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Speak Extemporaneously: 7 Tips for Losing the Notes Without Going Off-the-Cuff

By the time they get to opening statements or closing arguments in trial, most lawyers have been living with the case facts and story so long that talking about it really isn’t the problem. What is the problem, though, is sticking to a plan, hitting the time limit, and not leaving anything out that's critical. The need to do all of that sometimes leads attorneys into the temptation to walk up to the lectern with a script or a stack of notes. I've seen some who can effectively get away with that kind of crutch, but most cannot. And for every trial lawyer, it is always better to speak while looking into the eyes of the jury or judge, and not while while scanning a sheet of paper. Not only does eye contact allow for better connection and adaptation, but it also sends the message that "I am prepared, poised, and confident about this case." 

Some attorneys already practice this at every opportunity at the lectern. For others, though, it can be hard to cut the cord to those notes. In trials, the details can be tough task masters, leading some attorneys to the point of thinking, "Look, I can't just speak from the top of my head. I either need some notes up here, or I need to essentially memorize my presentation, and there's no time for that." The good news, however, is that there is a middle ground between an "off-the-cuff" performance on the one hand and a scripted performance on the other. That middle ground is extemporaneous style, or speaking with a clear and detailed plan, but without a word-for-word commitment to exactly what you'll be saying. You know your outline and you know your key language, but you're forming your sentences "live" with your focus on your audience. This post offers seven quick tips for managing that effectively in trial. 

 1. Have an Outline and Commit That to Memory

For most attorneys in most settings, it isn't realistic to memorize the entire text of an opening or closing. And even if you had the time, a memorized presentation might sound recited or stale. But what you can memorize is your outline...assuming you have one, and you definitely should. Knowing, in as detailed a fashion as possible, your points in the right order will give you confidence to speak in a fresh and natural fashion while still knowing that you are on track and proceeding according to plan. 

2. Memorize Key Phrases, But Not Paragraphs

There are moments and sections of your presentation that will be worth fully committing to memory. Your introduction is one obvious example. Because your audience will never be paying as much attention as they are in the first few minutes, you'll want to make those words count as much as possible. There will also be other moments where you will be coming to a critical conclusion and you will want your audience's interest to peak. You can facilitate that by carefully choosing your words and committing those relatively few words to memory can help you get it exactly right.

3. Use, But Don't Abuse, Your Graphics

We've written before on our research showing that using graphics throughout a presentation makes for improved credibility and comprehension. The graphics themselves can also convey your structure, for example, using title slides to introduce each "chapter" of your opening statement or closing argument. As much as that structural use of graphics can help to give both speaker and audience a sense of "place" within the presentation, that should never become an excuse for putting your speaker's notes on the screen. Simple slides consisting of an image and a single sentence can aid comprehension but bullets or extended text can take it away. 

 4. Practice Out Loud

You do need to practice on your feet. In the crush of trial preparation I understand that it can be difficult to find the time, but the stakes are simply too high for your first run to be delivered in the courtroom. So go ahead and put a time on the calendar, pull together a panel drawn from the client and legal teams, and ideally some uninformed observers as well. Deliver that opening or closing at least once or twice. That practice helps not only to improve the delivery, but also in making any final modifications to your themes and other content.  

 5. But Don't Practice Until You're Ready to Practice

I've sat in on practice runs with attorneys where I will give some feedback on something - eye contact for example - and the attorney responds, "Well, of course I'm not going to do it that way in trial." I want to respond, "Then why are we practicing it that way?" If you are still needing to read from your notes, then you are not ready to practice out loud. Going ahead with that practice before you're ready  just teaches bad habits. It is better to spend that time familiarizing yourself with the content. Then, once the outline and general content are firmly implanted in your brain, you're ready to practice on your feet.

6. Record Yourself

Here is the best piece of advice I have for getting the content to stick in your head: Get a small audio recorder, or use your phone, and make a recording of yourself giving the presentation. It doesn't have to be delivered in "practice mode." Instead, you can simply make the recording while you're speaking from your notes. Then, listen to the recording as often as you can -- while driving to the office or while taking a break from other work, for example. Listening right before you go to sleep is particularly helpful. If you have the ability to listen at a faster playback speed, I've found that helps not only in saving time, but also in training your brain to retrieve the content faster. 

7. Keep a "Rescue" Set of Notes

If you've followed all of this advice and still find yourself worried that you'll forget a key point, miss a critical phrase, or lose your way in the outline, you're not meeting your goals. After all, even if you're making great eye contact, you're not projecting confidence while wearing an expression of concern. If that worry over content poses a problem, I've found that it is helpful to keep a short set of notes -- an outline, not a script -- in my pocket. If I really need to, it won't look that bad to retrieve it during the presentation. But most likely I won't need to because just knowing that it's there if needed is enough of a security blanket. 

At a bottom-line level, your physical delivery isn't the jury's focus -- not consciously at least. They want to make a decision in favor of the facts and the evidence, not a decision in favor of the most polished attorney. But delivery creates an inevitable filter for content, and confidence is seen as a relevant sign of how strong your case is. Powerful delivery without notes conveys that confidence. 

Copyright Holland & Hart LLP 1995-2022.National Law Review, Volume V, Number 187

About this Author

Ken Broda-Bahm, Ph.D., Holland Hart, Rhetoric lawyer, Legal Persuasion Attorney
Senior Litigation Consultant

Dr. Ken Broda-Bahm has provided research and strategic advice on several hundred cases across the country for the past 16 years, applying a doctorate in communication emphasizing the areas of legal persuasion and rhetoric. As a tenured Associate Professor of Communication Studies, Dr. Broda-Bahm has taught courses including legal communication, argumentation, persuasion, and research methods. He has trained and consulted in 19 countries around the world and is Past President of the American Society of Trial Consultants.