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Different Paths to Persuasion

Diversity of Styles on Display at the Recent 2018 ABA Section of Litigation Annual Conference in San Diego

Opposites attract, but do they persuade? They certainly do as the diversity of styles on display at the ABA’s Section of Litigation conference demonstrated. Recently, I had the privilege of serving as a panel member (along with Judge Barbara Lynn of the Northern District of Texas) for the section’s annual “Showdown,” which pits some of the most accomplished trial attorneys against each other.

Based upon a NITA fact pattern, three attorneys conducted cross-examinations of a single witness in the morning session while two gave closings in the afternoon session. Since they were all working with the same set of facts and were all representing the plaintiff in a civil employment case, the themes and arguments were quite similar, and this allowed differences in style, personality and physicality to shine through.

From watching these five successful trial attorneys at work, it was evident that success is as diverse as it is difficult to define. No single style, personality or physical characteristic stood out above the others. What did stand out was how well these attorneys knew themselves, knew how to leverage their strengths and knew their limitations.

It is, for example, commonly-accepted “wisdom” that attorneys with a large, physical presence and authoritative voice have an advantage in the courtroom. And we saw that on full display with the cross-examination by Brad Brian (Munger, Tolles & Olson in Los Angeles). He came out of the gate strong using his voice and stature to command the stage with his shock and awe assault upon the witness. And in, perhaps, the purest assertion of power, he interrupted the witness at points. But, Brad also knew his limits. He was judicious about interrupting the witness knowing that it can backfire if overused. And he tended to stay close to the podium, thus, giving the witness his space and reducing the risk of him coming across as a bully.

Kalpana Srinivasan (Susman Godfrey in Los Angeles) adopted a different approach to her cross. Given her small frame, she spent little time behind the podium. And, because of her frame, she could approach the witness without coming across as threatening. She also used two rhetorical devices effectively; she repeated testimony she found useful and ignored testimony she had no use for. While some underestimate the power of repetition, Kalpana reveled in it. And she knew when to drill down and when move on. By knowing what to repeat and what to ignore, Kalpana exercised control of her message.

The last of the cross-examiners was Mike Attanasio (Cooley in San Diego). Like Brad Brian, Mike is a big guy with a booming voice. Unlike Brad, Mike came across as more of a boxer than a showman. He was dogged with his questions and rarely took his eyes off the witness. But, like Brad, he kept his distance so as not to come across as too aggressive. Despite his relentless questioning, Mike still managed to hear what the witness had to say and adjust his questions accordingly. This was, in fact, one of the few techniques all three of our cross-examining attorneys had in common—an ability to listen and respond on the fly.

Two more styles were on display during the afternoon program on closings. Juanita Brooks (Fish & Richardson in San Diego) is small of stature, who, nevertheless, commands the stage with her voice. Her style was that of a storyteller who used the tone and pace of her voice to keep the audience engaged. Little is said these days about elocution, but Juanita is a master of it. She rolls syllables off of her tongue with studied care and precision. And interestingly, rather than play to the audience (jury), she empowered it by reminding them that attorneys only stand for two things in the courtroom—the judge and the jury.

Tamarra Matthews Johnson (Willkinson Walsh & Eskovitz in Washington, D.C.) gave the second closing. Her style was to stalk the stage like a big cat looking for prey. While Juanita told a story, Tamarra methodically assembled the evidence one logical piece at a time. While Juanita’s rhetorical tools were tone, pacing and elocution, Tamarra used metaphorical language to inflame passions with imagery that went beyond the literal facts. She, for example, described the workplace as the defendant’s “hunting ground,” and the plaintiff as being within the defendant’s “sights.” Rather than empower her audience, like Juanita, Tamarra used self-deprecating asides to identify with them. She, then, finished with a simple, but powerful, clasp of her hands to signal that this would be the final piece to her evidential puzzle.

The Litigation Section audience, Judge Lynn and myself saw five successful trial attorneys utilizing five very different styles, personalities and physiques. Despite these wildly different approaches, we saw a single truth emerge: know your strengths as well as your limits, and to thine own self be true.

Written by Ron Beaton, Senior Vice President. 

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