Lessons For Lawyers From The First Presidential Debate
By N. Reid Neureiter
Senior Counsel, Husch Blackwell
The first presidential debate between President Obama and Mitt Romney was a telling lesson in persuasive public speaking. Putting aside politics and policy (who was right and who was wrong; which articulated claims are verifiable and which are made up out of whole cloth), objective observers almost universally say that Romney won the contest. It was not because of what he said. It was how he said it and the energy and passion he brought to the points he made. Romney made us believe that he believed what he was saying.
Joshua Davis, a Boston attorney and radio talk show host was crowned National Debating Champion in 1987. He explained in a recent blog analyzing the first presidential debate that to excel at debate, you need a special personality: “Great debaters, like great ball players, want the ball when the chips are down.”
A strong argument by the debate opponent is no reason to grimace. It is an opportunity. And a great debater, like a border collie desperate to chase the thrown Frisbee, “can’t wait to respond.” Davis boils his debate advice down to one simple idea: “Be enthusiastic about what you are saying and the opportunity you have to say it. Let the judges know that you happy to be in the contest and you want very much to win. Or, said differently, that you want the ball.”
On this score, Romney won the first Presidential debate hands down. He was prepared with at least three examples for every point raised and was excited to share those examples. He eagerly rebutted the President’s points and threw out more of his own.
President Obama, on the other hand, looked tired and appeared to be going through the motions, searching his mind for examples like a student who studied for the test, but did not quite master the facts. President Obama’s answers and attitude lacked the passion that you would expect from a man who actually believed what he was saying. Davis’ debate advice works not just for presidential candidates but for courtroom lawyers as well. The old saw is that trial juries, particularly in lengthy complex cases, sometimes cannot follow all the facts. So the jurors rely on the attorneys (who the jurors presume know the facts in detail) to be the truth tellers. If the jury is convinced the lawyer really believes her case, it is more likely the jurors will accept that lawyer’s version of the facts come verdict time.
The opening of attorney author Scott Turow’s famous novel “Presumed Innocent” teaches the same lesson. In the book’s first lines, the prosecutor protagonist tells how he begins every trial by saying the words “This man has been accused,” and deliberately pointing one finger at the criminal defendant while looking the defendant in the eye.
“You must always point. If you don’t have the courage to point, you can’t expect them to have the courage to convict.” The physical act of pointing tells the jury the prosecutor believes what he is saying. What makes the difference is the passion and the perceived belief of the advocate.
Davis’ advice applies not just to trial lawyers, but appellate advocates as well. At the 2012 10th U.S. Circuit Bench and Bar Conference held at the University of Colorado Law School, former Acting Solicitor General of the United States Neal Katyal explained how he had prepared to argue his first case before the U.S. Supreme Court, the Guantanmo Bay detainee case Hamdan v. Rumsfeld.
Kaytal had mooted the case dozens of times, but something was missing from his presentation. According to observers, Katyal sounded “small” behind the lectern. Katyal’s co-counsel, a military trial lawyer, recommended that Katyal seek advice from a consultant, a nonlawyer acting teacher. Katyal was skeptical. A trial lawyer’s emotional theatrical appeal would not serve well in the Supreme Court. But Katyal made the appointment anyway.
“Tell me your argument,” said the consultant. Katyal reached for his copious notes. “No,” said the teacher. “You know your argument. Tell it to me.” Katyal gave his argument. “Ok,” said the teacher. “Now take my hand and tell it to me again.” So Katyal delivered his argument again, making eye contact and actually holding the hand of his intended audience. That connection with his audience made all the difference. It forced Katyal to not just recite the words he had prepared — it made him deliver his argument with passion and a true sense of belief in what he was saying.
If you can look your audience in the eye and make that emotional connection, then the audience, be it a jury of 12, a panel of nine, or an audience of one, will believe that you believe in your case, making it more likely you will persuade and ultimately, prevail.