This week, I began what has become an annual adventure: coaching students on oral advocacy skills to prepare them to compete in national moot court competitions. This same week, I also learned that a talented former colleague had a fantastic adventure of his own, presenting a non-moot oral argument before this nation’s highest court: see http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-864.pdf . The transcript reveals that Barry deftly fielded a barrage of questions from justices who, from their rarified position on this country’s most elite appellate court, do not seem entirely familiar with how trial courts routinely handle the issue of an expert witness’s reliability before allowing that expert to testify (as opposed to how lawyers use cross-examination to test the relative probity of an expert’s testimony that, though imperfect, is nevertheless sufficiently reliable to be admissible). Every trial lawyer knows the famous SCOTUS case that first announced the “gatekeeper” role that trial judges are supposed to play when a party objects to an expert’s potential testimony: Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). And Barry even injected a bit of humor into his argument in response to a question from Justice Scalia about the hotly contested issue concerning the proper pronunciation of “Daubert.” (Some prefer the French “Dau-bare;” I always thought that, at least in Texas, “DOW-bert” was the preferable approach.)
In light of this amazing synchronicity—that someone I know had a real-world SCOTUS argument just as I began working with law students on how best to approach fake versions of such arguments—I decided today was a good time to trot out a theory I have about oral arguments. This theory is that Hamlet’s speech to the players provides a terrific compendium of tips that oral advocates should embrace.
First, a quick refresher: The speech to which I am referring is delivered to a traveling band of thespians who decide to pay a visit to the Danish court. The players’ arrival excites Hamlet. He is eager to see them perform. He has ulterior motives, though. He also wants them to take a particular set piece, “The Murder of Gonzago,” make a few adjustments, and then perform the modified version for the King and Queen. The modifications that Hamlet makes capture his understanding of how his father was recently killed—such that the present king, Claudius, snuck up on his older brother, Hamlet Sr., while the latter was sleeping in the castle garden and then Claudius poured poison into Hamlet Sr.’s ear. While watching the murder’s reenactment, Hamlet Jr. hopes that Claudius will be startled into revealing his guilt. In preparing to set this “mousetrap” whereby Hamlet hopes “to catch the conscience of a king,” Hamlet spends all of Act III, scene 2 offering advice to the actors about how to do their jobs. The speech begins as follows:
Speak the speech, I pray you, as I pronounced it to
you, trippingly on the tongue: but if you mouth it,
as many of your players do, I had as lief the
town-crier spoke my lines.
In other words, Hamlet urges the players to use good diction yet avoid unnecessary theatricality or bellowing; otherwise, Hamlet suggests, he might as well entrust the play to someone hawking things in the public square. To be convincing as real people, the players must seem conversational even as they take pains to make their speech intelligible from a stage.
Likewise, lawyers engaged in oral argument must adopt some formality, calibrating their speech (in terms of volume, pitch, pace, and diction) so they are easy to hear and understand in the particular forum. Yet the style of their speech should also seem conversational, inviting the judges to interject and ask questions. Trying to lecture or shout at the justices will not be effective.
In subsequent posts, I will work my way through the rest of Hamlet’s long instruction manual to test my long-standing hunch about Hamlet’s relevance to oral advocacy. Stay tuned.