Podcast - Think Outside the Script

Dan Small: Let's talk about scripts. Some lawyers love them. Some lawyers hate them. I tend to fall a little bit in between. In one of the last episodes, I talked about my style for creating a bullet point witness outline. But scripting is a possibility, and it's worth talking about. 

Just to be clear, by "script," I mean writing out every word of your opening, your questions, the answers and your closing in advance.

The arguments for scripts go something like this:

First, trials are complex affairs. It's not possible to produce a tightly organized, carefully constructed, thoughtfully worded courtroom presentation without substantial advance planning and one or more organizing documents.

Next, the words you use are almost as important as the substance of what you have to say. A script gives you an opportunity to think carefully about the specific wording of your questions and your arguments.

Next, it's hard to think on your feet under the best of circumstances. The more you have thought out and planned out and mapped out in advance, the better off you'll be. Also, it's easier to think about issues such as pacing and delivery once the words and the order of presentation have been thought through.

And finally, judges and jurors complain constantly about lawyers who are inefficient and disorganized. Anything that's made up on the spot is likely to contribute to that problem.

The arguments against scripts include the following:

Well, they're flat and boring. Reading from a script is tedious. Scripts are inflexible. Witnesses lose credibility when their answers are scripted. And you'll be tempted to read from it, even when you know better.

Let's examine those arguments in a critical way.

First, scripts are flat and boring.

Well, sometimes yes, sometimes no. Consider examples from outside the courtroom. "Romeo and Juliet" is just a script, but it can move viewers to tears. Shakespeare wrote it as a script. Great movies, too, are based on scripts. Abraham Lincoln delivered the Gettysburg Address from a script. One of the rumors about it is that he started writing it on the back of an envelope. The great wartime speeches of Winston Churchill were delivered from scripts. The first part of the "I Have a Dream" speech by Martin Luther King was delivered from a script. Scripts then have a pretty decent pedigree. A script is boring only if one, it's written that way, and two, it's delivered that way.

Second, reading from the script is tedious.

Of course it is. Don't do it. A script can't just be written, it has to be delivered. That doesn't mean performing like an actor, but it does mean using your voice, your facial expressions and your movements to make it sound interesting and persuasive. You can script your delivery to some extent, but make sure your delivery sounds natural. Don't memorize your script. You're not an actor, and it won't sound right. Put the script in a three ring binder and leave the binder open where you can see it. Use a font that's large enough so you don't have to bend over and squint. All you have to do is glance at it from time to time. Don't worry about following it verbatim.

Next, scripts are inflexible.

It's certainly true that a trial is dynamic and unpredictable. Witnesses say the darndest things. Opposing lawyers make unexpected arguments. Judges admit or exclude evidence without explanation or not as predicted. No script can take all of those twists and turns into account. That just means a good lawyer will always have to think on their feet. A script can minimize the amount of extemporaneous speech, but it can never and should never eliminate it. If the script interferes with a lawyer's ability to be flexible, the problem is not the script. The problem is the lawyer.

In any event, the inflexibility problem tends to be overstated. In an era of extensive discovery and pretrial disclosure, true surprises are not all that frequent, and some trial events are pretty easy to predict. For example, opening statements almost always go exactly as anticipated, and if you organize it properly, your script can be relatively easy to adjust on the fly.

Next problem or issue? Witnesses lose credibility when their answers are scripted.

This is true. The solution is easy. Don't give your witnesses a script. I know some lawyers like to do that, particularly with difficult or problem witnesses. But don't do it. Certainly you'll need to write down for your own benefit what you expect the witness to say. If a witness forgets something, you want to refresh your memory. And if she gets a detail wrong, you'll want to take care of it. But that's for you, not the witness. You need to prepare your witnesses, but they should not be working from a script. Don't give one to them, even if they ask.

Finally, you'll be tempted to read from it, even when you know better.

This is true. And in some ways it's the toughest problem. Some lawyers just can't resist the temptation to read from the script. Others remember to use the right voice and inflections, but look down at their notebook far too often. If you don't maintain discipline, your presentation will suffer.

Scripting your presentation won't solve all your problems, but in some instances it may give you a leg up. You're more likely to give a clear and concise presentation in the right order and with the right word choices if you've laid it out as much as you can in advance, particularly for newer or younger lawyers. But don't just read the script. Deliver it in a way that's interesting and persuasive. Be disciplined. Keep your focus. And be flexible. Because no matter how much you prepare and plan, things are bound to change.