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Gesture In The Courtroom Part One: Gesture Is Everywhere

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hunter_marshawritten by Marsha Hunter, Program Director of NITA’s Articulate Advocate

Every professional engaged in public speaking should have an answer for the pivotal question “What do I do with my hands while I talk?” Few speakers know the answer, and few trainers are equipped to confront the question with effective teaching. Yet gesture and speech are fundamentally connected neurologically and linguistically. To train for public speaking without using good data on gesture is to ignore almost half of the task. This article draws on data from recent research and on decades of observation of lawyers engaged in speaking in the courtroom and elsewhere; it describes techniques for teaching gesture that yield measurable results. The discussion here is about gesture during extemporaneous speech, which includes the majority of legal professional speech from the courtroom to the boardroom. This article is not about writing and delivering a speech — or reading from a text. It is about what lawyers do for hours on end: talk.

Gesture Is Everywhere

Paul Clement gestures for a living. He also talks, of course, and surprisingly, he cannot do one without the other. A former Solicitor General of the United States, Mr. Clement has appeared before the United States Supreme Court dozens of times, and is a respected and successful advocate in any forum. In a profile of Mr. Clement by The New York Times, Kevin Sack observed, “Mr. Clement is admired by colleagues and adversaries for the straightforward clarity of his presentation. He famously argues without notes, leaving his hands free to jab and gesticulate, sometimes as if wringing an imaginary neck.” When Paul Clement argues, he talks with his hands.

All day every day, all around you, people gesture as they speak just like Paul Clement. Your children, your spouse, and your friends all gesture. At work, your boss and colleagues engage in ubiquitous patterns of arm and hand movement. On the streets outside your office, people gesticulate while on the phone, walking dogs, driving, and asking for directions. Police officers gesture. Checkout clerks gesture. Bankers, farmers, scientists, waiters, doctors, lawyers, judges, defendants, and plaintiffs — all are moving their hands in the predictable, elegant, evolutionary, and unavoidable act of gesticulation.

Why is everybody talking with their hands? They do it because they are human. For Homo sapiens, language and gesture are inseparable. Some people are big gesturers, some are small. But there are no exceptions. Weirdly, most gesture goes unnoticed. It is virtually invisible because it is an automatic function. Our hearts beat faster with exertion, our neurons fire when we calculate sums, and our hands move as we talk.

In the law, the topic of gesture is controversial. There is still a strong outdated belief that lawyers should be able to speak without gesturing — a powerful myth that still hands are preferable. Law professors instruct students to grip lecterns to prevent their hands from moving. One theory of legal training embraces acting techniques, following the false logic that because actors are trained to speak without gesture, lawyers should mimic that behavior. Some judges have tyrannical views toward gesture. On the website of the United States Court of Appeals for the Federal Circuit, a page entitled, “Court Decorum” states, “Inappropriate facial gestures or exaggerated gesticulating is forbidden.” A student of mine clerked for a judge who threatened to hold lawyers in contempt for gesturing during argument. Hands were to stay firmly joined to the lectern — language, individual style, and scientific evidence be damned. A mountain of gesture research proves not only that this idea is wrong, but also a relic of class prejudice dating back to at least the Middle Ages, when peasants were presumed to talk with their hands, while landed gentry and nobles were not.

Such notions were debunked decades ago. It is time for the legal profession to wake up to reality. It is useless and even damaging to instruct lawyers that clinging to lecterns will prevent their hands from moving while they speak. Judges who forbid gesture must look at the evidence. Law professors should examine the science. As a communication consultant in the legal profession, I call upon my colleagues who are trainers and professional development managers to improve how we train lawyers.
We should not train lawyers to behave like actors who declaim their memorized lines from a stage. The magical thinking that hands have no part in language should be banished. The notion that lawyers should not move their hands when they speak is hearsay, with not a shred of evidence to support it.

Preventing speakers from gesturing is not only an arcane notion, it can trigger significant problems. Attempting to talk without moving one’s hands robs lawyers of confidence and ensures that they will not speak as well as they might. In my communication consulting practice with Brian K. Johnson, we see lawyers every year who suffer distress from being told not to gesture. Some have even sought medical and psychological help. Imagine if a young associate needed beta-blockers in order to write a memo! In 2014 alone, I have coached two attorneys who report feeling extremely awkward, as if in a straightjacket, as they attempt to think and speak without their normal gesture.

Teaching gesture, then, is partly about education, but also about breaking through this odd belief that hands should remain still as a lawyer speaks. There are other topics to cover in public speaking and advocacy training, of course. There is the rest of physiology, including how to stand, breathe, focus one’s eyes, and display the proper game face. There are cognitive issues, such as how to think clearly when the pressure mounts, how to organize ideas, and how to respond to questions or objections. One must learn to speak loudly enough, and fluently, with proper emphasis and prosody. The linguistic challenge of courtroom procedure is a major topic. Without gesture, however, none of these other skills will flourish. Natural gesture is the golden key to articulate speech.

The word “natural” implies that nature, not nurture, lies at the heart of this discussion. But nature and nurture are both present in the impulse to gesture. A trainer must be able to perceive both. She must determine if a student is gesturing in a fashion that appears to be relaxed, productive, and unconscious. This behavior is observable and quantifiable. On the other hand, if a student is stiff, with fast, small, jerky hand movements, appearing ill at ease and inhibited by anxious movement, this too is quantifiable behavior. A coach must discern gestural nuance and prescribe a remedy.

Why can’t we revert to what some law professors, judges, and legal trainers espouse? Why can’t we just impose a new, non-gesturing style? We cannot do it because it cannot work. Seasoned lawyers who appear often in court gesture, like Paul Clement. Fluent, polished attorneys who are confident, experienced counselors talk with their hands.

When I first began teaching for the National Institute for Trial Advocacy in 2000, I was eager to study the speaking styles of my faculty colleagues. It was immediately apparent that their personal gestural styles were all different. One had long, graceful fingers and circular gestures. Another’s hands moved horizontally, smoothly emphasizing words and ideas in a large area in front of his torso. Another stood still with feet almost touching, gesturing in a small zone, hands repeatedly opening in a palms-up motion, as if literally giving information to listeners. One had big, strong gestures that would pause and hang in midair, then move on as a thought concluded. Several turned their hands sideways in a chopping motion that emphasized passion, outrage, relief, or humor, depending on the moment. Some literally drew pictures in the air — tracing timelines, following the money, or showing where to write on an imaginary jury form.

The one thing they did not do was stand with their arms straight down at their sides while speaking. They sometimes listened in that position, or dropped hands to their sides when interrupted by an objection or a judge. But as soon as they had the floor again, hands rose immediately to assist with speech.

After 14 years of intense observation, I now estimate that speakers move their hands upwards of 95% of the time they are talking. For many speakers, the number is nearly 100%. They never stop using their hands to think, emphasize, organize, shape, and conjure language. Most amazing, both speakers and listeners are mostly unaware of the elaborate choreography of moving hands unfolding right under their noses.

This invisibility factor has several explanations. A large percentage of gesture occurs in a listener’s peripheral vision. The center of our visual field has the best focal clarity, with peripheral vision less sharp. Our visual system softens the periphery to keep us from becoming distracted by it. We are not very aware of gesture because we do not see it clearly. We process the information gesture contains, but mostly beneath conscious access. Combine peripheral vision, the false belief that hands should not move, and the mistaken notion that lawyers should mimic actors, and it is easy to see why misconceptions about gesture accumulate. Luckily, we have a rich body of research to explain the underlying processes.

About the Author
Marsha Hunter, a specialist in legal communication, trains attorneys to speak confidently and persuasively in all settings. Marsha is a partner in Johnson & Hunter, Inc., with legal clients in the United States, Canada, Australia, and Europe. She teaches communication skills for NITA at our Articulate Advocate program.

NITA Receives “ACLEA’s Best” 2014 Award of Outstanding Achievement in Programs

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photo[August 12, 2014, Boulder CO] The National Institute for Trial Advocacy was honored by the nation’s preeminent current legal education association as an “ACLEA’s Best,” receiving the 2014 Award of Outstanding Achievement in Programs. This 2014 award, occasioned by NITA’s redesign of the NITA Rocky Mountain Building Trial Skills Program, honored several NITA innovations, including incorporating a “flipped classroom” approach in the Rocky Mountain learning sessions. It was awarded at the ACLEA Annual Conference in Boston last week.

What does this honor mean for the lawyer? That, even regardless of CLE requirements, NITA’s programs are and will continue to be among the very best investments that earn gains for the lawyer already in practice. “This 2014 Award underscores that NITA’s work is dynamic, its teaching relevant to changes in the practice, and its programs essential for every trial lawyer and future trial lawyer,” said Karen M. Lockwood, Executive Director.

What makes the Rocky Mountain Building Trial Skills Program award-winning? The award recognizes several innovations.

  • First, NITA prerecorded the Rocky Mountain Program’s lectures and demonstrations, offering them online to program participants shortly before, during, and briefly after the course. “Making this information available outside the program permitted us to increase the amount of performance time at the program—sometimes by as much as two hours each day,” said Program Director and designer of the Rocky Mountain Program, Mark Caldwell of NITA.
  • Second, NITA ran and filmed an actual focus group addressing the case file to be used for the program. By watching it online, participants improved their pre-program case analysis, ability to design direct and cross-examinations, and insight into questions appropriate for jury selection. Over ninety percent of program participants viewed the focus group recording before and during the live program.
  • Third, the NITA program faculty added individual coaching to their teaching arsenal. Building on the legendary NITA-specific faculty critiques and video review feedback, faculty added coaching opportunities to help participants try out faculty’s suggestions for improvement. Participants take this coaching back to the performance room, and see the quality of their own skill further improve.

In past years, NITA received recognition for its books, online deposition programs, and marketing. These 2013 innovations were introduced at the Rocky Mountain Trial Program by Mark S. Caldwell, NITA’s Program Development and Resource Director. Caldwell and Hon. William D. Neighbors serve as co-Program Directors of Rocky Mountain Trial. Team Leaders Hon. F. Stephen Collins, Andrew Deiss, and Amy Hanley also contributed to incorporating these innovations.

NITA is the premier provider and the originator of “learn-by-doing” trial skills training programs. Headquartered in Boulder, CO as a non-profit, it boasts over 700 faculty members around the nation who are trial lawyers, judges, or professors. Founded in 1973, NITA has achieved ongoing innovation in learning, and the respect of the legal profession and law schools.

The Association of Continuing Legal Education Administrators (ACLEA) is the national trade organization for continuing legal education providers, bar association training arms, law firm professional development, and law school CLE instructors. Each year, ACLEA recognizes achievements in program design, publications, and marketing. Receiving an award is acknowledgment by peers for excellence in providing containing education for lawyers.

Teaching with NITA: A Report from the Rocky Mountain Basic Trial Program

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This article was re-posted with permission from Chris Behan and the Advocacy Teaching Blog

Suparna Malempati is the Director of Advocacy Programs at Atlanta’s John Marshall Law School. From time to time, she guest blogs for us. In this blog, she shares her recent experience teaching in a NITA program. I wholeheartedly endorse all she has to say about teaching with NITA, and I recommend the experience for anyone who loves trial advocacy, teaching, learning, and having fun with a great group of people.

The end of an enriching work trip is often bittersweet. On the one hand, you are glad to be home to familiar surroundings and the routine of daily life. On the other hand, you miss the intellectual challenge of being in the company of highly accomplished professionals. I certainly felt that way after four days of teaching with NITA at the Rocky Mountain Basic Trial Program. 

I had wanted to teach with NITA for years. I am not entirely sure how I finally ended up on the roster, but I am grateful to Mark Caldwell for allowing me the opportunity. The program was extremely organized and well run.

I was asked by a few people whether it met my expectations. But before I arrived in Boulder, I truly was not focused on what the experience would be like for me. I was primarily concerned with my own preparation. I reviewed all my notes from the NITA teacher training, I re-read Steven Lubet’s book, I watched all the NITA webcasts, and of course, I read the problem. I wanted to make a good impression and I wanted to impart something useful on the participants. And I hope I did. 

The program was designed to provide maximum time for participants to be on their feet executing skills, while allowing for continuous faculty feedback. The pace of each day was constant, with very little down time. Students received oral feedback from at least two faculty members, individual feedback on their videos, and one-on-one time with a faculty member to repeat the skill. Organization of all the moving parts was tremendous and effective. 

What impressed me as well was the camaraderie among the faculty and the sincerity with which they all approached their task. Our common goal was to impart useful advice, skills, and tips to new lawyers to help them improve their trial techniques. Each and every faculty member brought a unique perspective, but shared the desire that the students grow from their participation in the program. The students were also sincere and eager to learn. The combination of exceptional faculty and earnest students made the experience phenomenal.

Moreover, I learned a great deal from my colleagues. Trial lawyers do not mind when other trial lawyers use their material—we permissibly steal from each other. I am renewed and excited to continue teaching trial skills and advocacy. And if it is not completely obvious, I thought the program was fantastic. 

Suparna Malempati 

Ensuring Top Notch Advocacy for Children and Families

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written by guest blogger and NITA Program Director Theo Liebmann.  Theo Liebmann is the Clinical Professor & Director of Clinical Programs at the Maurice A. Deane School of Law at Hofstra University.

childAdvocacy2As the Training the Whole Child Program approaches its tenth anniversary, it’s time to wallow in some nostalgia and take a look back . . . .

The Whole Child Program came to Hofstra in 2004 under the leadership of NITA stalwarts Angela Vigil, Mike Dale, and Andy Schepard.  Andy recruited expert faculty from around the country, and we have always mixed in NITA veterans like Angela, Mike, Sandra Johnson, and Ben Rubinowitz with newer stars like JC Lore and Zelda Harris, as well as local Legal Aid standouts like Brian Lamb, Carolyn Kalos, and Carolyn Silvers.  The mission of this crew has always been to use NITA techniques to improve the skills of public service lawyers who represent vulnerable children and parents in overcrowded family courts—a client population in desperate need of high quality representation.  Based on a case file developed by Angela, Tom Geraghty. and Diane Geraghty, the Program made some important choices right from the beginning that, in hindsight, were on the cutting edge:

  • Both the child protection and juvenile delinquency cases in the case file would be heard in a unified family court (“one judge, one family”) for the State of NITA, a practice which was much less common when the Program started, but now is widespread.
  • The child protection case was referred to a specially designed child protection mediation program, another practice that, while rare ten years ago, is now commonly seen.
  • Participants would represent Eva Pena (the child) without substituting judgment.  In other words, they would advocate for Eva’s stated position, regardless of whether that would serve her best interests.  Again, the Program was ahead of the curve, adopting a stance that is far more common today than in 2004.
  • The highlight of the Program soon became the brilliant segment on interviewing children that involved participants working with actual youth in foster care who belong to an organization that promotes advocacy for foster children.

While the participants have at times groaned a bit under the Program’s intensive workload, they deeply appreciate the training they are given and the effort and dedication that goes into it.  Here are a few sample quotes to leave you with and no better way to say Happy Birthday to this program!

I signed up for this class to try to overcome my “shyness” and lack of confidence.  The whole experience surpassed any and all expectations I had. I not only walked away with greater confidence in my abilities, but I was fortunate enough to meet so many wonderful people who care as passionately as I do about children and the law.

I signed up to really hone in on the nuances of my practice as well as correct some bad habits that have fallen into place. I feel confident and energized after finishing the program. I can’t wait to use some of the things I learned.

I knew that I had bad habits but was unsure on how to resolve these habits. My scripts now are getting sharper, more precise and less room for a respondent to take charge of the questioning. My closing statements are more structured.

People told me that I would work hard and learn a lot from any NITA course.  They were right!  This specific course, Training the Lawyer to Represent the Whole Family, is much needed in the field.  I believe that as more practitioners take this course, the quality of practice in the field will increase and so will the outcomes for children and families in juvenile delinquency and child protective proceedings.  Keep up the great work!

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Urgent Notice:

You may have heard the NITA Foundation is trying to raise $12,821.60 by March 31, 2014, to fund this vital New York child advocacy program through the NITA Foundation Public Service Program Fund. NITA cannot provide this and other public service programs without donor support, so please give today by visiting www.nita.org/Donate

NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system. NITA's Goal is to:
  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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