Rules to Speak By: John Snow on the Rules—Not Mere Tips—of Oral Advocacy

Tim Kowal And now your host, Tim Kowal and Jeff Lewis.

Jeffrey Lewis Welcome everyone, I am Jeff Lewis.

Tim Kowal And I'm Tim Kowal. Both Jeff and I are certified appellate specialists. And as uncertified podcast co-hosts, we try to bring our audience of trial and appellate attorneys some legal news and perspectives they can use in their practice. As always, if you find this podcast useful, please recommend it to a colleague.

Jeffrey Lewis All right, hang on Tim. We have already violated Rule One, Rule Three, and Rule Seven of our guest rules about public speaking. So we really need this next guest.

Tim Kowal 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 Jon Snow. John, as I said, is a trial and appellate 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 H. King, former Chief Judge of the Central District of California. And John has 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. Jon Snow, welcome to the podcast.

John Snow Thanks guys, I've been looking forward to this.

Tim Kowal Well, as Jeff mentioned, we are always laying down rules and then promptly violating our own rules. We've spoken with a few other legal writing professionals, including Ryan McCarrell a couple of 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 find out all the ways that Jeff and I are violating them. And more importantly, so that we can lord it over other attorneys when we find them falling into the traps that you're going to spell out for us today as we preview some of the tips from your book, Rules to Speak By. But before we get to that, John, can we talk a little bit just about your bio and how you came to become a know-it-all on all things legal writing and oral persuasion?

John Snow Yeah, sure. I mean, I've spent 15 years practicing in the courtroom or preparing to get into the courtroom. And in that time, I realized 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 theory for that is that it is expensive to teach. It's a lot easier to have a classroom with sixty people and do the Socratic method on legal stuff. If you want to teach people how to speak well, you need a low student to teacher ratio and you need people to get on their feet and to practice these things.

Tim Kowal You started 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 Yeah, at every stage of my career I've picked something up. So it really started clerking for a trial court judge. Being behind the scenes in a 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 — look at some of this as 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. At the firm I worked for great trial lawyers at IREL. I learned a lot about how they built up their cases and they're all phenomenal writers too. So to answer your question, yes.

Tim Kowal And you have personally tried twenty-six jury trials to verdict in UCL false claims act enforcement cases as a deputy attorney — which office was that? The City Attorney's Office?

John Snow So the number's higher now. I think I'm around maybe 33 trials. UCL — I haven't tried jury trials there because most of those are bench trials. But I was a misdemeanor prosecutor. I got a lot of trials doing that. That was a great way to get in the courtroom. And then at my last firm, King Holmes Paterno Soriano, 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 Now, through all of your experience trying bench and jury trials, you've had an opportunity to hone some of the tips that I assume you're holding forth today. What are some of the tips that you have used successfully and — maybe more importantly — the traps that you have fallen into and the tips that you now profess out of cautionary tales?

John Snow Sure. So they are rules though, Tim. They're not just tips. No, just to play on our — you know, I do want you to call out rule breakers when you see them. And I know that might be a question you ask, but I call them rules because I try to come up with 10 things that you should really do every single time. 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 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 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. You want to find good examples and see what the best people are doing and try to imitate that.

Tim Kowal Okay, well let's get into it. It's Rules to Speak By. As you say, they're not tips 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 life of the law has been experience and not just logic — that old saying. Why rules, and where is the line between what is a hard rule and what is just a guideline that is a presumption that can be used with discretion?

John Snow 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. 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 courtroom arguments to cater to your audience and make sure that you're heard and that nothing is lost in translation because of the way you have communicated it.

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

John Snow 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 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. And their templates and designs aren't usually designed for learning purposes or to be the most effective. One thing people hear is that their audience will have visual learners and auditory learners, and they should try to cater to both at the same time. But 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 channels. Everybody benefits when you're not duplicating your slides and not having slides that are competing with what you're saying.

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

Jeffrey Lewis Ha ha ha ha ha.

John Snow You're not alone. I think most people when they're in the audience think, this isn't working for me. But then for some reason when you're on the other side and you're presenting, you think, well, this makes my life easier. I don't have to rehearse this much. I could just — it's like karaoke. But 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 can process really quickly. Otherwise you're talking and they're reading and you might as well just step aside.

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

John Snow No, the headings are great. So the slides are like billboards, and that's backed up by the research. One of the leading educational psychologists is at UC Santa Barbara. His name is Richard Mayer — go gauchos. He has a whole principle on this called the headlining principle. So maybe you picked that up sometime, or you just intuitively did it. But that's the point — your main point on the slide is reinforcement. It's not trying to steal the show from you.

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

John Snow Yes. And if you do it in the courtroom maybe you'll cause some jury accidents, something like that.

Tim Kowal Right.

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

John Snow Well, if you put them together and your audience is into it, then you're not boring. So the rules kind of go together. But if your audience is people who just love the one/two space debate, I mean, go to town.

Jeffrey Lewis Well there's no serious debate anymore, but yeah, I get your point. And John, did I hear gaucho? Fantastic. Me too. Woohoo. Very good.

John Snow Right, it's one space. I am — yeah.

Tim Kowal Okay, let me go back to — I'm still burning from being chastised on the distinction of rules versus tips. So let me ask you a couple of things. Tell me if it's a rule or a tip. Peremptory challenge phrasing. This is something that you posted on LinkedIn. You have a series of what you call trial tips, but I want to know if this is a tip or a rule.

Jeffrey Lewis Sorry, Tim.

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

Tim Kowal This is a good clear example 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, the correct phrasing is not "we thank and excuse juror number one." You say "we ask the court to thank and excuse juror number one." Okay, tip or rule?

John Snow That's a rule. You're not gonna get in too much trouble if you break it. 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. And 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 Okay. What about another one you have? I think this is your tip number two — 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. Short questions are harder to evade, you point out. 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 question would be appropriate. So — one fact per question in cross examination. Is that a tip or a rule?

John Snow That's more in the rule column. The point is you want them to build over the course of a cross. And usually on cross you want control. You don't want the 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 more rope to hang themselves with. But usually you want to stay in control and that's done by one fact per question. And 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 ten numbers, you're not gonna remember it. But if it's three, three, four, it seems to work for most people.

Tim Kowal Okay. And our listeners should follow Jon Snow's LinkedIn because he's got dozens and dozens of tips that he puts out regularly. Let's go to oral argument — and this will branch out into the appellate context a little bit. Appellate arguments — it's less about persuading a jury, it's more about answering a panel's concerns. So does your approach to being persuasive at oral advocacy differ in the trial courtroom versus the appellate courtroom?

John Snow 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. 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, you're probably gonna have more success.

Tim Kowal After you give an oral argument in the Court of Appeal, do you ever go back and watch your oral arguments? They've been recording video and audio of oral arguments for the last several years, and you can go back and watch your own. Sometimes when I'm brave enough I'll go back and watch mine. I wonder if that's part of your practice.

John Snow I've written more appellate briefs and done more appellate style arguments in the trial courts, but anytime I speak, if there's recording or video — as cringy as it might feel — I watch it. I'll record myself before a presentation, which is hard to do, and I'll watch it there. I equate it to printing out a 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, just because emotionally it's sometimes hard to watch yourself. But if you can get over that, the gains you get from doing it are worth it.

Tim Kowal I've watched myself after oral argument and just thought to myself, what am I doing with my hands? I've got to either put the hands down or find some new gestures because I'm doing the same thing over and over anyway. But yeah, you get a lot out of watching yourself. You know, you're trying to anticipate, trying to deliver your script, your frame of the case, and anticipate the other side's arguments and write down rebuttal questions, so you can't possibly soak in everything you're doing involuntarily with your hands. But you've written that no one is born with the ability to captivate an audience, and those who look natural have put in years of practice that you can't see. I wonder if you can unpack that a little bit. Because I think we've all known people who seem like they are just naturals. Some people do have a more natural ability — or at least a natural desire and ease in being in front of other people. Many of us who are appellate attorneys probably skew to the introvert side of the scale. And so sometimes oral argument — even though they have the intellectual capacity for it — isn't as fun as it is for many trial attorneys who probably skew more to the extrovert side, getting in and grandstanding and gesticulating in front of the jury and making friends and making themselves likable. They are different skill sets. So what kinds of things can we do to practice and become excellent at captivating an audience even if we don't feel that we're born with the emotional intelligence to be an effective persuasive advocate?

John Snow Right. So that comes from anytime a successful speaker has pulled back the curtain and talked about what they do — they always reveal that they usually just practice more than other people. Famous TED Talks, when they're asked how many times they rehearsed, sometimes it's near a hundred times. And you watch and think, 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 people skip it because it's uncomfortable, or they practice in the wrong way — kind of holding a piece of paper and reading 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. 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. And also — 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 dreaded being cold called on. But it is such a valuable skill that once you recognize that and work at it, you feel more confident and find more joy in it. That's something I want people to take away from this. It's sort of like a form of exposure therapy, right? If you don't like the sound of your voice when you listen to it — 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. 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 Hm. Jeff still hates my voice, but he's the exception.

Jeffrey Lewis It's fantastic. But I will say — the first fifty podcasts we did during the pandemic, those were rough. Practice makes perfect.

Tim Kowal Yeah. Well, you mentioned John about TED Talks, and I had heard that too, that people who give TED Talks practice meticulously. But then it occurred to me that I don't know what the method is. I can imagine there's probably a lot of memorization, then rehearsing and finding the right beat and the right pause, the inflection of the voice and everything. I wonder how much of that type of preparation carries over into trial preparation or appellate oral advocacy preparation. Because as you say, you can memorize your whole outline. But then — as I did yesterday — I got one sentence in to my outline and got derailed and was answering questions the rest of the time. So I could just throw the rest of my outline and script into the waste paper basket.

John Snow 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 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 little boxes sprinkled throughout called "Quick Tips from Other Advocates." One I got was from one of your other podcast guests, appellate lawyer Stefan Love. And he talked about how he would prepare for oral arguments. What he does is an index card method where he anticipates questions and writes them on index cards and shuffles them and pulls them out and practices spontaneously responding. And I think this is one area where AI can be effective if you have a good tool. I heard Neil Katyal 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 the justices would ask.

Jeffrey Lewis Hang on. Yeah, that was a fantastic TED talk he gave, but it wasn't clear if it was the sports coach, the massage, or the AI that really pushed him over the edge. But yeah, his AI methodology — if you haven't listened to that TED talk, it's fantastic.

John Snow Yeah. He got some backlash, I think, but at least he showed it all and I think people benefited from hearing how he pulled it off.

Jeffrey Lewis Yeah.

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

John Snow Yeah, let me know where we could buy Claude GPT.

Tim Kowal That's right. Yeah, I should make it available. Is there such a thing as a lawyer being over-prepared or too rehearsed for an oral argument or for a trial?

Jeffrey Lewis Ha ha ha.

John Snow 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 talked about earlier, where to give your pauses the right tone and how to hit the points you want, but also leaving room for some spontaneity in the moment — I think as much as you can squeeze in, you're gonna benefit from it.

Tim Kowal Yeah. As you're giving the answer, I recall the Mike Tyson doctrine — everyone's got a plan until they get punched in the mouth. You can get up there with the greatest script and the greatest preparation. So you need to be prepared not 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. In that sense there's a lot involved in preparing for an argument, trying to anticipate how could someone not see things my way. You get so invested in your own case. Do you have any methods for anticipating that and how to win over someone who just doesn't see things your way?

John Snow Right. So I think questions are great. I mean, that's really the whole purpose of oral argument, right? 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" — as they call it — ums or "I think," or start hedging. You still want to be confident 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 transition to your blocking points. Because if they've derailed you and you want to squeeze in your extra two or three lines before getting to their question, they're not really going to hear it. They're going to get frustrated. So try to figure out where the question's coming from. If it's a minor point that isn't critical or dispositive, 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 what they really want is just: how can I solve this case 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 find another path, rather than ruining your credibility arguing with the judge over something inconsequential.

Tim Kowal Can I back up for a minute, just to talk about the origin of the book, Rules to Speak By. When did you first get the idea to write this book? Was it that you had assembled a list of rules and realized not enough people understand these rules — that these are not tips, not guidelines, not best practices, these are rules. What was the origination?

John Snow Ha ha. So I started off as a fan of the genre. I'm a nerd who 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 sort of knew what was missing in the space. A lot of 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 we could learn things from, like the Alec Baldwin trial or the Johnny Depp/Amber Heard trial — really anything in the news. And so I tried to bring more attention to those. And it was a little bit like — as a child, I loved basketball and I'd watch a great basketball game, go outside and start playing and feel like maybe I could be in the NBA. That didn't prove true. But at least here with something I enjoyed doing, I had some success in entering the ring and writing my own thing, which was a lot of fun.

Tim Kowal Now, are you one of those lawyers who loves following those trials of the century — the ones that are broadcast on TV — and reading the transcripts the day of? Because I've got to admit — and maybe this is the appellate attorney side of me — I just say, call me when the thing is over and I'll pick it over in one sitting. But do you like taking the drama in as it unfolds?

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

Tim Kowal Yeah. I mean, the value that appellate attorneys like Jeff and me try to bring to a trial is just preserving the case for another day. If things don't go as planned at trial, then maybe we can take another 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 some of the big rules that you have picked up from some of the best trial attorneys in delivering their opening statements, cross-examination, or direct examination of your own client? Sometimes your own client — you think you've rehearsed and rehearsed and then they go off script. What are some of the rules you picked up from watching the best attorneys?

John Snow So framing in opening is huge. How you tell the story — every story has different angles. Finding the best angle that your jurors can relate to. 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 trouble relating to somebody who spent the kind of money this person did on wine. 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 finding the way to frame a case to resonate with your juries is huge, because people come into all these with their pre-existing views and beliefs. And if what you're saying fits in nicely with that view, the cognitive ease of them agreeing with it is very easy. If it conflicts, you've made your job a lot harder.

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

John Snow Motions in limine 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 maybe this person's hiding something and they start speculating. But if you are able to handle those issues outside their presence with a motion in limine, or before they are called in when there's a moment with just counsel and the judge and you can go on the record to do it then, that's the best place to do it. I think Vincent Bugliosi — you know, famous 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 Do you think there's any merit — this is something that sometimes I will tell my trial attorney clients — look, if you're going into trial, you might want to have me there as an appellate attorney, so you have someone to blame, someone who's going to slow down the trial or make the objections that the judge doesn't want to hear or that the jury doesn't want to hear. Is there any merit to that strategy?

John Snow Yes, at my last firm we did have embedded appellate counsel in one case as they were trying it and it was hugely helpful. There'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 What are some other — tell us a little bit about your teaching and coaching. You 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 The most intensive training that we do in the office is for younger attorneys. 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 condense it a bit to fit it into their busy schedule and workload.

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

John Snow 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 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 there are rules on that one. So if you get there, I think it's chapter eight — I tell all my secrets.

Tim Kowal I need that one. Yeah, well, speaking of hand gestures — that's one aspect of body language more generally. How important is that to overall persuasion? I mean, we talk about the intellectual aspect of trying cases and the preparation that goes into that. But they say some outsized percentage of communication is body language and how people see you presenting. Do they even believe their own argument? How much does that factor into Rules to Speak By?

John Snow Right. So in the book, I debunked this idea that you could give a number to it. There's this study from the sixties, which is the origin of this large number. But what happened there is they're testing people's reactions to speakers who are just saying 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 really is part of it. There's a thing called the halo effect where if you appear confident and 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 So confidence while speaking and presenting. What about 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 tearing your case to shreds? Are you coaching, whispering to your client? Does your method take those things into consideration?

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

Tim Kowal Calculated yawns and stretches just to signal this doesn't bother us at all.

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

Tim Kowal What are some ways that you can convey your natural personality in front of a jury? And I wanted to segue also into civility. The way that you communicate and interact with opposing counsel — is that picked up on by jurors?

John Snow Yes, absolutely. Your goal is not winning a fight, 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. And then 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 than you think. We don't need to use 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. If you make a mistake, you can make fun of yourself a little bit. I talk about this — there's the Pratfall effect, right? They did studies of lecturers, and when somebody 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. So if things go wrong at trial, lean into it. And try to have a little bit of enjoyment with what you're doing.

Tim Kowal You're kidding. Well, now that you've said that and framed it as a Pratfall, there are gonna be attorneys thinking about how they can spill their coffee on themselves, say shucks.

John Snow Stage your bloopers, right? Yeah. For me they've always just happened naturally, unfortunately.

Tim Kowal Yeah. And I guess that's only going to have any value in front of the fact finder. So there's no point, Jeff, in us saying, let the record reflect that I have just clumsily spilled my coffee on my lap.

John Snow Although people might chuckle if you say that, but I don't know how much it helps you on appeal.

Tim Kowal That's right. What about maintaining 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 mean — let me read from some of the transcript that you posted on trial tip 63, reporting on the Sam Altman and Elon Musk trial. And Musk's attorney Molo had this initial exchange with Sam Altman. 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?" Altman: "I'll just amend my answer to say yes." Molo: "Should the jury believe your testimony?" Altman: "I think that's up to them, but I believe so." Molo: "You believe so, or they should?" Altman: "Sir, I'm not going to 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 Molo's marching down like that with very absolute qualifiers — "always," "completely" — forces him into a box and makes him hedge his answers and look a little squirrely in front of the jury. I can 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 Yeah, absolutely. You sort of need to read the jury. 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. I don't think I've ever started off a cross-examination 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, 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. That said, I think Altman won the trial on a statute of limitations issue. So you can never really know at the end of the day whether that cross contributed to the loss. It's nice to talk to jurors about it. And I've 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, sometimes you catch more bees with honey than vinegar.

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

John Snow When I can and it's appropriate to do so, I have talked to them and found it helpful. Sometimes there are risks to doing that, or just logistically the court holds you after the verdict and they're all gone by the time you get out. But I'll take feedback anywhere I can get it — that's 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, people might look up to you and might be afraid to give it to you. And those people have to spend a lot more money on expensive focus groups and jury panels to get the feedback. So if you're early in your career and somebody's willing to give you advice, just take it.

Tim Kowal Speaking of cross examination, you had another tip on your LinkedIn feed advising to give short questions on cross — and you call this the George Costanza rule, saying that with a hostile witness 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 where 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 the three critical facts in staccato, single-fact sentences, and the conclusion is inescapable that George double dipped the chip. Our audience can find more of those excellent trial tips on Jon Snow's LinkedIn page and in the book Rules to Speak By. I had one other question about juries. When after the jury gets impaneled, do you ever advise changing trial strategy from the persuasive standpoint — not necessarily the total case strategy, but just kind of shading around the edges of how much to beat up on a certain witness or how much to focus on a certain element of the case, depending on which jurors got impaneled?

Jeffrey Lewis Yeah.

John Snow Yes, absolutely. 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 approach. So if there are jurors who swing really one way on a political issue, you want to try to frame it to at least be consistent with their worldview on that, and vice versa.

Tim Kowal Just on a point of practice — not really related to your book — but you have worked in private practice and then for the LA City Attorney's Office. Can you tell us a little bit about the difference in practice and approaches? Is handling a trial in a regular commercial case different from the way you would handle trials at the City Attorney's Office?

John Snow Some of it just differs based on the amount of preparation time you have. In a civil case, there's two-way discovery and depositions, and you go in knowing pretty much most of what a witness is gonna say, and you can build your crosses around that. If you're trying a criminal case as a prosecutor, there are a lot more surprises at trial and there aren't depositions. So the prep is a little bit different. That said, if you're in California state court, it's the same exact evidence code, the same exact local rules, very similar judges wearing the robes. So there certainly are similarities. And you're talking to people from the same community. But yeah, I think in some ways the prep for civil trials is more exhausting — 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, where you need to be a little bit more nimble.

Tim Kowal 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 you could give to attorneys who are not trying the trial of the century and have unlimited resources to prepare — attorneys who have to just get the file worked up over the weekend for a Monday trial they just came on to the week before — what are some of the most high-leverage rules you can provide to those attorneys as they walk into a trial they just signed on to?

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

Tim Kowal Is there anything else — any other rules, tips, or questions that we didn't get to that you wanted to cover, John?

John Snow I guess I would end with the last one. A lot of people say, "I'm just not gonna rehearse or practice because I want to be natural." I tell people, being natural doesn't mean don't practice. If you want to get comfortable and have confidence doing this, treating it as a valuable skill set and practicing is really important. And it helps with a lot of nerves too. Almost every public speaking book I picked up started with how to overcome your 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. So I advise people to start thinking about just giving 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 Yeah, I do find that rehearsing scripts — even if you know you're gonna get derailed and won't be able to give the script from beginning to end as you've written it — 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. I totally agree with you there.

Jeffrey Lewis Let me sneak in a word if I could here, Tim. John, congratulations on a great book. 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 and congrats — it's good.

John Snow Thanks, Jeff.

Tim Kowal Thanks again to John Snow. And please pick up the book Rules to Speak By from Carolina Academic Press. We'll have the link in our show notes. And that's gonna wrap up this episode, Jeff. If you have suggestions for future episodes, please email us at info@calpodcast.com. In our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial. Thanks again, John.

Jeffrey Lewis See you next time.

John Snow Thanks for having me on.