A lawyer has but two tools. Those two saws had better be kept sharp.
A lawyer’s toolbox has but two tools – writing and speaking.
A lawyer must know the law and the facts of a client’s case. Thoroughly. Inside and out. But, that is not enough.
It does little good to be right. A lawyer must convince others. If the lawyer is not persuasive enough then those others – also known as judges and jurors – will decide the lawyer is wrong, no matter the merits.
“So long as advocates think of writing as a frill, or as mere polish to be applied to fact summaries or case briefs, they cannot begin to succeed.” Bryan Garner – probably the most renowned authority on good legal writing – asserts that “a large percentage of briefs are so poor that judges find them a grave disappointment.”
The same can be said – and has been said – about oral argument.
“Too many, far too many, lawyers burden courts… with poorly prepared, poorly presented, and thoroughly unhelpful arguments….”
“[The thing] that has astonished me most is the number of disappointing arguments to which courts have to listen.”
“[T]he law has little place for trained eloquence, and has remarkably few rhetoricians. On many occasions judges themselves have admitted that forensic elocution is a sadly neglected and decaying art. The bar student is under no obligation to make a study of it, and the seasoned practitioner, burdened with other duties, scarcely gives it a thought.”
“Chief Judge Lumbard of the Second Circuit, in a recent speech before the New York State Bar, deplored the decline in the performance of the appellate bar, saying that in his experience not more than one out of ten cases is well argued.”
But when done well – “Nothing can equal the experience of seeing the great advocates at work in the courts and catching the magic of the spoken word, for it is not so much what is said but the manner in which it is said that matters.”
Along with many other pearls of wisdom, Garner encourages lawyers to
- Develop a clear, strong, pleasant voice;
- Purge your speech of “ums,” “ers,” and “ahs;”
- Speak with deliberation and force. Avoid speaking too fast, too loudly, or too quietly;
- Learn the value of pausing occasionally, at appropriate points.
One way to develop these skills is to speak at every opportunity. Garner encourages lawyers to speak at every wedding and family reunion – and to join Toastmasters.
Indeed, at Toastmasters every week we work on every one of those Garner suggestions, and many more.
The work of developing written and oral advocacy skills is never done. A lawyer is “like a natural athlete who takes up a new sport; now all they need to do is learn the sport itself.”
Indeed. And, an athlete does not wait until the event itself to hone skills. An athlete trains constantly.
The courtroom is game-time. So in the meantime, we should all pad up and hit the practice fields.
 Girvan Peck, Writing Persuasive Briefs, 7 (Little, Brown & Co. 1984).
 Bryan A. Garner, The Winning Brief, preface at xi (2d ed., Oxford U. Press 2004).
 For these and many more examples, see Bryan A. Garner, The Winning Oral Argument, 10-13 (Thomson/West 2009).
 Bryan A. Garner, The Winning Oral Argument, passim (Thomson/West 2009).
 Girvan Peck, Writing Persuasive Briefs, 6 (Little, Brown & Co. 1984).