Using your voice in closing argument.

Author David Ball says that "jurors gauge character largely by sound"(1) and style. To drive home his point, he challenges us to notice how much we conclude about strangers within the first 30 seconds after they call us on the telephone.(2)

We have all been irritated by voices that are nasal, twangy, whiny, shrill, hoarse, harsh, flat, gruff, or raspy. And we have been moved by melodious, mellifluent voices with breathtaking ranges. Most of us know the deep, rich, sonorous voice of James Earl Jones. And many of us would have no trouble picking out the voices of Orson Welles, Jimmy Stewart, Barbara Jordan, Martin Luther King Jr., and Howard Cosell. And, as you can tell from these examples, sometimes a persons image is tied to voice.

Aristotle's admonition that we must "say what we ought" means that voice must not only express emotion and character but also correspond to the subject.

"Correspondence to subject" means that we

must neither speak casually about weighty

matters, nor solemnly about trivial ones; nor

must we add ornamental epithets to

commonplace nouns.... To express emotion, you will

employ the language of anger in speaking of

outrage, the language of disgust and discreet

reluctance to utter a word when speaking of

impiety or foulness, the language of exultation

for a tale of glory, and that of humiliation for a

tale of pity; and so in all other cases. This

aptness of language is one thing that makes

people believe in the truth of your story....(3)

Before going further, let me issue these caveats about using your voice in closing arguments:

* Eloquence is no substitute for preparation. If you have not mastered the facts and legal arguments, your voice will not make a difference.

* "To be effective, a message must meet some subjective standard of reasonableness.... People want to make decisions that make sense."(4) Therefore, "arguments must be psychologically sound and must appeal to the instincts and experiences of jurors."(5)

* Wordsmithing -- choosing the right word -- is as important as the way you use your voice.

* Overly dramatic, hyperbolic, high-pressure techniques should be avoided.

* All speakers should develop their own persuasive style. They should not adopt someone else's style or a theatrical style.

Understanding why people listen will help you soar.(5)

We listen because we are interested in the subject. We listen because what is being discussed is good for us, fun, exciting, useful, fulfilling, aggrandizing, alluring -- or because it solves a problem.

We listen because we are interested in the speaker. If a lawyer is perceived as a leader or information giver and can capture attention by force of personality or knowledge of subject, jurors will listen.

We listen because the speaker's style is compelling. Technique makes people listen. Effective speaking technique -- rhythm, pace, drama, and high energy level -- are not beyond your abilities. You can work on rhythm and pace. You can show a full range of emotions.

What is important is the conscious and effective use of your voice, a voice that is energetic, varied, authoritative, and sincere. For example:

* A rising inflection or pitch on the end of a word or sentence usually implies doubt or raises a question.

* A lowered inflection usually expresses finality.

* A sentence that is delivered with a lower pitch usually indicates seriousness or sadness.

* Deliberately lowering the pitch of your voice or slowing down the rate of delivery creates a somber mood and makes your point.

You must be able to communicate to the jury the strength of your conviction in your client's cause. You must understand that jurors, like all people, are willing to suspend their beliefs to get emotionally involved. You get sad every time you see that deathbed scene in your favorite play even though you know no one dies. Tear-jerking movies tear your heart out. If you do not take advantage of that response in jurors and your opponent does, guess who will win.

Using your voice to ensure that your message is clearly understood is neither acting nor psychological trickery. You have not represented your client ably or well if you drone monotonously. Rather, you must speak so that each juror's heart shudders. Your rate of speech or cadence, the pauses, and the intonation should produce, "chills."

Musical power

How do you communicate the strength of your conviction in your clients cause? How do you show jurors "that your work is driven by your feelings, not by your professional obligation?"(7) You do it by the effective use of your voice. Your voice should have "a musical power, which . . . so choos[es] the `notes' or sounds of words, and set[s] them in such a sequence of harmony, that they [charm] the ear with music at the same time that they [delight] the mind with meaning."(8)

Your voice should have a soaring musical power that depicts "scenes and actions and secret feelings with an exact fidelity."(9) When you pay proper homage to timber, pitch, tone intensity, tone color, tempo, and rhythm, jurors will listen to you with rapt attention. When you can feel phrasing and chord changes, your closing argument will have a compelling flow.

Your closing argument notes or outline should have the markings that sheet music has: eighth notes, quarter notes, dotted notes, half notes, and whole notes; rests; accent marks; and mood notations (crescendo, diminuendo, allegro).

Use your voice to punctuate, to emphasize and italicize, to highlight and underscore, and to accent and print in boldface.

Aside from adding variety of rhythm to your

sentences, vocal emphasis bolsters clarity.

Vocal emphasis is easily accomplished by slightly

greater volume on the specific word or phrase.

"Where were you Saturday night?" Vocal

emphasis can also be accomplished by a change in

pace. For example, zip through "Where were

you when the lights" and then slow down to

speak one word at a time: "... went...outp?"(10)

Human beings are more responsive to rhythm than almost anything else. "Sensitivity to rhythm alteration even works in our sleep! Lighthouse keepers sleep soundly through the racket of their rotating beacons, but they jerk awake if the rhythm alters or stops (stopping is change). The brain is attuned to alteration, not constancy."(11)

Rhythmic closing arguments create and sustain juror attention. A monotonous delivery causes jurors to lose attention. (Remember how you could not get through those 50-minute law school lectures?) Consequently, you must alter your rhythm by using pace, tempo, volume, intensity, and tone quality.

For an example of rhythm's controlling power,

read any sentence aloud. Then read it aloud

again exactly the same way -- but pause before

any word. This long pause is a rhythm break,

and, as such, it emphasizes the next word or

phrase because a pause is a ... change and

thus attracts attention.... If you combine the

short pause with vocal emphasis on the

desired word or phrase, you both clarify the point

of your sentence ... and you increase its

impact.... Variety is the spice of life and the key

to jury attention.(12)

Vocal variety

When people tell stories or jokes or use anecdotes, analogies, rhetorical questions, and metaphors (or, for that matter, any other figurative speech before an audience), they not only become more animated, but also their voices have a refreshingly broad conversational range.

Storytellers pause appropriately, giving listeners an opportunity to digest what has been said. They change pitch levels appropriately, creating heightened emphasis.

Consequently, you should first craft a closing argument that requires you to use gestures, movement, mimicry, figurative speech, and the full dynamism of your own voice. The story of the Three Little Pigs is structured so that those who read it aloud to others must really "huff and puff" in order to blow the straw house down.

It takes even more huffing and puffing with the stick house. And you should be, literally, out of breath when you read to your children how the wolf tried to blow the brick house down.

Second, consciously use your voice as a storyteller would, and create a verbal picture that demands juror involvement. Consider how the first paragraphs of the closing argument for the Toiler Savage Co. (the tugboat company that heroically tried to prevent an oil tanker from grounding) impel the jury to visualize nature's fury and understand how, despite the efforts of the tugboat Superior crew, nothing could be done to save the oil tanker, J.B. John.

Ladies and gentlemen, at this very time, three

years and 33 days ago, the J.B. John was being

tossed and pitched as if it were a cork in a

whirlpool, by waves that got as high as 40 feet.

It lasted all afternoon.

And when the sun went down that evening,

even men who loved the sea lay quietly in their

bunks listening to the howling wind. Little

harbor tugs were at port, being boarded up and

tied securely.

And as nature unfurled its fury

throughout the night, Captain Griffin strained to see

through the sheets of rain as the ocean poured

across the J.B. John. He, too, finally went to

his bunk, but the weather was so bad that even

he had no sleep that night.

And when the winds whirled at more than

50 mph that next morning, the sun rose, but

there was no day. And as the sea pounded, the

inventions of man gave in. Chains broke;

50-gallon oil drums rolled like children's toys.

The rudder broke, and the steering gear failed.

The storm was awful! Not quite a hurricane,

but waves were higher than this building. It

was so bad that Captain Griffin would not let

his crew go on deck that day to drop the

26,000-pound anchor.

And when the crew of the tugboat Superior

approached the J.B. John, it saw not an

ordinary ship but the worlds largest ship -- a ship

so long that it blocked out the horizon. Now,

the Superior is a big tug -- 234 feet long. It's an

ocean-going tug, not a little harbor tug. But

the J.B. John is 1,200 feet -- four football

fields -- long! But as the storm raged, even this big

ship disappeared when the waves separated it

from the tugboat Superior.(13)

Third, ask question -- rhetorical questions and other types of questions -- while you are delivering your closing argument before the jury. Questions create emphasis. More important this forces you to vary your voice pattern. Consider the following part of a closing argument in United States v. Peters, a drug conspiracy case.

Ladies and gentlemen of the jury, you've heard

the evidence! And I ask you:

1. How many times did Fred Peters sell

cocaine for William before?

-- Zero!

Nada! Not one time!

2. Did the government produce one shred

of evidence that Fred Peters and William

Howell had been partners before?

-- No

3. How many times were Laura Hobson

and William Howell partners in cocaine sales?

-- 20 times by her own admission.

And one more time, I submit,

based on the evidence in this case.

This case is about Laura Hobson hustling

and flim-flamming the government so that

Fred Peters, who had no reputation as a drug

dealer and who had never before sold for

William Howell, becomes "the partner"

instead of her as she had been on 20 other

previous occasions.(14)

Fourth, playacting for (example, mimicking witnesses or pretending to call them back to the witness stand) during closing arguments forces you to use your full vocal range.

Indeed, to highlight the theme in the drug conspiracy case -- "One on one, ladies and gentlemen: Fred Peters against Laura Hobson" -- and to show that the entire case turns on the credibility of one particular government witness, you can mimic witnesses in the following way.

The only two candidates the government had

as William Howell,s partner were Laura

Hobson and Fred Peters. After Laura Hobson's

immunity, there was only one candidate -- Fred

Peters, my client.

Now, Laura Hobson, you say that Fred

Peters was involved.... Who can support you?

Well, let's call the witnesses back to the stand.

Frank Lucco, come up here and have a seat.

You have been sworn to tell the truth.

Frank Lucco, can you corroborate Laura

Hobson? "No, sir! I never saw, talked to, or

even heard of the subject prior to arresting

him that night." Remember ladies and

gentlemen, this is a government drug agent with

three years' experience. He even has

confidential informants who run the streets. Yet, Fred

Peters had no reputation as a drug dealer. Let's

call another witness.

Richard Louis, can you corroborate Laura

Hobson?," "No." But Richard Louis, you deal in

drugs. Surely you've heard of the man who,

the government contends, can get one-half

pound of cocaine in a couple of hours? "No."

But Mr. Louis, I'm talking about the man the

government contends can deliver a kilo worth

$48,000 "I'm sorry, ladies and gentlemen of

the jury, I've tried to be cooperative. I even

called my lawyer that night. I turned state's

evidence. But I can't tell you anything about

Fred Peters."

What about Thomas Falk and William

Howell? Can they corroborate Laura Hobson?

Oops! They didn't testify! Was I supposed to say

that? You bet your bottom dollar I was! You

must remember, the burden of proof is on the

government They have the duty to produce

evidence. Remember also that a reasonable

doubt can be based on the evidence or it can be

based on the lack of evidence. And if you think

that's just lawyer's talk, if you think that's just

Becton pulling a fast one on you, listen to the

judge when he gives you instructions on

reasonable doubt.(15)

Music to jurors' ears

Your voice can be music to jurors' ears if you speak with passion. I cannot envision any calling with a greater need for passion -- strong commitment to some goal -- than trying cases for wrongfully injured people. Without passion there can be no compassion.

Your voice needs to be more than a sound. Develop its symphonic range and its full orchestral sounds so you can create a song of universal harmony in your closing argument.

Rufus Choate, speaking on the life of Daniel Webster, said,

I never heard Webster argue to a jury that he

did not leave the impression that he loved

nothing, desired nothing, so much as the good

and glory of America; that he did not seem to

summon around him the whole brotherhood

of states add men, and hold them to his heart.

This gave the freshness and energy to all of his

speeches. This set the tune for the universal

harmony.(16)

Gerry Spence asks us to consider this:

Many lawyers have forgotten how to speak to

ordinary folks. Worse, their minds have been

smashed and serialized, and their brain cells

restacked so that they no longer can explode in

every direction -- with joy and love and rage.

They cannot see in the many colors of feeling.

The passion is gone, replaced with the deadly

droning of the intellect And the sounds we

make are all alike, like machines mumbling 

and grinding away, because what was once

free -- the stuff of storytelling -- has become rigid,

flanges and gears that convey nothing except

the miserable sounds of mechanization.(17)

Give jurors a break. Give your clients a break. Discard that monotonous droning. Say it as you ought.

Notes

(1.) DAVID BALL, THEATER TIPS AND STRATEGIES FOR JURY TRIALS 11 (1994).

(2.) Id.

(3.) ARISTOTLE, ON RHETORIC: A THEORY OF CIVIL DISCOURSE, ch. 7 (1952).

(4.) James A. Barnum, Effective Communication, TRIAL, Dec. 1984, at 42.

(5.) JIM M. PERDUE, WHO WILL SPEAK FOR THE VICTIM? 43 (1989).

(6.) See SONYA HAMLIN, WHAT MAKES JURIES LISTEN 17-20 (1985).

(7.) BALL, supra note 1, at 22-23.

(8.) Sir Ernest Barker, Introduction to THE COMPLETE PLAYS OF WILLIAM SHAKESPEARE at xx (1984).

(9.) Id.

(10.) Ball, supra note 1, at 14.

(11.) Id. at 88.

(12.) Id. at 87-88.

(13.) From an unpublished closing statement by David Malone and Charles Becton.

(14.) From an unpublished closing statement by Charles Becton.

(15.) Id.

(16.) Rufus Choate, Speech on the Birthday of Daniel Webster (Jan. 18, 1859), in ADDRESS AND ORATIONS OF RUFUS CHOATE 524-25 (1878).

(17.) Gerry Spence, How to make a Complex Case Come Alive for a Jury, A.B.A.J., Apr. 1986, at 63.