I have listened to, and given feedback on, something like 20,000 pieces of advocacy.
And in the years doing so, I think I have a clear winner for the oddest truth about how people communicate less effectively when in a formal courtroom than in real life.
The everyday skill, which everyone displays in ‘real life’ but which they leave at the court door and strangely discard its power…is…..’pitching’.
I’m not sure if I have used the perfect word by calling the skill ‘pitching’ but this is what I mean. Let’s say that you have 3 reasons for doing something, and one of them stands out much more than the other 2. In normal conversation, we express the relative importance of the 3 reasons with a varied ‘pitch’ in the voice.
Imagine you ask someone how they are feeling. A female friend let’s say. She replies ‘rotten’. You ask ‘why?’. She thinks about it. ‘Well…’she starts, ‘there are a few things that aren’t going great for me right now.’ You listen and don’t interrupt. ‘The MAIN problem is that work is still really stressful…’ and on she goes.
Our friend will place significant vocal stress on the word ‘main’, and broadly corresponding stress on the word ‘work’. The topic of ‘work stress’ is being vocally elevated. It’s number one. If this conversation was a newspaper, the ‘work stress’ topic is going to have the front-page leader.
So back then to our imagined conversation. We talk a bit about our friend’s crappy work. Then she moves the conversation on. ‘I’m sorry’, she carries on ‘But you know what else is bugging me, I picked up 2 parking fines last week. Haven’t had one in years, but then 2 in a week. My phone ran out of battery and there are no damn parking machines any more…’. And off we go on topic 2. But the tone and emphasis for topic 2 is dialled down. This is an irritant. It’s not like the problems at work.
The speaker, who narrates to us, wants to help us in 2 ways. First, by really stressing the main points so that they rise above the others, we know how to focus on what matters most to our friend. If our friend pushed ALL her troubles onto us at THE SAME level, it would be harder for us to know just how to pitch our response.
The second way that pitching helps is that it allows the parties to decide together how long to stick on the topic. The speaker is showing a lower attachment to a less critical topic, and shows a greater readiness to give it up if the other party wants to. No loss of face. No awkwardness.
So pitching is absolutely ‘every day’ in normal conversations. But in the courtroom, both junior advocates, and indeed most witnesses, abandon doing it. They seem driven to standardise their speech, and present all evidence, all ideas, all thoughts, all reasons, all interpretations EVENLY. Like the person reading the football results. Calm. Rhythmical. Unvaried.
I think that this is a serious failure to live up to our ordinary skill set.
When I coach advocates and witnesses, I can normally encourage and can get them to find a bit more umph for the big points that they want to make. Advocates can normally be encouraged to upgrade a key point and make it a bit more ‘stand out’. The tone and the wording improves, and I might hear something more like:
“Your Honour, I make 3 submissions. It is really my first submission which is the heart of this application, and the primary reason why I submit the court can safely grant… (whatever it is that is being applied for)”.
Giving emphasis to a good point is the first step in pitching well. The next point is how to sell the lesser point without sabotaging it, or making it seem worthless.
Imagine that we have delivered the main point. We are off the front page. Some advocates then say (trying to distinguish this point from the major first point) something like;
‘I now turn to my second point which is not particularly strong or important”
NO!!!
I’d rather have the standard and unpitched version than that.
So, how do we make a smaller point still add value? Let me suggest a form of words that might help. How about something like:
“If the court needs any further persuading, I have 2 more submissions, which both add support to the view I invite the court to take. I can take these more shortly. They may help ‘tip the balance’ if the court remains conflicted on the matter”
The advocate here is showing that if the first point was wonderful, and the application has already succeeded, there is the offer to the judge of saying so. If the advocate is still a mile off success, the judge might indicate that the advocate is coming up well short. BUT if the case is CLOSELY FOUGHT then another point of two, even smaller points, might nonetheless, make all the difference. That is not without worth or value.
A witness can do much the same.
If you are a police officer, and you made a decision for 3 reasons (but where one stood out), you can do just the same thing.
“I recall that the investigation considered 3 priorities. We had to keep X in mind, (and we did), we had to keep Y in mind (and we did), but we felt that the critical priority, and the one that most heavily influenced us was Z. We might have done what we did for Z alone, but we found that X and Y just helped us to feel sure that we had made the best choice.”
If you can sell points at their respective value, you will stand head and shoulders above many inexperienced advocates and witnesses.