Introduction to Legal Communication

John Snow 0:00

I'm an introvert too. That advice is true to me because I didn't feel like I was a natural-born speaker at all. I was shy in law school class and I dread being cold called on, but it is such a valuable skill that once you recognize that and work at that, you feel more confident with it and you find more joy in it.

Announcer 0:16

Welcome to the California Appellate Podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Cole and Jeff Lewis.

Tim Kowal 0:43

As always, if you find this podcast useful, please recommend it to a colleague.

Jeff Lewis 0:47

All right, hang on, Tim. We have already violated Rule 1, Rule Three, and Rule 7 of our guest's rules about public speaking. So we really need this next guest.

Tim Kowal 0:57

I guess so. Well, our next guest is Jon Snow, a trial and appellate lawyer who has tried more than 30 cases in state and federal courts and is the author of the book Rules to Speak By, published by Carolina Academic Press, which we'll be speaking about with the author, Jon Snow, today. Rules to Speak By. We'll try to repeat that many times today so we can drill it into our audience's head. Rules to Speak By by John Stowe. And John, as I said, is a trial and appelled attorney. John's currently the director of legal and trial training for the Los Angeles City Attorney's Office, where he trains the city's lawyers in trial advocacy, public speaking, and legal writing, among other things. Before this role, John was a litigation partner at King, Holmes, Paterno, and Soriano LLP, where he handled entertainment and intellectual property disputes for world-famous artists. He was also an associate at Houston Hennigan LLP and Ireland Manela, where he litigated complex business cases. John started his career as a law clerk for the Honorable George King, former Chief Judge of the Central District of California. And John is a JD from the USC Gould School of Law. He serves on the board of directors for Scribes, the American Society for Legal Writers. And this fall he'll be teaching a class at Loyola Law School called Persuasive Speaking and Presenting for Lawyers. John Snow, welcome to the podcast. Thanks, guys. I've been looking forward to this. Well, uh, as Jeff mentioned, we are always uh laying down rules and then promptly violating our own rules. And we've spoken with uh a few other legal writing professionals, including Ryan McCarrell, a couple times on the podcast about his book, Elegant Legal Writing. And we're anxious to know some of your tips and heavy-handed prescriptions for us attorneys about how to go about writing and speaking and uh find out all the ways that Jeff and I are violating them. And more importantly, so that we can we can lord it over other attorneys when we find them falling into the uh the traps that you're going to spell out for us uh today as we preview some of the tips from your book, uh rules

The Importance of Speaking Skills in Law

Tim Kowal 2:57

to speak by. But before we get to that, uh John, can we uh talk a little bit just about uh your bio and how you came to become a uh a know-it-all on all things legal writing and oral persuasion?

John Snow 3:09

Yeah, sure. Um I mean, I've spent 15 years practicing in the courtroom or preparing to get into the courtroom. And in that time, um I realize speaking is a very valuable skill and that's hard to acquire if you go the big law route at law firms and whatnot, and law schools don't prioritize it. And my uh theory for that is that it is expensive to teach. Um, it's a lot easier to have a classroom with 60 people and do the Socratic method on legal stuff. If you want to teach people how to speak well, you need a low uh student-to-teacher ratio and you need people to get on their feet and to practice these things.

Tim Kowal 3:45

You started uh in big law at IREL Manela training there. Did you pick up a lot of tips on legal writing and oral advocacy from the big law model? And do you carry those through with you today?

John Snow 3:57

Yeah, I at every stage of my career I've picked something up. So it really started clerking for a trial court judge, uh being behind the scenes in trial court. If you want to be a trial lawyer, that's invaluable experience. And we had four jury trials during my clerkship term. So I watched all of those. I helped the judge deal with issues that arose in those trials. And then the judge I clerked for prided himself as a former trial lawyer. So it was fun. After the attorneys would finish their arguments, he'd come back in chambers and tell us clerks what he thought about it. So hearing him break those down was really valuable. And in a sense, that's what I do now or try to do with the book is look at some of this as like game tape for lawyers. Let's see what people are doing in courts, what they're doing effectively, and what they're not doing effectively, and let's break those down. So at the firm, I picked up, I worked for great trial lawyers at IREL. I learned a lot about how they built up their cases, and um, they're all phenomenal writers too. So to answer your question, yes.

Tim Kowal 4:55

And you have personally tried 26 jury trials to verdict in UCL False Claims Act Enforcement Cases as a deputy attorney in the case. Which which office was that?

John Snow 5:05

So the numbers higher now. I think I'm around maybe 33 trials. UCL, I haven't tried jury trials there because most most of those are bench trials. But I was a uh misdemeanor prosecutor. I I got a lot of trials doing that. That was a great way to get in the courtroom. And then at my last firms, King Homes Paturnus Oriano, we tried business cases there as well, including a fraud trial up in federal court in Oakland that was a lot of fun.

Tim Kowal 5:30

Now, through all of your experience uh trying bench and jury trials, you've had an opportunity to hone some of the tips that I assume that uh you're holding forth today. What what are some of the uh the tips that you have used successfully and and then maybe more more importantly, the the traps that you have fallen into and the the the tips that you now profess out of the cautionary tales?

John Snow 5:53

Sure. So the they are rules though, Tim. They're not just tips. Yeah, just to plan our do you want you to call out rule breakers when you see them? Um and I know that that might be a question

Rules vs. Tips in Legal Advocacy

John Snow 6:02

you ask, but uh I call them rules because I try to come up with 10 things that you should really do every single time. Um some advocacy advice people call them rules when they really are tips, like only ask leading questions on cross-examination or don't use the passive voice. Those really shouldn't be rules. There are times when you want to break those. But um, the way I wrote the book, I tried to come up with 10 things that pretty much every single time you speak, you should be doing these things. So, what did I learn? I learned the path to acquire them takes time. So you need to practice a lot. And that uh just because you see something in the courtroom commonly doesn't mean it's necessarily good. So you don't always want to imitate the crowd and you want to find good examples and see what the best people are doing and try to imitate that.

Tim Kowal 6:46

Okay, well, let's get into rules to speak by. As you say, they're not tips uh to speak by, they're not guidelines to speak by, they are rules to speak by. Now, why rules? Isn't it true that all rules are made to be broken? And isn't it true that the logic uh that the life of the law has been experience and not just logic, that uh that old uh saying, why rules and where is the line between what is just a rule or what is a hard rule and what is just a guideline that is just a presumption that can be used with discretion?

John Snow 7:17

Right. So there's some room to maneuver within all of my rules. Really, a lot of the rules derive from things about your audience and things about human beings that you need to know and cater to when you're presenting to them. Like we have bad memories, we have limited attention spans, we learn things by tying it to stuff that we already know. We don't pay attention to boring stuff. So that's really fun. I mean, maybe there are some outliers of humans who aren't quite that way, but most of us are that way. So there are different ways to cater to those or fulfill those, but you should be designing your presentations in trial, in uh courtroom arguments to cater to your audience and make sure that you're heard and that there's no nothing lost in translation because of the way you have communicated it.

Tim Kowal 8:04

You pair uh uh cognitive psychology research with advice from great lawyers. And where did this science, the cognitive psychology science, tell you something that the lawyers' instinct have missed? Or maybe the reverse, something that uh lawyers have always known just by instinct and experience that uh the science is only now catching up with.

John Snow 8:23

Well, yeah, I think science has confirmed a lot of stuff that even Aristotle knew thousands of years ago about persuasion. So some of this stuff is intuitive. One area where I I do think it is different is the way people use visual aids. A lot of people just go with what PowerPoint feeds you or whatever application you have feeds you, and their templates and designs aren't usually designed for

Understanding Your Audience

John Snow 8:48

learning purposes or to be the most effective. So one thing people hear is that, oh, well, my audience, there'll be visual learners and auditory learners. I should try to cater to both at the same time. And when I looked into that, what I learned is that people don't really fall into, they might think of themselves as one, but nobody benefits when you're feeding both sets of information at the same time through both those channels. Everybody benefits when you're not duplicating your slides and not having slides that are competing with what you're saying.

Tim Kowal 9:18

Yeah. You know, when you say that, I recall when we had uh Judge Baccarak years ago on the podcast to talk about his book on legal writing, and he talked about some some of that same research as well, and that's always stuck with me. Although I've got to say that's uh that I have treated that as more of a guideline and not of a rule. Uh, because when I'm giving CLE presentations or something, I'll I I have it on the screen and then I will say it. So they're getting it both visually and uh and orally, and uh don't feel like I'm that's making me a less effective presenter, but uh but I don't know, maybe maybe I'm wrong. Maybe I'm just going against the science. What do you say to that?

John Snow 9:56

You're not alone. I think most people when they're in the audience, they're like, this isn't working for me. But then for some reason, when you're on the other side and you're presenting, you think that, oh, well, this makes my life easier. Yeah. I don't have to rehearse as much. I could just it's like karaoke. But uh the truth is if you want the attention to be on you, you've got to be one step ahead of your slides. And your slides have to have one idea that they could process really quickly. Otherwise, you're talking and they're reading and might as well just step aside.

Tim Kowal 10:23

So if I put a if I just put a heading on a slide, but then I'm I'm talking, I'm explaining the point. I don't have the entire script that I'm saying out loud also printed on the slide. I just have the heading or the bullet point. Is that offending the rule, or should I have no text on the slide?

John Snow 10:41

No, the headings are great. So uh the slides are like billboards, and that's backed up by the research. So the best or the one of the leading educational psychologists is at uh out of UC Santa Barbara. His name's Richard Mayer, go gauchos. Um, but he has a whole principle on this. It's called the headlining principle. So maybe you pick that up sometime or you just intuitively did it. But that's the point, is your main point can be on the slide. It's it's it's your reinforcement. It's not trying to steal the show from you.

Tim Kowal 11:09

I like the visual of a of a billboard, thinking of it like a billboard, because you would not want to put a lot of text on a billboard, because then you'll cause a lot of auto accidents.

John Snow 11:17

Yes. And if you do it in the courtroom, maybe you'll cause some, I don't know, jury accidents, something like that.

Jeff Lewis 11:23

Yeah. Hurt next, looking this way and that way. Hey, uh John, one of your rules from your book is don't be boring. And another rule is know your audience. Our podcast audience are pellet lawyers who really are interested in boring things, like one space or two space or serial commas or cleaned up. So would your advice to our show to be more boring or less boring? I see a conflict in the two rules there.

John Snow 11:46

Well, if you put them together and your audience is into it, then you're not boring. So uh like the rules kind of go together, but

Visual Aids and Presentation Techniques

John Snow 11:54

if your audience is people who just love the one two-space debate, I mean, go to town. Well, there is no serious debate anymore, but yeah. Right, it's one space.

Jeff Lewis 12:02

And John, did I hear your doubt show? I am. Fantastic. Me too.

Tim Kowal 12:06

Woo-hoo. Very good. Okay, let me let me go back to because I I I'm still burning from being chastised from on the description of rules versus tips. So let me ask you a couple of things. Tell me if it's a if it's a rule or a tip. Uh peremptory challenge phrasing. This is something that you posted on uh LinkedIn. You have a series of you call them trial tips, but I want to know if this is a tip or a rule.

John Snow 12:27

Yes, LinkedIn's tips, the book is rule. So maybe I'm the source of the confusion there.

Tim Kowal 12:33

This is a a good clear example of a uh of what looks like a hard rule. You say that the correct phrasing, if you're a trial attorney and you'd like to exercise a peremptory challenge on a prospective juror, uh, the correct phrasing is not we thank and excuse juror number one. You say we ask the court to to thank and excuse juror number one. Okay, tip or rule? That's a rule.

John Snow 12:54

You're not gonna get in too much trouble if you break it. And and if you want to say we thank and ask the court to excuse the juror, that's fine too. But the whole point is that the court's the one who excuses the jurors. Um and so judges who are particular, which many of them are, it may ding your credibility a little bit in their eyes, even if they don't say anything about it.

Tim Kowal 13:14

Okay. What about another one you have? I think this is your tip number two on one fact question per cross when you're cross-examining a witness. You present this as essentially an absolute for hostile witnesses. So it's phrased as a tip, but it might be a rule. But tell me that short questions are harder to evade, you point out. Uh so you should invite short answers. These are the most persuasive to juries. And you don't present any scenario where a longer multi-fact, multi-question question would be appropriate. So one fact question or one fact per question in cross-examination. Is that a tip or a rule? That's more in the rule column.

John Snow 13:50

Uh the point is you want them to build over the course of a cross. Um, and you want to usually on cross, you want control. You don't want the uh witness to steal the show. Occasionally, if they're lying through their teeth and looking bad and the jury's reading it, maybe you give them a little bit more rope to hang themselves with. But usually you want to stay in control, and that's done by one fact per question. And then it also helps your audience because remember, we have bad memories and we have limited attention, so they're absorbing things one thing at a time. It's the same reason why telephone numbers are broken into sets of three. If I rambled off 10 numbers, you're not going to remember it. But if it's three, three, four, it seems to work for most people.

Tim Kowal 14:31

Okay. And our listeners should follow Jon Snow's LinkedIn because he's got he's got dozens and dozens of tips that he puts out regularly. Let's go over oral argument. And and uh this will this will branch out into the appellate context a little bit. Uh appellate arguments, it's less about persuading a jury, it's more about answering a panel's concerns. So does uh does your does your approach

Cross-Examination Strategies

Tim Kowal 14:54

to being persuasive at uh oral advocacy differ in the trial courtroom versus the appellate courtroom?

John Snow 15:00

There's certainly a lot of overlap. I mean, judges are human beings the same way jurors are. So in terms of how you should be using your voice and your gestures and your sentence structure when you're speaking to a judge versus a jury, there's a lot of similarity. But the way you get their attention and interest is obviously different. Judges come to an argument with a certain amount of interest and they want help doing their job. So if you're speaking to that, they will probably be paying attention. If you're making a spectacle of yourself or going off on tangents, they won't. Some juries want to be entertained a little bit, but even too much of that in the courtroom isn't effective. But yeah, there's a lot of overlap, but the really it is knowing your audience. Judges write stuff in the daily journal about what they like and what they don't like. We don't get that from jurors publishing daily journal articles. So do your research, read what they want. A lot of them have spoken about this. So if you're speaking to that, uh, you're probably gonna have more success.

Tim Kowal 15:56

After you give an oral argument in the Court of Appeal, do you ever go back and watch your oral arguments? They've uh I don't know for how long they've been recording a video, audio, and video of oral arguments, but uh last several years anyway, and you can go back and watch your own oral arguments and uh sometimes when I'm brave enough, I'll go back and watch mine. I wonder if that's part of your practice.

John Snow 16:15

I've written more appellate briefs and done more appellate style arguments in the trial courts, but uh anytime I speak, if there's a recording or video, as cringy as it might feel, I watch it. I I think it's the same way. And I'll record myself before a presentation, which is hard to do, and I'll watch it there. I equate it to if you're writing a brief, printing out the brief and reading it and editing it. I think most of us do that, and we would never skip that when we're submitting written work product. Almost nobody does it when they're preparing to give oral work product. Um just because of emotionally, it's sometimes hard to watch yourself. But if you can get over that, the gains that you get from doing it are are worth it.

Tim Kowal 16:56

I've watched myself after oral argument and just thought to myself, what am I doing with my hands? I gotta either put the hands down or find some new gestures because I'm doing the same thing over anyway. It's uh but yeah, you get a lot out of watching yourself. You just you can't absorb everything that you're doing. You're you're trying to anticipate, you're trying to deliver your script, your frame of the case, and anticipate the others' arguments, and you're writing down the other side's uh rebuttal questions, and so you can't possibly uh soak in everything that you're doing involuntarily with your with your hands. But you you've written that no one is born with the ability to captivate an audience, and those who look natural uh have put in years of practice that you can't see. And I wonder if you can unpack that a little bit. Uh, because I I I think we've all known people who seem like they are just naturals. Or some people are who have a more natural ability or they have a at least a natural desire and ease in being in front of other people. Those of us, many of us who are appelled attorneys, probably skew to the introvert side of the scale. And so sometimes oral argument, even though they have the intellectual capacity for it, it's not as fun as it is for many trial attorneys who probably skew more to the extrovert side of the scale to get in and start

Oral Advocacy in Appellate Courts

Tim Kowal 18:07

grandstanding and gesticulating in front of the jury and making friends and making themselves likable. So it's a they are different skill sets. And so I wonder what what kind of things that we can do to practice and become excellent at captivating an audience, even if we don't feel that we're born with the psychological, you know, emotional uh intelligence to be an effective persuasive advocate.

John Snow 18:28

Right. So I that comes from anytime a successful speaker has kind of pulled back the curtain and talked about what they do, they always reveal that they usually just practice more than other people. I think famous TED Talks, when they're asked how many times they rehearse that, sometimes near a hundred times, right? And you watch this thing, you see, oh, this is a really natural speaker, but then once you hear about their process, you learn they put in tons of work. Even Steve Jobs, when he would feel like he was done with his keynote speeches, he would keep practicing. So there certainly is that part to it, and and people skip it because it's uncomfortable, or they just practice in the wrong way. They'll kind of hold a piece of paper and read it quietly to themselves in their head, which is just totally not the same as standing up, getting out of the chair, and delivering it at full volume with your real voice. So I don't think people need to rehearse a hundred times for an oral argument, but as many times as you can, you're gonna get incremental gains each time. So uh and then also, this is I'm an introvert too. Um, I I that advice is true to me because I didn't feel like I was a natural-born speaker at all. I uh was shy in law school class and I dread being cold called on, but it is such a valuable skill that once you recognize that and work at that, you feel more confident with it and you find more joy in it. Um so that's that's something I want people to take away from this is that it's sort of like a form of exposure therapy, right? You don't like if you don't like the sound of your voice when you listen to it, we uh there's this thing in psychology called the mere exposure effect, where if you're exposed to something a lot, it normally breeds liking. So you're gonna like it more. And we don't like our voice because we're not used to hearing it out of a speaker or headphones. We're used to hearing it with the resonance that's built in. So it sounds different and weird to us. But once you listen to yourself more, most people get more comfortable with it.

Tim Kowal 20:18

Jeff still hates my voice, but uh he's the exception. He's Oh, it's fantastic. But I will say the first 50 podcasts we did during the pandemic, those were rough. Those were rough. That's right. Well, you mentioned uh John about uh TED Talks, and I'd heard that too, that that people who give TED Talks train practice meticulously. But then it occurred to me that I I don't know what what the method is. I can imagine that it there's probably a lot of memorization and then rehearsing and finding the right beat and the right pause, the inflection of the voice and everything. I wonder how much of that kind that type of preparation carries over into trial preparation or or appellate oral advocacy preparation. Because as you say, you can memorize your whole outline, but then as as I did yesterday, I I got one

The Role of Practice in Effective Speaking

Tim Kowal 21:06

sentence in to my outline and I got derailed and I was answering questions the rest of the time. So I could just put the throw the rest of my outline and script into the waste paper basket.

John Snow 21:15

Right. Yeah, I think you want to rehearse under some pressure, and the studies show even small amounts of pressure can help you on game day and help uh quell some of those nerves. One of my favorite parts about the book was I wanted to elevate and highlight other people too. So I reached out to others to contribute tips, and I have these in these little boxes sprinkled throughout called quick quick tips from other advocates. And one I got was from one of your other podcast guests, a pellet lawyer, Stefan Love, and he talked about how he would prepare for oral argument and what he does is the index card method where he anticipates questions and he writes them on index cards and he shuffles them and pulls them out and practices spontaneously responding to those. And so I think this is one area where. Where AI can be effective if you have a good tool. I heard Neil Catial used AI to help prepare for the tariffs case argument in the Supreme Court. And according to him, it was pretty effective in predicting at least the types of questions that would ask.

Jeff Lewis 22:15

Yeah. His AI methodology. If you haven't listened to that TED talk, it's fantastic.

John Snow 22:28

Yeah, he got some backlash, I think, but uh at least at least he showed it all, and I I think people benefited from hearing hearing how he pulled it off. Trevor Burrus, Jr.

Tim Kowal 22:37

I've been doing something similar. I've got a Claude skill developed. And so I load up my appellate briefs and the record and have a skill train to do a murder board and just start asking me questions one by one. And then after I give my answers, it will give me a score, tell me what I did well and what I need to improve on, and then move on to the next question. It's is very effective at helping train, hone, and refine my answers and also to give me some confidence that okay, I think I'm ready for for these kinds of questions.

John Snow 23:03

So Yeah, let me know where we could buy Co-OL GPT. That's right.

Tim Kowal 23:06

I should make it available. Is there such a thing as a lawyer being overprepared or too rehearsed for an oral argument or or for a trial?

John Snow 23:15

I don't think so if you're rehearsing the right way. I think where people get in trouble is if you're trying to memorize a script word for word, that takes you out of the moment. But if you're practicing like you the stuff you talked about earlier, where to give your pauses the right tone and how to hit the points you want, but also leave room for some spontaneity in the moment. I think as much as you can squeeze in, you're going to benefit from.

Tim Kowal 23:40

I mean, as you're as you're giving the answer, I recall the Mike Tyson doctor and that everyone's got a plan until they get punched in the mouth. Uh you can get up there with the the greatest script and the greatest preparation. So you need to be prepared not to just to give your framing of the case, but also to anticipate where things might go off the rails and how to bring the listener back on. So in that sense, it's uh there's a lot of I I think in in preparing for an argument and trying to anticipate how could

Utilizing Technology for Preparation

Tim Kowal 24:06

someone not see things my way? And you get so invested in your own case, it's probably uh do you have any methods for uh for anticipating that and how how to win over someone who just just doesn't uh doesn't see things your way?

John Snow 24:19

Right. So I I think questions are great. I mean, that's really the whole purpose of oral argument, right? Uh but if you're getting hostile questions, it's important not to let those derail you or lose your confidence. You don't want to start injecting powerless speech, is what they call it once or I think, or start hedging. You still want to be confident when you're and smiling when you're talking to a hostile judge. But I think the real trick is you come in wanting to give them certain information, but you need to answer the question before you transit your talking points. Because if they've derailed you and you're like you want to squeeze in your extra two or three lines before getting to their question, they're not really gonna hear it. They're gonna get frustrated. So try to figure out where the question's from coming from. If it's a minor point that isn't critical or dispositive,

The Art of Preparation in Oral Arguments

John Snow 25:06

consider conceding it and then pivoting. You don't always have to find a path of least resistance. Remember, the more helpful you are to the judges in understanding what their job is, the more successful you'll be. And really what they want to do is just how can I solve this case pretty quickly and feel like I made the right decision. So if maybe you've overstated something in the brief or they're not buying your support for it, but it's not dispositive, avoid the fight there and try to concede points to then make your job easier for you through another path rather than ruining your credibility arguing with the judge over something inconsequential.

Tim Kowal 25:40

If we can back up for a minute and just to talk about the origin of the book, Rules to Speak by, uh, when did you first get the idea to write this book? Was it had you assembled a list of rules and uh realized that not enough people understand these rules? These uh attorneys really need to understand that these are these are not tips, these are not guidelines, these are not best practices, these are rules. What what was the what was the origination?

John Snow 26:05

So I I started off as a fan of the genre. I'm a nerd who has enjoys reading advocacy and style guides for fun. So once I'd read enough of them, I felt the competitive urge to say, hey, maybe I have something to add here. And I I sort of knew what was missing in the space. A lot of uh books are still talking about the O.J. Simpson trial, which is a great trial. But I thought, hey, maybe there are some more recent trials that we could learn things from, like the Alec Baldwin Rust trial or the Johnny Depp Amber Heard trial, really anything that's in the news. And so I tried to bring more attention to those. And it was a little bit like as a as a child, I loved basketball and I'd watch a great basketball game. I'd go outside and start playing and feel like, oh, maybe I could be in the NBA. That didn't prove true, but at least here with something I enjoyed doing, I I had some success in uh entering the ring and and writing my own thing, which was a lot of fun.

Tim Kowal 26:56

Now are you one of those lawyers who loves following those uh those trials of the century, the ones that are that are uh broadcast on TV or reading the the the transcripts the day of? Because I gotta admit, I maybe this I don't know if this is part of the appellate attorney side of me that I just say uh call me when the thing is over and I'll pick it all, pick it over in one sitting. But do you uh do you like taking the drama in as it unfolds?

John Snow 27:19

I'll follow along, especially if the attorneys are good. Um unfortunately, there's no cameras in federal court where a lot of great trial lawyers are. So it it's rare to find truly, truly great trial lawyers or the best of the best having their trials recorded and televised. But if they are, I mean, for me, that's like the Super Bowl. So I'm gonna be paying attention.

Tim Kowal 27:37

Yeah. I mean, the thing, the uh the value that appellate attorneys like Jeff and me try to bring to a trial is just preserving uh the case for another day. If things don't go as planned at trial, then maybe we can take another uh swing at it on appeal. But when it comes to persuading the finder of fact, you've got one shot and one shot only, and that's where great trial attorneys come in. So what are what are some of the the big tips or even better rules that you have picked up from some of the best trial attorneys in delivering their their uh opening their opening statements or their or their cross-examination or direct examination of your your own client? Sometimes your own client, you think you've you've rehearsed and rehearsed and rehearsed and then they and then they go off script. So what are s some of the rules that you picked up from watching some of the best attorneys?

John Snow 28:25

So framing in opening is huge. How you tell the

The Origin of 'Rules to Speak By'

John Snow 28:29

story, every story, their different angles, so finding the best angle that your jurors can relate to. Um one example I give in the book is from one of my former bosses, John Houston, who tried the Enron case. But he was trying a wine fraud case on behalf of a very wealthy client, and he realized jurors would probably have uh trouble relating to somebody who spent the kind of money that this person did online. So he didn't talk about how rich his client was or how much this stuff was. He just talked about them as collector items similar to baseball cards or coins. So the jury felt like, hey, if I were ripped off in this situation, I'd be upset about it too. And this doesn't feel right. So just kind of finding the way to to frame a case to resonate with with your juries is huge because uh it's hard people come into all these with their pre-existing views and beliefs. And if what you're saying s fits in nicely with that view, though the cognitive ease of them agreeing with it is very easy. If it conflicts, you've made your job a lot, lot harder for you.

Tim Kowal 29:29

Are motions in lemonade and relevance objections still important tools to use to limit that framing, keep your your client, your witness in a good light, and to keep out aspersions that should should not be relevant to the issues of the case, or does a good attorney just figure I can I can rehabilitate no matter what comes in?

John Snow 29:48

Aaron Powell Motions and Lemine are huge for me because they help you avoid objecting in front of the jury. Trial's a social game, so anytime you object, it costs you at least a little bit with the jury. You're disrupting things, they don't like people doing that. At worst, they think, oh, maybe this person's hiding something, they start speculating. But if you are able to handle those issues outside their presence with the motion and lemonade or before they are called in, when there's maybe a moment with when just counsel are there and the judge is there and you can go on the record to do it then, that's the best place to do it. Uh I think most so Vincent Bugliosi, uh famous Manson, Charles Manson prosecutor, said he tried to object as little as possible at trial. And I think that's true. We have to factor in different costs than just the appellate record. We're trying to win below. That said, there are obviously times I'm sure you'll tell us the rules on when we absolutely need to make ourselves clear to preserve an issue.

Tim Kowal 30:45

Do you think

Key Strategies for Effective Trial Advocacy

Tim Kowal 30:46

there's any uh this is something that that sometimes I will tell my trial attorney clients that uh look, if you're going into trial, you might want to have me there as an appellate attorney. So you have someone to blame who's going to slow down the trial or make the objections that the judge doesn't want to hear, or that or maybe that the that the jury doesn't want to hear. Is there any any uh any merit to that strategy?

John Snow 31:05

Yes. At my last firm, we did have uh embedded appellate counsel in one case as you're trying it, and it is hugely helpful. It's also a bench trial where there's briefing at the end, so it's helpful to have them there for that too.

Tim Kowal 31:16

Aaron Powell Tell us a little bit about your uh your teaching and coaching. You uh do a lot of mentoring and teaching other trial attorneys, are they mostly younger junior attorneys? Are you also coaching and teaching seasoned attorneys on some of these rules to speak by?

John Snow 31:30

The most intensive training that we do in the office is for younger attorneys. Um, we're one of the best offices, I think, to get training and experience. When you come join our criminal section, we do a three-week mock trial boot camp, which to me is unheard of in a lot of places to actually have that investment in people. So those are mostly younger people, but we have opportunities for civil litigators who haven't tried cases to come to us and learn how to do that too. We just uh condense it a bit to be able to fit it into their busy schedule and and workload.

Tim Kowal 32:02

And what are what are some of the main topic headings for some of these uh seminars and intensive trainings of the younger attorneys? How do you uh take these junior attorneys and turn them into excellent attorneys who will become seasoned persuasive trial litigators?

John Snow 32:15

So we put them on their feet. Everybody has different strengths and weaknesses, and it's sort of like a physician. You actually need to examine the person to be able to diagnose and give the right type of tailored feedback. But there is some instruction too. Like I said earlier, I'm a big fan of watching these trials. So when I see some good examples, I try to clip them. I think it's helpful to show people what it looks like. And I think it's important for people to be able to recognize what's good when they see it. Not everybody does right off the bat. And we teach them even things like how to use your hands. I think that one. There are rules on that one. So uh if you get there, I think it's chapter eight. Um I tell all my secrets.

Tim Kowal 32:53

Hand gestures is one aspect of uh body language more generally. How important is that to overall persuasion? I mean, we talk about the the intellectual aspect of trying cases and and the preparation that goes into that, but uh they say what is it, some some outsized percentage of communication is is body language and how's how people see you presenting? Do they even believe their own argument? How much does that factor into rules to speak by?

John Snow 33:20

Right. So in the book, I I debunked this idea that you could give a number to it, and there's this study from the 60s, which is the origin of this large number. Um, but what happened there is they're testing people's reactions to speakers who are just saying like one word about their feelings. So, for example, if I ask my wife, how are you doing, and she says, I'm fine, and she's frowning, in that scenario, the body language is probably telling me most of what's going on. But the truth is at trial, we're saying a lot more than just one word or communicating complex things. So it's really part of it, right? There, there's a thing called the halo effect where if you appear confident put together, that's gonna boost your credibility in the eyes of the jury. So you don't want your body language to detract from that. You want it to help contribute to a confident persona when you're talking to these people because they're gonna think, well, they seem pretty confident about this, so maybe they're right.

Tim Kowal 34:13

So confidence while speaking and presenting, uh, what about the rest of the uh the rest of the time? When you're sitting there, your general demeanor, are your hands folded, are you feverishly scratching out notes on a notepad while the other witness is trying is tearing your taste to shreds? Uh are you coaching, whispering to your witness, does your method uh take those things into consideration?

John Snow 34:34

Yeah, I mean the whole thing's a performance, right? And and I think in there are some situations where you need to put on your poker face, right? If they're really tearing into one of my witnesses, maybe I'm yawning or trying to look a little sleepy and hoping hoping the jury picks up on that rather than paying attention to uh what's coming from the witness stand.

Tim Kowal 34:50

Calculated yawns and stretches, right. Just to s to signal this doesn't bother us at all.

John Snow 34:55

Yeah, uh if you're leaving a sidebar, hold your head high, smile, even if you just got it handed to you by the judge. Um jurors do pick up on a lot on that. You don't want to you don't want to fake it, but I think if you have confidence in your case at the end of the day and you take things seriously, but not too too seriously, and you let some of your natural personality come through, jurors and pick up on that, and and other people in the courtroom

Training the Next Generation of Trial Attorneys

John Snow 35:17

do too.

Tim Kowal 35:17

Aaron Powell What are some ways that you can let your natural personality uh or convey your natural personality in front of a jury? And and I wanted to segue also into civility. It's that uh the way that you communicate and interact with opposing counsel, is that picked up on by jurors?

John Snow 35:32

Yes, absolutely. I I think your goal is not winning a fight, it's it's persuading somebody at the end of the day. And if you're really combative, that's not persuasive to a lot of people. Um so and then uh how do you let yourself come through? We need to unlearn some things from law school or things that we think are good. You could use more of your normal vocabulary that you would use day-to-day than you think. We don't need to use these complex words to convey to people that we're lawyers. The studies show that simple is smart. People enjoy plain, direct speech that doesn't try to obscure your points. So you could do that. Uh if you make a mistake, you can make fun of yourself a little bit. I talked about this. There's the the Prattfall effect, right? Where I think it was that they did studies of lecturers, and when somebody who um spilled coffee on themselves, even though they otherwise looked like a very sophisticated person who the audience thought was maybe superior to them, that actually made them more likable, right? So if things go wrong at trial, lean into it and uh try to have a little bit of enjoyment with what you're doing.

Tim Kowal 36:34

Well, now that you've said that and framed it as as a Pratt fall, now there are going to be attorneys who are gonna be thinking about how can I spill my coffee on myself? Say, oh it sucks.

John Snow 36:45

Stage your bloopers, right? Yeah. No, for me, they've always just happened naturally, unfortunately.

Tim Kowal 36:49

Yeah. And I guess that uh that's only going to have any value in front of the fact finder. So there's no point, Jeff, in us saying that let the record reflect that I have just clumsily spilled my coffee on my lap. Although people might chuckle if you say that.

John Snow 37:01

But uh yeah, I don't I don't know how much it helps you on appeal.

Tim Kowal 37:04

What about uh maintaining your uh your likability when you need to roll up your sleeves and grill the opposing side on cross-examination? And you really have to get a little bit uh mean, you have to get a little bit um you have to Well, uh let me let me read from some of the transcript that you posted on on a recent tip, trial tip 63, and you're you're reporting on the uh the Sam Altman and Elon Musk uh trial. And Musk's attorney, Molo, um, had this initial exchange with Sam Altman. And uh he started by asking, are you completely trustworthy? And Altman says, I believe so, Molo. But you don't know whether you're completely trustworthy? I'll just amend my answer to say yes. Should the jury believe your testimony? I think that's up to them, but I believe so. You believe so, or they should? Sir, I'm not gonna tell the jury what to think. Molo, do you always tell the truth? Altman, I believe I'm a truthful person. Molo, that wasn't my question. Do you always tell the truth? Altman, I'm sure there's some time in my life when I have not. And you explain how kind of Molo's marching down like that with those very absolute qualifiers, always, completely. And it forces him into a box and to hedge his answers and to make him look a little bit squirrely in front of the jury. Tell me where I could certainly see the pros of that approach, but is there a risk that the attorney can come off looking mean in front of a sympathetic witness?

John Snow 38:31

Yeah, absolutely. You you sort of need to read the jury. If if they're getting frustrated with a witness, their faces will tell you when they really want you to start to go after this person.

The Role of Body Language in Persuasion

John Snow 38:41

So I I don't think I've ever started off across a dissemination that combative. Usually you'll try to get your helpful admissions out of the witness first, which are easier to do if you're being kind and polite to them. That said, uh, Molo's a top chambers ranked trial lawyer, so I'm sure he had some strategy going into that. And I know that in that trial, before Altman testified, there were a bunch of witnesses who had talked about how they believed he was dishonest or sometimes deceptive. So maybe they set the stage for that showdown. Um that said, I think Altman won the trial on a statute of limitations issue. So you can never really, at the end of the day, know whether that cross, in this case, I guess, contributed to the loss or if you win, or if that's the reason why you won. It's nice to talk to jurors about it. And I've heard and certainly heard of people talking to jurors after trials and they're saying, Why were you so mean to that witness? We didn't really like that. So Yeah. Yeah. Sometimes uh you you uh catch more uh bees with honey, right, than vinegar.

Tim Kowal 39:38

Yeah. Has uh has your experience been informed a lot by speaking with jurors after trials?

John Snow 39:44

Um when I can and the and it's appropriate to do so. Um I have talked to them and and I have found it helpful. Sometimes there are risks to doing that or just logistically the court holds you after the verdict and is dealing with some other issues and they're all gone by the time you um get out. But I think uh people have found it. I'll take feedback anywhere I could get it where I come down on this. I think it's a lot easier to get when you're younger and people are willing to give it to you. As you get more seasoned, uh people might look up to you and might be afraid to give it to you, and and those people have to spend a lot more money on expensive focus groups and and jury panels to get the feedback. So if you're early in your career and somebody's willing to give you advice, I I just take it.

Tim Kowal 40:24

Speaking of cross-examination, you had another tip on your LinkedIn feed uh advising to propose short questions on cross, and you call this the George Costanza rule, saying that with a hostile witness uh we should break our points down into as many short, one fact questions as possible. We discussed this earlier, but this was a very colorful example that you painted where uh the scene where George Costanza double dipped a chip. And when confronted, he said, Double dip, what are you talking about? And his accuser broke it down into single fact statements. You dipped the chip, you took a bite, and you dipped again. So you get each of the three critical facts uh in staccato single fact sentences. Uh so the uh the conclusion is inescapable that George double dipped the chip. So so those kinds of uh our audience could find more of those excellent kinds of trial tips on Jon Snow's LinkedIn page and in the book Rules to Speak by. Uh I had one other one other question about juries. When after the jury gets impaneled, do you ever uh advise changing trial strategy from the persuasive standpoint, not necessarily the total case strategy, but just uh kind of shading around the edges of how uh how much to beat up on a certain witness or how much to focus on a certain element of the case, uh depending on which jurors got impaneled. Welcome to the California Appellate Law Podcast. I'm Tim Kowal. This week we talk with John Snow, trial lawyer and director of legal and trial training at the Los Angeles City Attorney's Office and the author of the new book Rules to Speak by. When I asked John about his tips, he slapped my hand. He said, They're rules, not tips. We get into John's rules, not tips, for persuasive speaking, like why practice beats natural talent, how to handle hostile questions and oral argument without hedging, and how to be likable to the judge and jury. We also talk about some trial craft, like the one fact per question rule on cross, the George Costanza double dip example and how to use slides the right way. Think billboards, not scripts. And whether you're preparing to argue in court or present to clients or give CLEs, you'll take something away from this one. Here's our conversation with Jon Snow.

John Snow 42:33

Yes, absolutely. I mean, if you have valuable information that you think changes how somebody might receive an argument, you're gonna want to incorporate that into your presentation strategy and your approach, right? So if there are

Navigating Cross-Examination with Tact

John Snow 42:48

jurors who swing really one way on a political issue, um, you want to try to frame it to at least be consistent with their worldview on that and vice versa.

Tim Kowal 42:56

Aaron Powell Just uh on a on a point of practice, not really related to your book, uh, but you have worked in private practice and then you worked for the LA City Attorney's Office. And can you tell us a little bit about the difference in practice and and approaches? Is is handling a trial in a regular commercial case uh different from the way you uh you at the city attorney's office would handle trials?

John Snow 43:16

Some of it just differs based on the amount of preparation time you have, right? In a in a civil case, um there's two-way discovery and depositions, and you go in knowing pretty much most of what a witness is gonna say, and you could build your crosses around that. If you're trying a criminal case as a prosecutor, there are a lot more surprises at trial, um, and there aren't depositions. So the the prep is a little bit different. That said, it's if you're in California State Court, it's the same exact evidence code, the same exact uh local rules, very similar judges wearing the robes. So there certainly are are similarities and you're you're talking to people from the same community. So but yeah, I think in some ways um the prep for civil trials is is more exhausting. Um Because I mean you're working really long hours preparing motions, court filings, things in advance. But then when you get to trial, it's a lot easier to execute a plan that's pretty extensively planned out versus criminal, you need to be a little bit more nimble.

Tim Kowal 44:14

Mm-hmm. Yeah. Speaking of those economic constraints, if you had to compress rules to speak by into some of the most high-leverage rules that you could give to attorneys who are not trying the trial of the century cases and have, you know, unlimited resources to be able to prepare for their case and they have to just get the get the file worked up uh over the weekend for a Monday trial that they just came on to the week before. Uh, what are some of the most high-leverage uh rules and or tips that you can provide to those attorneys as they are getting to walk into this uh this trial that they just signed on to?

John Snow 44:47

Remove a lot of the clutter, right? Find your easiest path to victory, right, with the least resistance and just really lean into that. I think this happens in civil too. You wind up people who are litigators but not really trial lawyers will litigate a lot of issues during the course of a case and through discovery. And then when you get to trial, you find that 80, 90% of that kind of falls away. But if you have good instincts and you can intuit, hey, what's this 10% that really matters and focus on that and then package it. Think about, I mean, the rule I would want you to think about is put your audience at the center of it. So really an audience, audience-centered presentation. If you package it into that, I think you'll be successful. Everything you're doing, if the if the purpose is that it serves the audience and not just you or making yourself look good, I I think it'll be helpful.

Tim Kowal 45:35

Is there any other are there any any other rules, tips, or uh or questions that we didn't get to that that you wanted to cover, John? I guess I would end with the last one.

John Snow 45:44

Uh a lot of people say, I just I'm not gonna rehearse to practice because I want to be natural. Um I tell people um being natural doesn't mean don't practice. I think if uh you want to get comfortable and have confidence doing this, treating it as a valuable skill set and in practicing is really important. And um I think that that's it helps with a lot of nerves too. I I put nerves at the end. Almost every public speaking book I picked up started with how do I overcome my nerves? And I didn't think that was a helpful thing for people to focus on right at the beginning. I think if you practice and prepare, some of that does take care of itself. And so um I advise people to start thinking about just giving

Adapting Strategies Based on Jury Dynamics

John Snow 46:25

people something really good that you would want to hear, and then worry about your own nerves and yourself a little later in the process.

Tim Kowal 46:32

Yeah, I do find that rehearsing scripts, even if you know you're gonna get derailed, you're not gonna be able to give the script from beginning to end as you've written it, but rehearsing snippets of it can help you be more nimble when that issue does come up. And it does help to give you that confidence and alleviate some of the nerves. So I I totally agree with you there.

Jeff Lewis 46:50

Let me let me sneak in a word if I could here, Tim. John, congratulations on a great book. Uh I want to recommend it to all our listeners. Diverse topics such as designing a PowerPoint page, modulating your voice, and other things you don't typically see in a legal writing book. It's a great read, so I highly recommend it. Congrats. It's it's good. Thanks, Jeff.

Tim Kowal 47:09

Thanks again to Jon Snow, and please pick up the book Rules to Speak By from Cal Carolina Academic Press. Uh, we'll have the link in our show notes. And uh that's gonna wrap up this episode, Jeff. If you have suggestions for future episodes, please email us at info at calpodcast.com in our upcoming episodes, looking for tips on how to lay the groundwork for an appeal when preparing for trial. See you next time. Thanks again, John.

Announcer 47:33

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