation law that consisted of reading the applicable rules of civil procedure. Not very engaging. It would be like trying to learn contract law by simply reading the Uniform Commercial Code. Truly understanding the general principles is difficult without names, facts, and stories. Instead, find a way to make your key points concrete (again, TexasBarCLE has a nice video making the same point). There are many effective ways to do this. If you’re speaking on the duty to preserve ESI, you could use Zubulake as a case study, going over the specific facts and then drawing out the general principles. Or you could pose a series of hypothetical questions about ESI issues, with multiple choice questions for the audience to focus their attention. Or, if you are writing a blog post about public speaking, you could make your points more concrete by using a specific example, like giving a presentation on the duty to preserve ESI. See what I did there?

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Part 4 – Less is More

Too Much of a Good Thing Can Keep Your Presentation from Being Great This Part 4 of my 5-part public speaking series is a little different. Parts 1-3 covered how to make a good presentation. This installment is about how to go from making good presentations to making great presentations. I have seen many good lawyers (including myself) make presentations that were good but not great. The problem is somewhat counter-intuitive: the very things that make good lawyers good can keep their presentations from being great. Good lawyers are thorough, prepared, detailed, and knowledgeable. Because of these very traits, good lawyers often try to do too much of a good thing. As George Harrison sang in 1969, “It’s All Too Much.” 1. Too Many Words Too Fast Lawyers today talk too fast. They do this even when the judge—or court reporter—interrupts them to tell them to slow down. Heed their advice and take your foot off the gas. This is partly because the court reporter has to get everything down. But the more important reason is that it is harder for the audience to follow your argument when you talk too fast. Slowing down can also help you sound more confident, more authoritative, and more persuasive. I once listened to the recording of the oral argument from Gideon v. Wainwright, a landmark U.S. Supreme Court case from the 1960s. I was blown away by the stately cadence of Abe Fortas, the famous lawyer (and later Supreme Court justice) arguing for Gideon. He had you hanging on every word.

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Abe Fortas: The dude knew how to take his time

Shortly after that, I listened to an oral argument at today’s U.S. Supreme Court. It felt like I was listening to a New Yorker order a combo meal at a crowded McDonalds. This is partly due to the shorter time allowed for argument these days. Sometimes talking quickly is a necessity in order to get your points in. But going fast doesn’t make your presentation more persuasive. 2. Too Much Repetition Juries often complain about lawyers repeating themselves too much. “We get it, you don’t have to tell us so many times!” The problem for the lawyers, of course, is that we can’t turn to the jury and say “ok, do you get it now, so I can move on to the next point?” Still, lawyers often spend too much time reiterating points that were already made in the papers filed with the court. Sometimes this is necessary because the judge hasn’t read the papers, or you don’t know how much the judge has read. But sometimes you can tell the judge has read the papers and understands the basic issues in the case. I watched a hearing where the judge repeatedly gave cues that politely indicated, “ok, I get it,” but the lawyers continued to hammer away at the same points they had packed into their PowerPoint presentations. Which brings me to . . .

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3. Too Much PowerPoint Don’t get me wrong. I love PowerPoint. I use PowerPoint. I get it. We are told you can’t hold people’s attention today with just words. You have to reinforce your points with visuals. Plus, to justify your hourly rate you have to show your big corporate clients how sophisticated and “tech savvy” your firm is.

I'm not "tech savvy"

But don’t make your presentation less effective just because you’re now expected to make it a certain way. Watching a recent hearing with top-notch lawyers, I couldn’t help feeling the whole PowerPoint thing has just gone too far. It’s a combination of several things:

1. Too much PowerPoint instead of old-fashioned storytelling and teaching 2. Too many slides consisting of traditional bullet points 3. Too many bullet points on each slide 4. Too many slides, period

Here is the key: PowerPoint slides should reinforce what you say, not distract from what you say. What is the audience supposed to do while you are talking and showing five detailed bullet points at the same time? Try this: cut the number of slides in half, use visuals instead of the usual bullet points for half of them, cut the number of bullet points per slide in half, and make each bullet point half as long. I promise it will be more effective.

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4. Too Many Cooks I’m a little biased on this one. In litigation, I like the philosophy “one riot, one ranger.” At my last jury trial, I sat at the counsel table with two clients while a third client sat behind us in the gallery with his wife. No other lawyer. No legal assistant. No expert witness. No “tech guy” running PowerPoint or Trial Director. I liked the contrast it presented with our opponents, who had a small army on their side of the courtroom. And guess what? We won.

This is not what you want

Of course, some matters may require a larger team of lawyers. But when you go to court, there are two ways to decide how you are going to divide up your presentation time: what is best for the case, or what is best for the lawyers. When a side divides its presentation time among three or four lawyers, it makes you wonder. Was dividing the time between that many lawyers the most effective way to present the case to the judge? Or was dividing the time necessary because all of the lawyers are very important people who need to get their moments in the spotlight? Would it have been more effective to cut the presentation time in half and use half as many lawyers? To put it another way, if you’re coaching an NFL team, do you split time between two quarterbacks because one of them is a first-round pick with a big contract, or do you stick with the undrafted free agent who is on a hot streak and more likely to win the game?

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I don’t claim to have all the answers, but these questions need to be asked. And questions like these arise in every litigation matter. Too often, lawyers staff cases based on the needs of their law firm rather than the needs of the case and the client. 5. Too Many Points All the problems above relate to a fundamental and typical mistake: too many points to make in too short a time. But I’ve already broken my own rule by trying to cover too many topics in this post. So tune in to the final Part 5 to find out how to focus your presentation to turn it from good to great.

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Part 5 – Improvisation

Focus the Number of Points in Your Presentation to Leave Room for Interaction with Your Audience Politicians and business leaders are taught to stay “on message” when speaking to the press. A client once explained it to me this way. Let’s say the CEO of a company wants to talk about elephants. A reporter or analyst asks her a question about bananas. “That’s a great question about bananas,” the CEO is supposed to say. “I’m so glad you asked about bananas,” she continues. “Now, let me tell you about some of the great things we’re doing with elephants . . .” Staying “on message.” Good for politicians and CEOs (I guess). Not so good for lawyers and other public speakers who want to interact with an audience. But why do you want or need to interact with your audience? Well, it depends. If you’re trying to bypass the press to get a message out to the public, then interacting is not your goal. But if you’re trying to teach or persuade your immediate audience, then interaction is critical. Because teaching and persuading is not about you. It’s about the people you are trying to teach or persuade.

Whether it's a classroom or a courtroom, interaction is critical

Has this ever happened to you? You are in some kind of classroom setting and the teacher is going through a typed outline of the 23 points he wants to make. Someone interrupts with a slightly oddball question or comment. The teacher says “yes, that’s interesting” and then quickly returns to his outline.

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The same kind of thing often happens to lawyers in a courtroom. A lawyer is making his elegantly crafted argument when the judge interrupts and asks a question that suggests the judge is hung up on a different issue. “Yes, your honor, that’s our position,” the lawyer says, “but let me get back to the point I was making . . .” In both scenarios, the speaker treats the tangential question or comment as an annoyance, a verbal fly to be swatted away. The person who asked the question then feels a little frustrated. “Why am I even here?” she thinks. “This guy doesn’t really care about my questions.” Now imagine the teacher takes a different approach. When a student asks a question that goes off on a tangent, the teacher says, “I don’t know, what do you think about that?” The student starts talking about a personal experience, getting more animated. Another student jumps in and starts talking about a similar experience. A third student says she disagrees with the point they are making. Pretty soon a full-blow discussion has broken out. After 15 minutes the teacher returns to the outline. He runs out of time before covering all his points, but the students leave the class excited about the topic. Don't be annoyed when an unexpected question gets you off track. This is where the magic happens! You want to get the audience involved. The same is true in litigation. Let’s reimagine our courtroom scenario. When the judge asks a question about a different issue, instead of getting annoyed the lawyer thinks “thank you for letting me know what you’re thinking.” He spends five minutes addressing the issue raised by the judge—and even hands the judge a highlighted copy of a case addressing that very issue!—before returning to the other points he wanted to make. People call this “thinking on your feet,” and it is often said to be the key to being an effective courtroom lawyer. (In state court in Texas, we sit while questioning witnesses, so maybe “thinking on your seat”?) The point is that you need to be able to react to something unexpected that happens in the courtroom and turn it to your advantage. In other words, you need to be able to improvise. Sometimes when people say "thinking on your feet" is important, the implication is that being a good trial lawyer is more about having a certain kind

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of personality than doing your homework. But the truth is a little counter-intuitive: effective improvisation requires more preparation, not less.

Preparation is the key to "thinking on your feet" in court

Jazz musicians get this. You can find improvisation in just about any musical style, but jazz raises improvisation to the highest level. Great jazz musicians don’t just get up there and play some random notes that pop into their heads (even if it sometimes sounds that way to uninitiated ears). They have developed an immense musical vocabulary from thousands of hours of practice. They know what every note sounds like played against every chord. When the bandleader says “Night in Tunisia,” they already know every chord change. It is only through years of preparation that they become master improvisers. It works the same way in public speaking. Effective interaction with the audience requires greater preparation, in three ways. First, you need to take the time to master the topic. This is the hardest part because it can’t be done overnight. But there are some shortcuts. Keeping up with recent developments will go a long way towards effective interaction. For example, I was giving a presentation on the Defend Trade Secrets Act when someone asked about injunctions. I didn’t have to read 100 years of injunction case law to have an answer, because I was able to point out a recent injunction case I had written about here.

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When you do your homework, you're ready for anything

Second, you need to anticipate concerns your audience is going to raise and plan specific responses. Don’t spend all your time on the points you think are important; think strategically about the questions that are likely to be important to your audience. I had a trade secrets trial where opposing counsel was cross examining my client and asserted you couldn’t find a certain kind of industry information just by Googling it. On re-direct, I handed my client a stack of printed Google search results that showed precisely the opposite. Admittedly, it was part luck, but it was also preparation. Third—and this may be the most important point—you need to narrow down the number of points you plan to make. Then, instead of hurrying back to your outline, you can relax and take time to interact with the audience. Instead of the Attempted Comprehensive Survey, opt for the Deep Sample (see Part 3). Instead of packing more bullet points into your PowerPoint (see Part 4), think about which points are most important to persuading or teaching your audience. Even if that means you have to talk about bananas instead of elephants.

Zach Wolfe is a Texas trial lawyer who handles non-compete and trade secret litigation. His firm Fleckman & McGlynn has offices in Austin, Houston, and The Woodlands.