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• The Power of Persuasion: Effective Techniques for Lawyers

• Editorial Team
• June 13, 2023

Persuasion is a crucial skill in the legal profession. Lawyers need to effectively communicate and convince judges, juries, and even clients of their arguments. Mastering the art of persuasion can significantly impact the outcome of a case and the success of a lawyer’s career. In this blog, we will explore some effective techniques that lawyers can employ to enhance their persuasive abilities and achieve favorable results in the courtroom.

• Understanding Your Audience: Persuasion begins with a thorough understanding of your audience. Whether addressing a judge, jury, or client, it is crucial to consider their perspectives, values, and concerns. Tailor your arguments to resonate with their interests and frame your message in a way that appeals to their emotions and logic.
• Building a Compelling Narrative: Storytelling is a powerful tool in persuasion. Instead of presenting dry facts and legal precedents, weave a compelling narrative that engages and captivates your audience. Connect with their emotions by incorporating relatable characters and real-life examples that support your arguments. A well-crafted narrative can leave a lasting impact on the minds of those deciding the case.
• Strengthening Arguments with Evidence: Evidence forms the backbone of any persuasive argument. Lawyers must gather and present strong evidence that supports their claims. Utilize various types of evidence, including expert testimony, documents, photographs, and witness statements, to substantiate your arguments. Well-presented evidence not only enhances credibility but also helps the audience understand the facts and merits of your case.
• Mastering the Art of Rhetoric: Rhetorical techniques can be powerful tools in persuasive communication. Lawyers should employ techniques such as logical reasoning, analogies, rhetorical questions, and powerful language to craft convincing arguments. These techniques can help lawyers effectively address counterarguments, highlight inconsistencies in opposing views, and establish their own position as the most compelling.
• Active Listening and Empathy: Persuasion is not just about talking; it also involves active listening and empathy. Lawyers should carefully listen to the concerns and perspectives of their audience, including clients, witnesses, and opposing counsel. By demonstrating empathy and understanding, lawyers can build rapport and credibility, which can positively influence the decision-making process.
• Adapting to Different Communication Styles: People have different communication preferences and styles. Lawyers should be flexible in their approach and adapt to the communication style of their audience. Some individuals may respond better to logical arguments, while others may be swayed by emotional appeals. Understanding and catering to these preferences can enhance the persuasive impact of your message.

The power of persuasion is a vital skill for lawyers seeking success in the legal profession . By understanding their audience, building compelling narratives, employing strong evidence, mastering rhetoric, practicing active listening, and adapting to different communication styles, lawyers can significantly enhance their persuasive abilities. Developing these techniques takes practice, but the rewards can be substantial, leading to favorable outcomes in the courtroom and a flourishing legal career.

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May 22, 2019 The Modern Law Library

Public speaking skills every lawyer should master, by ashley alfirevic.

For every lawyer who thinks they have oral presentations down pat, there’s another who has anxiety about talking in front of a crowd. And they both need help.

As an attorney and a formal federal law clerk, Faith Pincus gives lawyers the tools they need to succeed at public speaking. Her book, Being Heard: Presentation Skills for Attorneys , distills 25 years of coaching knowledge into one compact volume of tips and tricks.

In this episode of the Modern Law Library, ABA Publishing’s Ashley Alfirevic speaks to Pincus about how to ditch the notecards, engage the audience and ask the right type of rhetorical questions.

Between oral arguments and CLE seminars, legal professionals are constantly presenting. In Pincus’ experience, lawyers always need help with their speech’s organization and preparation, regardless of whether they feel confident enough to wing it or nervous enough to carry novelesque notes.

Podcast listeners can purchase Being Heard through the ABA web store . Listen to the podcast for an exclusive 30% discount code.

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In This Podcast:

Ashley Alfirevic Faith Pincus has trained attorneys, CEOs, elected and appointed officials, candidates and management for more than 25 years. As an attorney and former federal law clerk, she is positioned to understand the speaking skills required of attorneys. She is the author of Being Heard: Presentation Skills for Attorneys .

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4 Key Steps You Can Take to Improve Your Public Speaking

Stacey Leeke | August 24, 2014

Lawyers are known for their ability to stand in front of a packed courtroom and deliver a powerful closing address. Once outside the familiar courtroom, however, many break into a sweat at the mere thought of presenting in front of colleagues or a boardroom of clients. Here are some simple strategies to help you tackle your fears, improve public speaking and present with poise and confidence to any audience.

Speaking confidently before a group is one of the most important skills that any lawyer can develop. But what if your knees turn to jelly at the sight of a lectern?

There are several ways you can improve public speaking by preparing in the weeks, hours and moments leading up to your speech. These four key steps will train your body and your mind, and ensure your delivery is engaging and memorable – for the right reasons.

1. Optimise your voice

Poor air supply and voice control can result in a weak, high-pitched or strained vocal tone. Like an athlete, however, you can train your body to properly manage your air reserves, even when nerves take hold.

Practice standing with good posture and breathing into the lower part of the lungs, then expelling the air gradually using your abdominal muscles, without tightening the throat. Tip:  this will require you to push your stomach out, so avoid clothing that will constrict your waist.

2. Control your movements

Any outward manifestations of nervousness need to be controlled for us to feel and appear poised. Be conscious of any tendencies to touch your face, shuffle your feet or clasp your hands, and consider how to avoid them.

Feeling well prepared is vital to avoiding these nervous tics, so get comfortable with your material. Concentrate on why you are passionate about the subject matter and consider how the information will be of great value to your audience.

3. Use visual contact to relax

Give yourself a few seconds to relax and compose before you begin speaking by engaging with your audience through visual contact. Throughout your speech, address individuals in the audience directly by saying a few words to each of them.

Effective eye contact is best maintained if notes are kept within glancing distance. However, be prepared to make climactic or key statements with full visual contact for maximum impact.

4. Harness your conversational quality

Attempting to ‘parrot’ a precisely-worded script often results in a stiff, formal and disjointed delivery, which will quickly lose your audience’s interest and attention. Focusing on understanding and getting comfortable with the ideas you are going to convey, as opposed to the sentences, will enable you to speak more naturally and extemporaneously.

Applying these simple strategies will improve public speaking as well as improving your poise and delivery as perceived by an audience, plus bolster your internal confidence too. While you may never eliminate the butterflies completely, with practice you can bridle them to become an engaging and dynamic speaker.

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How To Be Persuasive – A Guide For Lawyers

You begin to notice a pattern with the attorneys who are consistently good – they are very good persuaders, no matter what practice area they're in..

Borrow From Professions That Are Better At This Than Lawyers

Marketing and sales are professions that understand better than anyone else that it’s not what you say, but how you say it. Some of the best books I’ve read about how to be a lawyer were not lawyer books at all, but pure marketing books. Being successful in marketing and sales relies heavily on cognitive science to find out ways to manipulate people into choosing one thing over another. Being a lawyer means getting judges or juries to choose me over the other guy. Having a great product makes it easier to sell it, but often, it’s the art of the sale that closes the deal. Same thing in law – being right helps, but that is only half of the battle. The part that lawyers often forget is the art of persuading others that you were right. There is a science to it and a deliberate way to deliver the message to sell your argument.

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Look also at the world of corporate storytelling. There’s a reason why Apple dominated the mobile device market. It’s one part product and one part Steve Jobs’s ability to be a corporate storyteller . Nancy Duarte gave this TED Talk about the patterns Steve Jobs used in his release events to present his products.

There’s a reason why people would give a standing ovation when he would finish talking about the features of an mp3 player. He would present information in a specific formula to evoke emotion and curiosity that actually made people stand up from their seats and clap.

Harvard Business Review has this to say about corporate storytelling:

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The other way to persuade people—and ultimately a much more powerful way—is by uniting an idea with an emotion. The best way to do that is by telling a compelling story. In a story, you not only weave a lot of information into the telling but you also arouse your listener’s emotions and energy. Persuading with a story is hard. Any intelligent person can sit down and make lists. It takes rationality but little creativity to design an argument using conventional rhetoric. But it demands vivid insight and storytelling skill to present an idea that packs enough emotional power to be memorable.

That is just as applicable to the boardroom as it is the courtroom.

Don’t Let Computers Stand In The Way

There’s no app for being a better storyteller. Sorry. I’ve written numerous times about the problems I have with the use of PowerPoint in trial . Josh Karton, a consultant who teaches litigators to use theater techniques to be more persuasive, and David Ball, a consultant who teaches lawyers how to organize arguments to get larger verdicts, discussed this in a podcast for the ABA Journal a few years ago. The whole podcast and transcript is here , but the key point is this:

David, I was going to say something about that. You said this great thing once, well many times, about don’t let — friends don’t let friends overuse PowerPoint …. You watch in a room, even at a seminar, when somebody’s using PowerPoint, and again I’m qualifying it, to introduce new things, it’s very different later on and very much easier to use but in an opening, you put up that new thought and people stare at it, and the dangerous thing that happens is not just that they’re out of contact with the attorney because they’re staring at a screen, but they now think they’ve got the gist of what you’re going to say so they tend to stop listening as carefully .

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They are both very critical of using PowerPoint, but agree that it can be used effectively in certain circumstances, as long as you don’t over use it or misuse it. As someone who does a lot of work consulting with attorneys on the effective use of trial technology, I can say this is the key.

One thing I do when I am in court is track eye movement of jurors to see who is bored and who is receiving the information we are giving. In his book The Tipping Point: How Little Things Can Make a Big Difference (affiliate link), Malcolm Gladwell points out that tracking eye movement is one of the best ways of scientifically determining what information a listener is receiving . Try watching a movie with subtitles. You can focus on the performance or read the subtitles, but not both. If you are focusing on the performance, you are missing the subtitles. If you read the subtitles, you are missing parts of the performance. It’s probably not the intention of the director to make you choose between the two, just as it’s not the intention of the attorney to have the jury switch focus back and forth between the attorney’s story and bullet points on a screen. Bullet points might be a good way to convey information, but they detract from the emotion of the story, which results in poor persuasion.

Jeff Bennion is Of Counsel at Estey & Bomberger LLP , a plaintiffs’ law firm specializing in mass torts and catastrophic injuries. He serves as a member of the Board of Directors of San Diego’s plaintiffs’ trial lawyers association, Consumer Attorneys of San Diego . He is also the Education Chair and Executive Committee member of the State Bar of California’s Law Practice Management and Technology section. He is a member of the Advisory Council and instructor at UCSD’s Litigation Technology Management program. His opinions are his own. Follow him on Twitter here or on Facebook here , or contact him by email at [email protected] .

Advice , Advocacy , David Ball , Jeff Bennion , Josh Karton , Litigation , Litigators , Malcolm Gladwell , Nancy Duarte , Persuasiveness , PowerPoint , Practice Pointers , Steve Jobs , Technology

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Public Speaking Tips for Law Students and Lawyers

Here, we have some public speaking tips for law students and lawyers. Law students and lawyers are frequently expected to speak in public. It is a skill that law students are forced to develop early on in law school – whether they want to or not.

Law students are “called on” in class and are required to answer questions about the cases they are assigned to read. They are usually expected to present arguments or motions during their 1L year to professors or judges. Many law students also participate in moot court where they have to argue publicly even more. Thus, throughout law school, law students will be expected to speak in front of their classmates, their professors, and – many times – even real judges.

Many lawyers continue to hone the skill of public speaking throughout their careers.   Litigators frequently have motions to argue and depositions to take. Some give presentations about hot topics in their field of law. Others become law professors, judges, or politicians – all who frequently interact with and speak to the public. 

Many people fear public speaking. They get nervous before they have to speak and usually try to avoid it if possible. What are some tips on becoming a better public speaker? We constantly speak in front of groups — ranging from five people to hundreds of people. We speak in front of students, law school faculty, and firms. We frequently work on becoming the best public speakers we can!

Here are some public speaking tips we have found useful. They are by no means a comprehensive guide on how to structure a speech or how to speak. They are just some tips that have helped us.  Some are more appropriate for traditional speeches (arguments and motions); others are more appropriate for spontaneous speeches (being called on in class or questioned by a judge).

Basic Public Speaking Tips for Law Students and Lawyers: 

• Our number one tip if you are giving a speech you can prepare for ahead of time? Practice, practice, practice. Practice in the morning when you get up. Practice when you drive. Practice while you’re getting ready for the day. Practice out loud. Practice in your head. Practice until you are absolutely sick of it. Before a big motion or speech, I will practice it twice a day the week before the event.
• Pay attention to fillers – “um,” “like,” “you know,” etc.  Consciously try to replace them with silence.
• Give your audience some idea of how your speech is organized. If you are going to make three arguments, say it right in the beginning then number them throughout the speech. This helps the audience have an idea of where you are in your speech. Reiterate your major points in your conclusion.
• Does your dad, spouse, or friend owe you a favor? Have them watch your speech and give you feedback. They can be a source of invaluable information and point out good and bad things that have managed to escape your radar. Positive feedback will also help to boost your confidence prior to giving a speech.
• Videotape yourself. I used to hate this tip and would adamantly not do it. However, recently I started videotaping myself frequently for the law school preparatory course I teach online. I noticed that in the beginning I would use fillers (“okay” and “you know”) and shrug a lot. This made me look as though I really wasn’t that confident in what I was saying. I would have never noticed that I was doing this until I started taping myself. It is a painful but necessary part of the process!
• Visualize success. Visualization is a powerful, often overlooked tool. If you visualize yourself doing well (and prepare well, of course) it can very easily become a self-fulfilling prophecy. (Note: the opposite can happen if you constantly visualize yourself failing or forgetting what you wanted to say – be sure to counter any negative visualizations with positive ones!)
• Watch this Ted talk about body language by Amy Cuddy . It is not directly related to public speaking but it shows how body language can make you more confident. I have used the information I learned in the talk to improve my own speaking skills. If you are interested in this concept of body language making you look and feel more powerful/confident, I recommend look up information on power poses and how you can use those to your advantage.

Tips for Improving your Speech Even More:

• Pay close attention to how you open your speech. Audience members pay the most attention – and decide if they are going to listen to what you have to say – in the first ten seconds of your speech. A good introduction is crucial. Start with a question, a story, or something attention-grabbing.
• Speak conversationally and clearly to your audience.  Don’t use legalese when possible – You’ll be sure to lose your audience quickly if you do.
• Get used to making eye contact with the audience rather than staring at your notes or off into the distance. This helps people to engage with you and pay attention to what you are saying.
• Slow down. Many speakers rush through their speeches and speak really fast. If you notice yourself doing this, slow down.
• Make use of silence,  pauses, and volume. A pause at just the right moment can help get a message across and call attention to what you are saying. Don’t be afraid to raise your voice a little bit in some instances and speak quieter to draw attention to what you are saying in other instances. It helps to practice this ahead of time and even include pauses and volume indicators in your speech notes so you remember to do so.
• Use humor if it’s your style. Ask questions that force listeners to truly consider what you are saying. Use stories. Try to make whatever you are saying enjoyable to the listener. People tend to remember personal stories much more than they remember facts or data.
• For more traditional speeches (rather than arguments): Identify with your audience. What do you have in common with them? How can you relate to them? Have you been in their position before? Explicitly state it. Also, state why you are qualified to speak. Did you start a fantastic business? Are you an expert on the subject you are talking about. Have you been researching the topic you’re talking about for years? Say it.

Tips to Remember the Day of Your Speech:

• Look your best the day of your speech. It will help boost your confidence.
• Get to the room early. Getting to the room five or ten minutes before everyone else arrives can help relieve any anxiety that has built up to that point. Some people find it very helpful to visit the room a few days before their speech as well.
• If you get nervous, it is helpful to remember these things: First, remember that most people want you to succeed and do well. If the speaker is nervous, generally the audience is sympathetic and tries to be encouraging. So if you are nervous – even if it shows –that’s okay! Second, remember that people are there to hear your message. Focus on your message rather than focusing on yourself. After all, the audience is not there to judge your public speaking skills; they are there to hear what you have to say. This should help to relieve some anxiety.
• Start with the same amount of energy that the people in the room have. If everyone is groggy, it is probably not a good idea to start off with a peppy overly-enthusiastic introduction or you risk isolating yourself from the audience. Instead, start with the same energy that everyone in the room has, and gradually change it to make it more peppy/enthusiastic if that is your goal.
• Don’t pay attention to people who are not engaged. Every time I give a speech I see someone texting, on facebook, or staring off into the distance. It is always discouraging and it almost always throws me off track. But I started to make mental notes not to look at anybody who is not engaged and instead pay attention to the people who are nodding or who look more interested and engaged.

These are a compilation of tips that have helped me. If you have any public speaking tips for law students or lawyers of your own, please feel free to share in the comments section below. We would love to hear from you.

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Lawyer Public Speaking & Teaching

By Stephanie Everett

News Articles Law Firm Marketing

If you’re comfortable on the stage (or willing to hone your skills – more on that later), public speaking can be a great way to establish your expertise in an area and grow your reach to new audiences.

Like any aspect of your strategic marketing plan, your public speaking strategy should be, well, strategic. You should understand who you’re trying to target with your speaking and how the speech fits into your overall marketing plan. 

For example, teaching a CLE to lawyers could be a way to connect with new referral sources. Conducting a lunch-in-learn at a local community center could allow you to connect with potential clients who need your services. For every opportunity presented to you, consider how this fits into your overall marketing strategy. 

How to Prepare for Presenting 

Pick a topic (and frame it well).

An audience is more likely to show up and be excited about attending your CLE or talk if it’s an interesting topic. How your frame your presentation is crucial.

For example, an overdone and mundane way to frame your CLE topic would be “Hot Trends in Personal Injury Law.” This isn’t specific enough to be enticing. A better choice would be “Three New Areas of Personal Injury Law That Every Tort Lawyer Will Need to Know In 5 Years.” Instead of a “Beginner’s Guide to Writing a Will,” try something catchier like “Want a Good Will?  Here’s the 10 Point Checklist that Every Estate Planning Lawyer Uses.”

Take the Opportunity to Learn a Substantive Area of the Law

Speak on topics that you know well or be prepared to get up to speed quickly on the topic. If your strategy includes teaching CLEs to lawyers, look for teaching opportunities that coincide with your current caseload. Are you working on an excessive force case?

Now’s the time to sign up to teach a qualified immunity CLE. This method has the advantage of honing your skills in an important area as well as motivating you to create the best possible CLE materials because they can double as case research.

Make an Outline

Like a good brief, the key to an effective presentation is organization. No one wants to listen to someone darting from one topic to another. That’s why an outline is critical.

If you start with an outline, it’s easy to see the big picture. You’ll understand how you want the topics to transition and fit together. An outline can also make it clear where there is a gap in your presentation and highlight repetitive portions of your presentation.

Spend Time Putting Together Quality Materials

Preparing materials doesn’t mean just printing out a bunch of statutes or old articles you wrote. Instead, consider your audience and what materials they’ll find most helpful after the presentation. No matter what, your content should be direct, easy to follow, and up-to-date.

If you’re presenting to attorneys, create materials that are useful and can be used as a reference later.  Highlight key cases or recently enacted statutes so even veterans in the field might pick up something new.

Ideally, you’ll cite all the major cases in your practice area and address topics that are peripheral but interesting. If there’s a law review article or a book that’s helpful, cite it as well. 

If you can turn your presentation into a short manual, attendees will keep it, which could create referrals in the future. It’s also a clear sign that you put serious effort into your presentation – great for your reputation !

If you’re presenting to potential clients, you probably don’t need to leave behind a treatise. Aim to put together checklists, forms, and other useful materials for people to use once they leave.

Get the audience members engaged by having them work through worksheets or questionnaires during the presentation. Make sure your materials are branded and have contact information so people can easily connect with you later.  

To PowerPoint or Not to PowerPoint?

After you have an outline and materials, it’s time to determine if you should use slides to enhance your presentation. First, make sure the facility has the capability of showing a slideshow. Assuming they do, think about whether you need a PowerPoint, or if you just think you need it because everyone else uses them.

Attendees almost always expect a slideshow when they attend a presentation. Without it, they may think you forgot or were just too lazy to put one together. Nonetheless, you will find endless advice on the Internet on whether slideshows are the best or worst tool ever created for speeches.

If you decide to include a slideshow, use it as a guidepost. The slides should be the starting point for a conversation. This will help frame your topic and remind people where you are.

And follow some easy rules. Guy Kawasaki implores presenters not to use more than ten slides, and only use thirty-point font or greater. Your presentation may be complex enough that ten slides are too few, but you should strive to use as few as possible.

The audience is there to hear you and not to read the entirety of your presentation from slides. Keep the information on the slides limited, and make sure you are the one giving the lesson, not the slides.

Finally, have a backup plan. Computers crash. Flash drives get corrupted. Your presentation may not work. That means you need to be ready to roll without the aid of a PowerPoint slideshow.

Practice Your Speech

Don’t write out your entire speech. If you do, you’re likely just to read it and you’ll sound formal and stiff. However, don’t memorize your speech either, because then you will spend most of your energy reciting rather than connecting with your audience. You should, however, practice your speech.

Every time you create or revise a presentation, you should practice. You should know if parts of your presentation don’t flow long before you’re in front of an audience. You should work on what to say, how to say it, and what to leave out. 

But the most important thing for you to focus on is pacing. You need to know how long your presentation will run when you don’t have an audience. With an audience, your presentation could go faster (because you’ll talk more rapidly) or slower (if there is a lively discussion).

Consider planning presentations in ten-minute blocks. If you plan out an hour, break it into six blocks. If you near the end of your first planned block and there are three minutes remaining, tell a story you weren’t sure you would have time for. If you fill time intermittently using ten-minute increments, it will be much less noticeable than filling fifteen minutes at the end of the hour.

Prepare Your Body

Yes, you need to prepare your notes, but you also need to make sure your body cooperates on the day of.

A couple of basic physical tips to get ready to present:

• Get enough sleep. Even if you have written the world’s best presentation and practiced it to the point that you know how long it will take, none of that will matter if you show up with two hours of sleep when you normally get seven. Everybody uses different techniques to ensure they get a good night’s sleep, but do everything you can to be well-rested.
• Eat right. This isn’t about telling you what to eat on the day of your presentation. Rather, it’s about telling you what not to eat: something new. The day you present isn’t the time to try a new recipe for a kale/calamari/pomegranate omelet that you’ve heard about. Only eat food your body is familiar with before presenting. The day of a speech is not the right time to start a new diet. You, and your stomach, want familiarity.
• Wear something you have worn before. It’s great if you want to get new clothes before you give a presentation, but you should test the new outfit before presenting so it feels comfortable and familiar. Shoes are a different matter. New shoes can take some real time to feel right. Try not to use this occasion as a good excuse to break in uncomfortable new footwear.

Right Before the Speech

You’ve made it to the day! Let’s make sure you’re prepared.

Here is a quick checklist of what you need to cover the day you present — but before you start talking.

Know the Room

Some people will advise that you see a room the day before (or even earlier) to get a feel for how your presentation will work. If possible, do this! If not, arrive early enough to spend a few minutes before you talk looking around the room. It’s always useful to see the views (especially of the screen if there is a PowerPoint) from multiple locations.

Double-Check the Tech

Make sure the technology you are planning on using is working, not frozen, and ready to go. You shouldn’t do this during your speech. Check the tech before you’re introduced. 

Know the Audience

If possible, look at the list of attendees before you go on stage. You may know someone in the audience who has insight into one aspect of your presentation. Talk to them before presenting to make sure it’s okay to single them out for a question or comment.

Bring Water

Never assume the host will provide water or other beverages during your presentation. You need to have this in case your throat gets dry.

Being an Effective Speaker/Presenter

And when it’s time to speak, how can you wow the crowd? Here are some tips to help you be the best speaker you can be.

Run it by Someone

You don’t need to find a colleague for this. In fact, the more removed someone is from the actual audience you will be delivering your message to, the better. Frankness and honesty cut across all fields, so it’s productive to test out your story on your significant other, your friend, or colleague.

Have them repeat back what you told them. Did what they say sound like what you said or wanted them to hear? If not, you need to sharpen and clarify your content.

Ask them if you seemed nervous, if they believed what you said, and if they were distracted by what you said or how you said it. Use these comments to focus your rehearsals.

Most people speed up when they get in front of a crowd. It’s often a combination of nerves and enthusiasm. Younger attorneys can be particularly susceptible to talking too fast.

This issue is exacerbated when you read from a prepared text. In CLEs, for example, cold text happens when you want to read a quote from a case or a part of a regulation. Try to slow down when you hit cold text.

Consider also writing SLOW DOWN across the top of your presentation outline to remind you to watch your speed continually.

Every type of audience craves genuineness from a speaker. When seeking to communicate or persuade, a speaker must ensure that the presentation is as genuine as possible. That means that you connect and engage with your audience by informing, entertaining, or inspiring them.

The more focused a speaker is on the topic—both its emotional and factual components—the more accepting the audience is.

Not every presentation is in person. In fact, more and more are done online, which have their own advantages and challenges. 

In a webinar, your audience is online. The webinar usually features a slideshow and may show the speaker in a tiny box above or below the screen. 

Your preparation for and presentation of webinars should differ from that of a live presentation. Even if you’ve given a lot of live presentations and you feel comfortable giving them, it’s not much help in getting you ready for this type of a recorded presentation.

Get Ready to Not See Faces

To start preparing, find out exactly what the audience will see. Some webinars don’t show the speaker at all, just the slides. Others show you only from the neck up. Knowing this will help you decide how to present.

Since you won’t have a physical audience, you’ll lack the immediate feedback that presenting live provides. With an in-person presentation, you can see the faces of the audience. You can sense if they are bored or excited or if they’re able to follow what you are saying. None of this works in a webinar.

With a webinar, you’re the only person who controls the emotions for the entire presentation. Even if live questions are emailed mid-presentation, they will likely only ask about specific points and not really get at the tone of your presentation or give you a sense of whether you are connecting with your audience.

Practice Your Webinar Many Times

The first step in making the presentation effective is to practice it extensively in advance. Lack of webinar preparation is almost impossible to cover up with a charming on-screen persona. Where you might be able to breeze through an in-person CLE by being charming and connecting with your audience — in a webinar, you’ll just look unprepared. 

Preparation is even more important if your presentation will be available long-term in an on-demand format. Your lack of preparation might be visible for years. Practicing the presentation multiple times is a bare necessity.

A Good Example to Follow: News Anchors

With a webinar, a good goal should be to make your presentation more like a persuasive news anchor. Here are four keys:

Use Your Visual Aids, But Don’t Read Them Out Loud

Just like an in-person presentation, using a slide show is fine as long as you don’t read the words on the slides. The slides are there to give your readers something to focus on while they are listening to you. They can complement what you are saying as well. If you want to give a full case citation, feel free to put it in a slide. Just don’t read it verbatim.

You’re Better Off With a Script Then Ad-libbing

With a live presentation, it’s a bad idea to read from a script. You can appear robotic and uninterested. But with a webinar, it’s better to read verbatim from a page than to be underprepared.

This is especially true if the audience can’t see you or your image is so small that it doesn’t matter that you’re reading from a page. As long as you practice the presentation enough, an entirely written presentation can be an effective approach to a webinar.

However, you need to sound like you’re not just reading. Watching a professional news anchor will show you how. You need to pause occasionally, with different lengths of pauses for effect. It’s also useful to modulate your voice when asking a rhetorical question or punching a key point. Avoid a monotonous delivery and plan for a key point roughly every five minutes.

Timing is Everything

If you promise your audience a ninety-minute presentation, you owe them ninety minutes. You should assume there will be no questions. 

As with in-person presentations, you should follow the ten-minute rule and break your presentation into several ten-minute blocks. Timing your practice presentations in advance should tell you if you have enough material. Keep in mind that most people go at least ten percent faster in the actual presentation than they do in their rehearsals.

Audience Questions? Trust Your Assistant

With most live webinars, the audience can email questions as the presentation is being recorded. Talk to whoever will be helping before your presentation about how to deal with these questions.

Watch enough webinars, and you’ll notice speakers are easily distracted by the mere possibility of an emailed question. It’s their only real audience interaction, and some will simply stop their presentation and bluntly ask, “Is that a question?” This can derail the rhythm of the presentation.

Trust that the person getting the questions will know whether they should pass them on to you or not. Some questions have already been answered by the time they reach you so they should be disregarded.

Some are nonsensical or even mini-presentations that may not relate to your topic. Some are merely technical questions about watching the webinar. Trust that your assistant will be able to tell the difference between a good question and one that isn’t.

Don’t Dwell on What Your Audience is Doing While They’re Watching Your Presentation

Webinars fundamentally require the audience to be on their honor. But we all know that some people are probably multi-tasking while watching these online presentations. Some may be checking emails or reviewing a brief while they are watching. Some may be at home, still wearing their pajamas. Some may be working out on an elliptical.

It doesn’t do you any good to try to compete with any of these possibilities. The best you can do is create and deliver a professional presentation and expect that your audience will recognize at the start of the presentation that it’s worth watching. If you convince them early, you’ll hopefully have their attention for the rest of the presentation.

For every presentation you plan to give, make sure you have a solid plan to promote the event before and after.

Marketing Channels 

Here are some marketing channels you should consider:

Social media. Create a Facebook Page or Facebook Event for the presentation  List the presentation on LinkedIn Events . Send notices to your Twitter community and create a specific hashtag that people can use to follow along. Create a short promotional video and post it on YouTube.

Advertising with associations and law blogs that serve your target audience. The ratio of sales per impressions will probably be low, but you’ll also be building relationships, recognition, and trust.

Mail and email. The old-fashioned way is still effective in getting the word out to a target audience. This will take some analysis and evaluation besides just purchasing large email lists.

Should You Pay to Present?

Many CLEs and events do not pay speakers. The exceptions are (sometimes) nationally-known speakers, experts in a particular field with significant recognition, and keynote speakers at conferences.

Most other speaking gigs, including your typical bar association CLEs, do not pay the speakers. Some organizations, however, actually ask speakers to pay to present.

One reason providers charge speakers is that they get access to a fresh audience. The host is selling the speaking opportunity as a way to try out your sales pitch while facing an audience full of potential clients and referral sources. If you ultimately get a few paying clients, that could make the price of speaking worthwhile. Where speaking is viewed as an advertisement for your business, a speaker’s fee may seem reasonable.

At the same time, the idea of paying for a speaking gig is a bit offensive, especially when the host is already profiting from attendees. The audience gets information and potentially CLE credits. The speaker just gets a bill.

If you are the type of speaker that leverages presentations to get new business, paying to speak may be worth it. But after a cost-benefit analysis, you might want to look elsewhere.

Regardless, go after speaking opportunities. Not only are you establishing yourself as an expert in your field, but you’re also getting your name, firm, and brand out there. It’s worth it.

And hey – you’re not alone. This is exactly what we cover in our coaching communities . Want some extra help? Set up a time to learn more.

Stephanie Everett

About the Author

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Website: https://lawyerist.com/about/stephanie-everett/

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Last updated October 7th, 2022

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Communication for Lawyers: How to Be Memorable & Achieve Speech Goals

• June 9, 2021

The legal profession demands excellence in communication. In litigation, of course. But it’s also critical to business development and success in every other practice area too. There are client pitches and updates, CLE presentations, other industry and community events, and more. For all these settings, here are some quick tips to be memorable, influential and achieve speaking goals.

1. Prepare like we used to early in our legal career, for moot court or any other time healthy “fear” motivated us to action. After years of law practice, confidence in our speech skills grows. That’s great, but it also makes winging things extremely attractive. We probably get by. But is it good? Is it the best we can do for our clients?

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2. Wrap up, sooner. It can be difficult to land the plane when speaking. Remember to trust ourselves (we conveyed the point), trust the audience (e.g., the judge understood it), and then sit down. No one respects a rambler.

3. Be specific, especially in a pitch for new business. Potential clients are unlikely to simply “catch our drift.” They are too busy thinking about the day’s next 12 meetings. We must therefore cover with specificity how we are best positioned to help them and then make an explicit ask for business that details next steps. This is critical because specific requests are what force people into thinking. Maybe they still say “no,” but at least we’re in the game.

4. More structure. When presented with information that is all over the place, the brain’s primary goal is to “order it.” This gets in the way of being able to really listen, hear the words, reflect on the message substantively. It’s also really annoying. Do that work for the audience. If an audience knows where we are headed and the turns make sense, they can sit back, take it all in, and enjoy the ride.

5. Stay conversational and ditch the script (usually). Except in the rare cases where the precision of each word is vital, a good presentation is more akin to a “purposeful conversation.” We know exactly where it should go, but we never take the audience there like a robot reciting prayer. Prepare with purpose, then go with the flow. Remain humble enough to adapt as necessary yet confident enough to keep pressing our goals.

6. Consider asking for less. Good persuasion often is incremental, especially when we seek to establish a new business relationship, change minds on thorny issues, or seek big action. Maybe “less” is the better ask right now, for more later.

7. Edit it way down, then again. We know this in writing, and it’s even more important in oral communication. Clients, industry colleagues, even judges, they are a lot like hostages that want to go, no matter how into you they are. We all appreciate concise speakers because they demonstrate respect for our time. Concise also reads as confident, credible. Plus, too much information is an invitation for the listener to tune out. Our best points risk getting lost.

8. Two fundamental questions for visual aids: do we need it, can they see it? Be selective for maximum impact and remember audiences hate being shown things they can’t see!

9. Be the you that’s most like them. Except for other lawyers, most do not find us very relatable. People have an easier time listening to, believing, and following people to whom they feel similar. We can usually switch up our dress, vibe, minor things to create more of that similarity with clients, and most other audiences. But never at the risk of authenticity, dignity, personal comfort level.

10. If they aren’t critical to our goals, ignore the one ‘jerk’ in every audience scowling at us, arms crossed. Don’t believe whatever message we think they are sending, and the rotten attitude probably has nothing to do with us anyway. Give all our focus and energy to the people who matter and the vast majority of good people who will give us a fair shot.

11. Address “the other side” and likely objections. We do this in court because we must, but it also matters in client pitches, industry talks, most any other speaking. Volunteering a perspective against our interest boosts credibility. It also enables us to control the narrative and have a chance to refute opposing views. This is far better than leaving any gap or open question, which is almost always decided against a speaker’s interest. Finally, an objection not addressed is an objection not overcome.

12. Transition more sharply than in writing. A presentation is not an essay; for example, there are no paragraph indentations. Over clear transitions are therefore critical to help an audience follow along. There’s a bonus too: sharp transitions wake the audience up. When they can tell we are moving on, most who hated our first idea will tune back in for a minute to see our next trick. Maybe we get them back!

13. All settings will neither allow nor warrant it, but we should strive to be unique where possible, like at industry or community events. Audiences are bored and distracted before we even begin. If something has been done or heard a gazillion times, we shouldn’t bother. None of us are entirely novel and most topics aren’t either, but with some effort the thrust, angle, style can be.

14. In the end, the end matters. How we conclude a presentation may determine our success, and whether we will be remembered and if so, for what. More than content matters. Maintain energy until the last word, the conviction in our client’s position, the passion for our topic. This final display of confidence can seal the matter in our favor. Conversely, no matter what happened or how we feel, never slink off defeated unless we are trying to be remembered as a Slinky.

Tim Giordano

Timothy K. Giordano, Esq. has been active in private practice and the business of law since 2002. He also teaches in the School of Communication and Media at Montclair State University.

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How to Talk Like a Lawyer in Court: Expert Tips for Legal Communication

How to talk like a lawyer in court.

As a lawyer, way speak court significant impact outcome case. It`s crucial to communicate in a manner that conveys professionalism, confidence, and command of the legal language. This post, delve art speaking lawyer court, explore key strategies help master skill.

Importance Speaking Lawyer

When presenting a case or arguing a point in court, the way you articulate your arguments can sway the judge or jury in your favor. Speaking like a lawyer demonstrates your expertise and authority in the legal field, which can enhance your credibility and persuade others to see your perspective.

Strategies Talking Lawyer

Here essential strategies speaking lawyer court:

Case Studies

Let`s take a look at some case studies of lawyers who excelled in their courtroom communication:

Case Study 1: Smith v. Jones

In case Smith v. Jones, the plaintiff`s attorney effectively used legal terminology to argue their case, ultimately winning a favorable verdict for their client.

Case Study 2: Brown v. Board of Education

In landmark case Brown v. Board of Education, Thurgood Marshall`s eloquent and persuasive speech in front of the Supreme Court played a pivotal role in the decision to desegregate schools.

Mastering the art of speaking like a lawyer in court is a valuable skill that can significantly impact the outcome of legal proceedings. By using legal terminology, being clear and concise, projecting confidence, and maintaining professionalism, you can effectively communicate your arguments and persuade others to see your perspective.

Professional Legal Contract: How to Talk Like a Lawyer in Court

It is important for legal professionals to be proficient in legal jargon and language when speaking in court. This contract outlines the necessary guidelines for effectively communicating like a lawyer in a court setting.

How to Talk Like a Lawyer in Court – 10 Popular Legal Questions and Answers

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The Beginner’s guide to the closing speech

I have no way of knowing how important closing speeches are. I know of no research that even begins to throw light on whether they make the slightest difference to the outcome of a trial, or whether, by the time for speeches has arrived, juries or magistrates have usually made up their minds.

So most of what I am going to say is not based on solid evidence.

Nevertheless my feeling, and one that is probably shared by most advocates, is that the closing speech is one of the most crucial parts of the case. It is where you have the chance to marshal your arguments; to make the points explicitly that previously had only been implicit in your questions; and, just asimportant, to deal with the points made by the other side.

Visual Aids

It is surprising how little impact technology has made in most court-room speeches. There are some cases in which counsel operate clever computer gimmickry but they remain the exception, usually for very complicated or serious cases, and not the rule.

The ghastly paraphernalia of the “presentation” – Powerpoint, interactive whiteboards and bullet point projections of what the speaker is about to say – have, I am glad to say, made no impact at all. This is probably because such aids actually distract from what the speaker is saying.

That is not to say that a few well chosen props cannot be quite effective. Nothing beats the drama of handling Exhibit 1, the blood-stained knife, and drama makes a jury listen. I was once fortunate enough to be led by Nigel Pascoe QC – who knows more about both advocacy and theatre than anyone – in a baby shaking case. Although he could not produce a baby for his closing speech, he did the next best thing by producing a realistic doll which he then proceeded to manhandle in a vivid demonstration of how a parent should not behave with a crying baby.

But with or without props, only two things define how persuasive your speech is: what you say and how you say it.

Different types of closing speech .

There is of course an important difference between a closing speech for the defence and one for the prosecution. As a rule the defence will be trying to ask difficult questions, while the prosecution will be trying to provide irrefutable answers.

There are also differences between both the technique and the procedure in a Magistrates Court (where generally speaking the prosecution does not make a closing speech) to that in the Crown Court. (where it usually does).

So here are some hints for advocates who have not had much experience. Many of them are, of course, of equal relevance to prosecutors and defenders. But in general the  focus will be on representing the defence.

Preparation for the speech starts when the jury panel comes into court

I don’t mean by this that you need to have started to write a speech before the trial starts, although you should, of course, have a strategy and the beginnings of a plan for how you would like to address the jury at the end.

What I do mean is that when you stand up to make your final effort to persuade the jury you must be somebody that they will pay attention to. They don’t have to like you – it is a good thing if they do – but if they don’t take you seriously, and especially if they don’t trust you, there is no way that you will be able to persuade them of anything.

So whenever the jury is in court, and preferably of course even when they are not, you must be sensible, reasonable and straightforward . It is also a great help to be polite. Amongst contemporary politicians few have generated as much vitriol from his opponents as the Education Secretary Michael Gove. Watch the way he deals with it: he is scrupulously polite to all, no matter how rude they are to him. You may or may not approve of his policies but you should copy the way his good manners disarm the fiercest opposition.

Dress properly .

A grey and scruffy collar and a rumpled pair of bands creates a very bad impression; as though you can’t be bothered.

On the other hand a battered and balding wig is better than a new white one; It makes the wearer look more experienced.

If you are defending, make a good note of the prosecution opening speech . It is surprising how often prosecutors say something in their opening speech which turns out to be flatly contradicted when the evidence is called. When that happens, what better way to highlight the fact than by quoting from the opening speech in your closing address to the jury?

When you make a mistake, admit it straight away.

When you have taken a bad point, concede it.

When your opponent makes a good point, acknowledge it.

Do not insult witnesses.

Do not interrupt or be rude to your opponent or the judge. Not only does this make for far more pleasant atmosphere in court, it also makes you seem more serious, sensible and therefore authoritative.

Many jurors will have seen American court-room dramas, some may even have watched American court TV (for legal nerds, like`me and probably you if you have read this far, it can make for very enjoyable viewing). They may, as a result, be expecting all sorts of shouts of “Objection!” and “Strike that from the record!” and probably a judge furiously hammering his gavel as grandstanding attorneys approach the bench. To start with they will be disappointed when they see that that is not really the way we do things.

But jumping up and down and yelling “objection!” is definitely not the way to impress jurors. This does not mean you have to roll over and concede every point: if something is important then of course you will have to contest it. If you are angry for good reason, as occasionally you may be, show it. But do so politely and never lose your temper. Genuine anger will be all the more effective for being deployed sparingly and only when it is actually appropriate.

Try to keep an eye on how the jury are reacting as the trial continues. It is usually very difficult to “read” a jury, but sometimes it is obvious that a particular witness, or a piece of evidence has struck home.

Some advocates have a way of cross-examining witnesses while not looking at them at all, just at the jury. The idea is that you keep in touch with the jurors – they see your face and you see theirs. But to my mind it smacks of rudeness to the witness. You are asking him questions so you should at least pay him the courtesy of attending to his answers. If the focus of your attention appears to be on the jury it gives the impression that you are putting on a show instead of seriously listening to the evidence. To put it bluntly, it can make you look like a slimy lawyer.

Put yourself in the jury retiring room. Whose arguments are going to carry more weight: those of the slimy lawyer or those of a sensible and straightforward lawyer?

Never, ever misquote the evidence

Nothing will lower your credibility with the jury more quickly and more certainly.

It goes without saying that you will not do so deliberately. But in the heat of battle wishful thinking can sometimes play tricks with ones memory. It is easy to miss the crucial word, or worse still, to imagine that something was said when it was not. Before you take a point based on what a witness has said you must be absolutely sure that you are quoting the evidence correctly.

For this reason it is essential that, if it is possible you keep, or at least have somebody behind you keeping, a good note of the evidence. Some advocates are reluctant ever to make a note, but unless you have a remarkable memory you should not be one of them.

Many beginners might think – why bother with notes? After all everything is recorded. And so it is (including, these days, conversations between counsel while the judge is out of court, so be careful what you say, unless you want a Gordon Brown style embarrassment don’t call the judge a “stupid bigoted woman” in the court-room: wait until you reach the robing room); but for practical purposes you will not be able to access the recording except occasionally to check on some particularly important disputed evidence.

You cannot expect to note everything that is said, but with practice you should be able to get the most important bits down, except of course when you are on your feet yourself. If you have no-one behind you to take a note of your cross-examination then, if you have made some progress, as soon as you sit down make a note of at least the most important answers that you received.

Should I write my speech out?

Beginners often worry about this and opinions differ. There is no right answer. My opinion is that in general you should .

Sometimes, of course, – and it is one reason why advocacy in front of the Magistrates can be much harder than in the Crown Court – there is simply no time to prepare a closing speech. You call your client, he cuts a miserable figure in the witness box; and it’s “Yes Miss Bloggins?”. Off you have to go and do the best you can.

But usually you do have at least an hour or so to prepare the speech. It is almost always time well spent.

To deliver a closing speech extempore is not easy. There are those who can do it well, and they can make exceptionally good advocates. Their speeches are likely to be lively, spontaneous and convincing, and the lack of any writing will leave the advocate free to connect with the jury. Think, for example, of Boris Johnson’s speech at the end of the 2012 Olympics. It had all the hallmarks of being beautifully unprepared and was as a result hilarious, joyful and perfectly pitched to the occasion. But only he could have done it. Nobody else could have emulated Boris’s apparently bumbling ramblings and carried the audience with them.

And in fact even bumbling Boris may not have been as unprepared as he seemed.   If you watch the speech carefully you will see that he appears to be looking at notes of some sort as he speaks.

There are some criminal advocates who can do something similar but they are invariably individuals with their own inimitable styles. You are almost certainly not one of them.

There are plenty who think they can do it but cannot. Nothing is achieved by rambling on about the burden of proof and drifting aimlessly over a few bits of evidence. You will lose your audience. Remember that unlike a theatre audience they haven’t chosen to come and watch you, they have been forced to do so. They can’t get up and leave, nor can they usually heckle (although occasionally, and very disconcertingly, they write notes and pass them to the usher as you are speaking). Once they get bored with you their main way of showing their displeasure is to give their support to the other side. You will know if you have lost a jury’s attention. It will sit sullenly silent, not smiling, not frowning, just staring vacantly. You will have the devil’s own job to get them listening to you again.

So don’t be afraid of writing out copious notes, or even of writing the whole thing verbatim. Juries don’t mind if you use notes.

Churchill used to do it. In fact he would spend hours changing a word here, a paragraph there and would even practise out loud until he was satisfied.

Nelson Mandela’s famous speech in the Rivonia treason trial (strictly speaking it was an unsworn statement from the dock) was written out more or less verbatim, and fortunately his notes have been kept for posterity so we know that he always intended to end with this magnificent, courageous peroration:

During my lifetime I have dedicated myself to this struggle of the African people. I have fought against white domination, and I have fought against black domination. I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die.

Margaret Thatcher was writing her conference speech at 2.45 a.m. when the Brighton bomb exploded. She re-wrote it and delivered it later that day.

There have been many other great political orators and very seldom do they simply stand up and speak. Their speeches have almost invariably been painstakingly written, often over several drafts. And many, many first rate advocates routinely write and re-write their closing speeches.

Remember, though, that you are writing a speech not an essay. Keep your sentences short and your points – as far as you are able – reasonably simple. There is nothing worse than constructing an argument that might be perfectly good on paper, which is too complicated to explain to a jury. You will get lost, the jury will get lost and your client will pay dearly for your mistake.

If you have written down what you want to say you will at least have a structure and argument of sorts, and this will make it far less likely that you will lose your direction.

However, it is one thing to write it: it is another thing altogether to read it. You absolutely must not do that . Nor should you try to memorise it: you don’t have time, and even if you did a speech recited from memory is unlikely to work very well. You will sound like a ham actor delivering a soliloquy.

The point of writing the speech is rather different. You will find that the act of committing it to paper, or even to a computer screen sparks thoughts in a way that does not happen when you simply stand up and speak. Arguments present themselves, connections suddenly make sense. You can check the evidence to ensure you do not misrepresent it. If you are lucky useful turns of phrase and helpful analogies will occur to you.

All this will be of enormous assistance when you actually address the jury. If you have written it down you will know exactly where you are going and soon you will find that you seldom need to look down at your notes at all. You almost certainly won’t say exactly what you wrote down. That doesn’t matter a hoot. In fact it probably means you will sound more natural; it is easy to write something down that sounds awkward when spoken out loud. But the fact that you have written it will be a comfort. You will know that if – and it happens to almost everyone – you somehow get lost or forget where you are going you can glance down and get yourself back on track.

What do I do with my notes?

You need them to hand, but the typical court room desk or table in front of counsels’ row is far too low for most people to be able to read their notes easily when they are standing up. So you will have to prop them up with something if you are going to be able to use them. Different advocates favour variously a pile of lever arch files, an empty cardboard box or a couple of Archbolds.

Of course a lectern would be ideal but a ridiculous etiquette has it that only silks are allowed to use lecterns. As a result at many courts they are not even supplied, and at the more conservative venues you, as a mere junior, will face stern judicial disapproval if you try to use one. A notable exception is Guildford Crown Court where the legacy of a popular local barrister Frank Gillibrand has been used to purchase lecterns for every court-room. Silks are rare birds in Guildford and the lecterns are gratefully used by all.

In neighbouring Winchester a well-intentioned designer incorporated them into the structure of the 1970s court-rooms, Unfortunately, he was not a very good designer, or at least not very good at designing lecterns, and they are so awkward to use that you are almost better off without them.

What is the best time of day for my speech?

The answer is, as with so many things in advocacy not at all clear. My view is that 10.30 in the morning is usually the ideal time.

There are those who prefer last thing in the afternoon. The theory is that jurors then leave the building with your arguments ringing in their ears and reverberating around their cerebella all night long. I disagree. When jurors are tired or bored they want to go home, or start their weekends; they don’t want to listen to you. And unless they listen it does not matter how good your arguments are, they will be in vain. Most advocates would do a great deal to avoid having to address a jury on a Friday afternoon. The advantage of having the last word before a weekend is far outweighed by the fact that the jury will subconsciously resent you for delaying its start.

So the sensible advocate will generally try to ensure that his or her speech is heard first thing in the morning. Not only is that when the majority of people are most alert, it also gives you the evening before and, if necessary, the morning before to prepare your speech.

Of course whether you can speak in the morning all depends on the evidence and the flow of the trial, but there are ways of improving your chances.

You can, of course simply ask:

The traditional way is to say, perhaps disingenuously:

“ I could do my speech now, but I suspect be that it will be considerably shorter if I could have a little time to focus it on the main issues .”

There is no reason why a well prepared speech is necessarily shorter than an unprepared one. In fact the opposite is often the case, so this sounds a little insincere.

So it is better to be blunt:

“ I would like a little time to sharpen my thoughts. I wonder whether Your Honour would be prepared to rise a little early this afternoon, and perhaps make the time up by starting half an hour early tomorrow morning? ”

It would be a harsh judge who rejects such a reasonable request.

But harsh judges do exist. Such a judge will almost certainly have started sitting half an hour earlier than usual anyway. These days they are all under constant pressure to cut delay and get through their lists as fast as possible. From the point of view of the public, and indeed other litigants that may be desirable. But you do not represent the public or other litigants, you represent the defendant: you certainly do not want to cut corners if the result is that your client is even slightly more likely to go to gaol.

If you have the misfortune to appear before one of these troublesome Ministry of Justice enforcers, do not allow yourself to be bullied.

A good way of dealing with such a judge is to time your legal submissions carefully. There are few cases in which there is not some sort of discussion about the law at some point between the end of the evidence and the judge’s summing up. Indeed, the Court of Appeal strongly encourages the practice. Even if the law seems to you entirely straightforward you need to be sure that the judge thinks so too. Maybe he has missed something, maybe you have. Anyway it can get boring sitting on the bench just observing the trial. Some judges are delighted to be given a chance to play a bigger part by wrestling with a legal issue.

So you are always entitled to make legal submissions, and half past three in the afternoon, after all the evidence has been called, is a very good time to make them. By the time the jury has been sent out and a check-list of directions sorted out it should be getting on for 4 o’clock, even if there isn’t much to argue about.

Perhaps there is time for the prosecution to make a speech then, but probably not for the defence too. That, in fact, might be the perfect outcome from a defence point of view.

The Defence Closing Speech in the Crown Court

Your simple objective is to raise at least one fundamental doubt about the prosecution case.

If that is done then it will be impossible to be sure of your client’s guilt and you will be acquitted.

Broadly speaking defence arguments fall into four categories.

First, and probably most common, are those cases where the prosecution witnesses’ reliability is challenged; typically, perhaps an identification issue, or a self-defence case turning on “who threw the first punch.”

Secondly: cases where the witnesses’ honesty is challenged. Historic sex cases, for example, often leave little scope for mistake or misunderstanding: one or other party must be lying.

Thirdly: cases which depend upon disputed expert evidence . An example might be a “baby battering” case where, relying upon evidence of broken ribs, bruises and brain damage the prosecution experts assert that a baby must have been shaken, even though no-one has seen it happening.

Finally cases where the prosecution evidence is accepted but the prosecutor’s interpretation of the evidence is disputed: for example a conspiracy to supply drugs where the telephone and observation evidence is agreed, and the argument is over whether it does in fact prove a conspiracy.

Of course these categories overlap a lot. A drugs conspiracy, for example, may involve surveillance officers who are mistaken in their observations, a “supergrass” lying to save his own skin, forensic scientists making mistakes in an analysis of drug residues on bank notes and a prosecutor drawing unwarranted conclusions from the telephone evidence.

In other cases, perhaps particularly street or pub fights, it may be possible to argue that the witnesses are either unreliable or dishonest.

But identifying which type of case you are dealing with should help you to concentrate your fire where it is needed. In a sex case, for example, if the dispute is whether the incident took place at all the issue is almost certainly honesty. If so, there is no point in wasting time demonstrating that perhaps the complainant was unreliable on some of the surrounding details.

“ Members of the jury this woman couldn’t even remember if the defendant was wearing a red top or a blue top? ”

It invites, in fact demands the response:

“ So what? If that’s your best argument we’re against you. ”

How long should my speech be?

As so often, Churchill was right. “ A good speech should be like a woman’s skirt: long enough to cover the subject and short enough to create interest .”

Typically, in a 3 – 5 day trial this means 30 to 45 minutes; if the trial has lasted a couple of weeks then perhaps up to an hour.

What should I say?

The most important part of your speech is that which deals with the burden and standard of proof. You simply cannot take it for granted. And given its importance you should usually deal with it near the beginning of the speech; and at the end; and in the middle.

Don’t forget that being “sure” means the same as being “sure beyond reasonable doubt”. The latter is a well-known phrase with a solemn ring to it and I rather like it. One does not want to make too much of the analogy but the difference is rather akin to that between the poetic language of the Authorised Version and the more prosaic words of the New English Bible.

Unfortunately, once you have addressed ten or twenty juries on the subject of the standard of proof, it can get rather boring and mechanical. It is impossible every time to think up a new way of saying much the same thing. On the other hand, remember that what may bore you, just because you have said it all before, will not necessarily be boring to the jury.

I am regularly heartened by the seriousness with which juries take their task. Many will remember the superficially foolish sounding questions asked by the jury in Vicky Pryce’s first trial for perverting the course of justice. One of the questions it asked was “ what is reasonable doubt ?” The jurors were widely castigated for asking such an apparently stupid question: but plenty of our senior judges over the years have proved themselves equally baffled by it.

The answer, according to the trial judge Mr Justice Sweeney, is that a reasonable doubt is “a doubt which is reasonable.” That was a very straight answer. Other judges have attempted more detailed elucidation, usually by saying what it does not mean. It does not mean proof “beyond a shadow of a doubt ” 1 Nor does it does it mean “ a doubt for which you could give reasons…. ” 2 On the other hand it might mean “ the sort of doubt that might affect the mind of a person in dealing with matters of importance in his own affairs .” 3 So the jury’s question was not actually stupid at all; it simply revealed that the jurors were quite properly agonising over the meaning of a phrase, something that is, indeed, difficult to pin down. It is hardly surprising that they asked for help.

So, what do you say to the jury about the need to be sure before convicting?

As judges have found, it is much easier to define what being “sure” is not than to say what it is. For this reason many advocates give some such explanation as this:

“Being sure does not mean you saying to yourself: “I think he did it”, or “he probably did it”, or even “I’m almost sure he did it.” If the prosecution have made you almost sure then they have not proved the case to the high standard that the law requires. If there is a possibility that you could be mistaken then you are not sure, and the proper verdict is one of not guilty.”

To some extent the way you pitch this part of the speech depends on how strong the case against you is.

If it seems a very strong case then the standard of proof is probably one of your only points. You can afford to devote quite a lot of your speech to it.

On the other hand, if you have plenty of other good points to make they can seem a little devalued if you stress the burden of proof too much. There is always the danger that a jury will think:

“ Why is he going on about the burden of proof? It must be because all the evidence supports the prosecution and he is hasn’t got anything better to say. ”

Of course, if you haven’t got anything better to say, then so be it. But it is remarkable how in most cases good defence points do tend to emerge as the case plays out.

Generally speaking it is best to concentrate your fire on attacking the main prosecution points rather than trying to shore up your own witnesses. It is not, after all, your job to prove a case but to show that the prosecution case is unsafe.

Make sure you are realistic in what you say. If you take silly points the jury will think you are silly.

If you have followed my advice the jury will regard you as a straightforward, honest and sensible person. They rightly expect you to articulate the defence answer to the best prosecution points. So identify the best prosecution points and answer them as best you can.

All the best speeches have a central backbone, a spinal column to ensure that the speech stands up: the witnesses have motives to lie, the witnesses were drunk, the witnesses all contradict each other. The possibilities are endless but if you can build your speech around a theme of this sort it will be far easier to follow.

Of course exactly how you structure your speech is up to you. It will vary from case to case. But a good pattern is this:

State your argument early on.

Illustrate the argument with examples from the evidence.

Conclude by stating it again.

Make it easy for the jury to return the verdict you want

This is a principle that you should bear in mind throughout your speech.

Let me give an example: your client alleges a vast police conspiracy to convict him of assaulting his neighbour, after a dispute over noise from a drunken party. He may even be right; fact can indeed be stranger than fiction. Nevertheless, it is exceedingly improbable. The jury will consider it far more likely that both parties were drunk and lost their tempers. If your speech leaves the jury with the idea that a not guilty verdict depends upon the existence of a police conspiracy, your client will love the speech but will be convicted. On the other hand if you suggest a more mundane explanation in which both parties are as bad as each other so that you cannot be sure who is telling the truth, that will be much easier for the jurors to agree on. Your client may not enjoy the speech, but he will like it when he is acquitted.

But do be careful about being rude about your client in your closing speech. Sometimes it may be in his best interests to describe him in unflattering terms, but if you are going to do so it is always tactful to tell him first and if possible obtain his agreement. Once they have heard the evidence many defendants will surprisingly often be happy to agree that they are stupid, drunk or even nasty individuals. The jury do not have to like the defendant to acquit him and if he is thoroughly unlikeable then it is better to face the fact rather than deny it and look like an idiot.   Tell the jury that the fact that he’s nasty does not mean that the evidence proves his guilt.

Generally speaking the points that you must get over to the jury are:

The presumption of innocence means that the defendant is not guilty. You should find him guilty only if the prosecution evidence is so overwhelming that it allows of no other explanation.

The standard of proof is such that a “not guilty” verdict does not mean that the complainant is lying. You may in fact be “almost sure” that she is telling the truth, but that would still require a verdict of not guilty. On the other hand in most cases a “guilty” verdict cannot be returned unless you are sure that the defendant was lying.

It is much easier for a jury to accept that a witness is mistaken than that he is deliberately lying. Don’t allege that a witness is dishonest if his unreliability is equally explicable by an honest mistake.

A similar principle may well apply to the defendant’s evidence as well, but in reverse. Unless you are sure that he is lying, he is not guilty. Only if you are sure that he is lying must you find him guilty.

Cases can be laughed out of court. But it takes the right case and a very special advocate to achieve that. It also helps to have an interfering judge or a galumphing nincompoop for an opponent. Such a happy concatenation of circumstances comes together almost as rarely as a total solar eclipse.

A little gentle teasing of your opponent can be fine, but be careful you do not appear as a sort of David Cameron style smoothie-chops, mocking a less polished colleague. This is of course a special danger for those – and they do exist in the legal profession – who already have a tendency towards smoothie-chops snootiness.

And there are some types of cases in which humour should never, or hardly ever, be attempted. Homicides, most sex cases and serious assaults need to be taken seriously and to be seen to be taken seriously. As a rule, if someone cracks jokes during such a trial no-one laughs and the joker looks like a fool. 

This mistake was made in his opening address by Don West, defense attorney for George Zimmerman the Florida Neighbourhood Watch representative on trial for shooting dead Trayvon Martin, a harmless teenager walking through his gated community.  The case excited huge controversy.  As reported by Richard Luscombe in The Guardian

“West began his opening statement with a joke, poking fun at the two weeks of jury selection that delved deeply into what prospective panel members knew of the case. “Knock, knock,” he said. “Who’s there? George Zimmerman. George Zimmerman who? Good, you’re on the jury.”

There was little reaction in the courtroom and West acknowledged that his joke had fallen flat.”

Nevertheless, West went on to win the case but it was in spite of, not because of his sense of humour.

On the other hand in less serious or emotive cases humour can be a very powerful weapon. No-one can teach you to be funny, least of all me, but if you can make the jury laugh with you, they will often happily do most of what you ask. If the case allows it then you should try to make the jury at least smile once or twice. It won’t win you the case on its own but it will help.

Most comedians will tell you their best jokes are often the result of careful preparation: this is just as true for jokes in your closing speech.

Seriousness

It is, of course, much easier to be serious than to be funny, and fortunately juries appreciate a proper seriousness too. There is much to be said for emphasising the importance of the jury’s role and reminding them of how seriously they should take their task. Although one reads the occasional horror story about how a jury has arrived at a verdict through a ouija-board and so on, my experience is that most do seem to approach their solemn task with great care.

Sometimes you will need to take a jury through a complex argument. Don’t worry, they will follow it as long as they are listening. Tell them it is important, tell them that they need to concentrate and do not patronise them. They will listen.

It is a serious issue but you are not allowed to comment on what punishment may be meted out on the defendant if he is convicted.

1 Miller v. Minister of Pensions [1947] 2 All E.R. 372

2 R v. Stafford & Luvaglio 53 Cr.App.R. 1

3 Walters v. R. [1969] 2 A.C. 26

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17 thoughts on “the beginner’s guide to the closing speech”.

I am Law school beginner but after reading these hints i really feel like i have already have an advantage. Very well compiled details which were easy to understand and a great network of ‘legal words’ were used which i had the dictionary interpret for me. So i also added quiet a few extra words into my poor vocabulary. Well Done Matthew!

Thanks Ozy. Best of luck when you finally get to appear in court. You’ll find it terrifying, but the first time you do a good cross-examination or closing speech you’ll be hooked. Nothing like it.

Amazing! So very grateful for this article.

I cⲟuld not resist commenting. Exceptionally well written!

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I found this very interesting. As a young man, I was a law student, but hearing loss led me to switch to journalism and photography. That’s how I earned my living – freelance. In middle age, I became a Town Councillor and, in my village, became a ‘one man citizens advice bureaux.’ I took on several benefit appeal tribunals and then several cases in the small claims track of the County Court. Like all Advocates, I won some and lost some. I found the District Judges to be very kind and considerate. As far as my CAB was concerned, nothing fazed me. I take The Times and enjoy the law reports. My only case in the Magistrates concerned a mother of three children who could not afford to renew the TV licence. Instead of unplugging the thing and putting it in a cupboard out of the way, she foolishly allowed her brood and their pals to continue watching it. The licence people came round, peered in the window and knocked. Caught. In the MC she was fined £400 + £120 costs. Allowed to pay at £20 a week, but after a few months the payments lapsed. She received a nasty letter from the Clerk to the Justices warning her that she faced imprisonment the next day at court. She came to me on the Monday night in tears. She had been advised by a friend to concoct a ‘cock and bull’ story about an uncle being I’ll, etc. No, I said, and got my typewriter out. She had a £20 to take to court the next morning and I wrote her a submission. I mentioned the ‘cock and bull ‘ advice and wrote that she was ignoring this and had come to court to say how very sorry she was for not realising the seriousness of her situation. At a certain point in her (read) submission, I had told her to raise her arm with the £20 note. They were very kind. She was warned of the consequences of further default and allowed to resume paying £20 weekly provided she paid her £20 note into the cash office downstairs after the hearing was over. There was no separate penalty and no costs. I was really pleased.

An excellent story. You should have been a barrister anyway. There are some deaf barristers I believe, and plenty of hard of hearing judges who tell witnesses to speak up.

I am a law student and after reading this helpful legal information, I find it really helpful for me as a future lawyer.

Really good just needed some help with a class project

I have been on my feet for 8 years and I found this piece both extremely helpful and enlightening. Thank you so much. I look forward to incorporating its elements in my next closing speech (this Tuesday coming)

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I’m doing some research for a novel and would ask in what order final summations are presented, would the plaintiff’s or accused counsel go first. Assuming a criminal case. If you can help I would be most grateful. Steve.

In a criminal case the order is normally as follows:

Prosecution opening speech Prosecution evidence Defence opening speech (only if defence are calling some evidence other than defendant & often not done anyway) Defence evidence Prosecution closing speech Defence closing speech Judge’s summing up.

The procedure varies a bit in the Magistrates Court, and if the defendant is not legally represented, when the prosecution don’t get a closing speech.

Hi! just wanted to drop by with a huge thank you for this wonderful blog. I have a mooting oral assessment quite soon and this has made me think not only of some new enlightening tips (that have truly changed my thinking and attitude to various points) but for the future as well, thank you for sharing your experience!

Hope you are staying safe and well.

Thanks Alejandra, I’m not sure if the blog will be much help in a moot, but do your research, be polite and try to answer not evade the judge’s questions and you should do well. Good luck!

Steven Oldfield Do you feel that a Prosecutor who refuses to repeat his lies by declining a closing speech and a Judge, who then includes the Prosecution speech within his summation, is something the Appeal Court should be concerned about when the Judge also falsifies the Trial Transcripts to conceal what constituted a corrupt Trial having taken place?

Without knowing all the details I wouldn’t like to comment.

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The Limits of Professional Speech

abstract. Professional speech is different from other types of speech. When professionals speak to their clients to give professional advice within the confines of a professional-client relationship, the law constrains what they may say in many ways. Professionals who give bad advice are subject to malpractice liability, and the First Amendment provides no defense; this creates liability for some forms of “false speech,” unknown in other areas of speech. Professionals have fiduciary duties to their clients; such duties between speakers do not exist elsewhere in First Amendment doctrine. And the state may require professionals to obtain a license before they dispense advice; a similar requirement outside the context of a professional-client relationship would likely be an impermissible prior restraint.

But professional speech can only bear the weight of these doctrinal peculiarities if it is narrowly defined. The definition of professional speech should not be expanded beyond the doctrine’s purpose: ensuring that clients receive accurate, comprehensive, and reliable advice in accordance with the insights of the relevant knowledge community. This Essay examines the limits of professional speech through the lens of NIFLA v. Becerra , a recent Supreme Court case that struck down compelled disclosure requirements at “crisis pregnancy centers” as a violation of the First Amendment.

Introduction

Earlier this summer, the Supreme Court announced its decision in National Institute of Family & Life Advocates v. Becerra ( NIFLA ), 1 a case that involved the regulation of speech at crisis pregnancy centers (CPCs). CPCs provide antiabortion counseling behind a façade of reproductive healthcare and often deceive prospective clients by appearing to be typical healthcare providers. 2 In response to these deceptive practices, California enacted the Reproductive Freedom, Accountability, Comprehensive Care and Transparency Act (FACT Act), requiring CPCs to post certain disclosures. 3 The statute regulated both licensed and unlicensed facilities. It required licensed pregnancy-counseling facilities to “ disseminate a notice stating the existence of publicly-funded family-planning services, including contraception and abortion. ” 4 It also required unlicensed facilities to “ disseminate a notice stating that they are not licensed by the State of California. ” 5 NIFLA involved a First Amendment challenge to these disclosure requirements. 6

NIFLA reached the Supreme Court on writ of certiorari from the Ninth Circuit. 7 The Ninth Circuit had upheld the FACT Act on the theory that the disclosures were professional speech. But in doing so, the Ninth Circuit introduced more uncertainty into the unsettled doctrine of professional speech. 8

Upon review, the Supreme Court reversed and remanded the Ninth Circuit’s de cision, striking down the disclosure requirements as a violation of the First Amendment. In so doing, the Court not only rejected the professional speech analysis offered by the Ninth Circuit — it also was suspicious of professional speech as a category of s peech. While the Court noted that it had previously permitted compelled disclosures in certain contexts and had allowed regulations of professional conduct that incidentally burdened speech, it held that the required disclosures for unlicensed facilities w ere “unjustified and unduly burdensome.” 9 As to the disclosure requirement for licensed facilities, the Court found that, as currently written, the FACT Act wa s “wildly underinclusive.” 10

The Court, however, left open the possibility that a better justified or less burdensome disclosure requirement may pass constitutional muster. 11 The dissent, authored by Justice Breyer, likewise did not rely on professional speech doctrine. Instead, the dissent analyzed whether the disclosures were unjustified 12 and analogized the disclosure requirements to those the Court has previously held did not present an undue burden to accessing abortion services. 13

By improperly classifying the disclosure requirements as professional speech, the Ninth Circuit decision has generated confusion about the definition of professional speech. Scholarship on CPCs properly focused on the compelled speech dimension, 14 and neither the petitioner ’ s 15 nor the respondents ’ 16 brief in NIFLA relied on a theory of professional speech. But the government ’ s brief 17 and amici on both sides 18 nonetheless addressed professional speech. Professional speech also loomed in the background of press commentary on the case. 19 During oral argument, moreover, Justice Alito asked the Principal Deputy Solicitor General about the government ’ s position on professional speech. 20 And Justice Thomas’s majority opinion devotes a substantial discussion to professional speech before ultimately deciding the case on other grounds. 21 These discussions suggest that there remains considerable uncertainty about the definition of professional speech.

But despite the Court’s insistence that it has never recognized professional speech as a category, 22 professional speech is distinct. It is treated differently under the First Amendment than other types of speech, and the Court’s majority opinion, without further analysis, readily accepts this doctrinal reality. 23 Unlike other speakers, professionals are constrained in many ways in what they may say. Most importantly, bad professional advice—that is, advice inconsistent with the range of knowledge accepted by the relevant knowledge community—is subject to malpractice liability, and the First Amendment provides no defense. 24 Moreover, the doctrine of content neutrality, despite newly introduced ambiguity, 25 is incompatible with professional speech. 26 Content neutrality ordinarily requires the regulation of speech to be neutral as to its “ communicative content, ” since content-based regulations of speech “ are presumptively unconstitutional. ” 27 But the regulation of professional speech, in order to achieve its aim, cannot be content-neutral; indeed, the value of professional advice depends on its content. 28 Nor does the otherwise applicable doctrine of prior restraint prevent states from imposing licensing requirements on professionals before they may dispense advice. 29 These qualities suggest that, descriptively, professional speech is a type of speech doctrinally distinct from others.

But professional speech can only bear the weight of these doctrinal peculiarities if it is narrowly defined. Expanding professional speech beyond its proper limits would dangerously untie professional speech doctrine from its purpose. The law constrains professional speech to ensure that clients and patients can receive accurate, comprehensive, and reliable advice in accordance with the insights of the relevant knowledge community. This focus on professional expertise is crucial for determining what counts as professional speech. In short, not everything that is said by a licensed professional or within a licensed facility is professional speech.

In classifying the CPC disclosures as professional speech, the Ninth Circuit defined professional speech too broadly. The content of the disclosures in NIFLA was too far removed from expert knowledge to be properly attributed to the realm of professional expertise. The disclosures dealt with publicly funded reproductive healthcare and state licensing, regulatory frameworks that are not themselves subject to expert knowledge. Unlike the Ninth Circuit, the Supreme Court correctly determined that the CPC disclosures were not professional speech. But the Court ’ s majority opinion is incoherent in its insistence that professional speech is not an identifiably distinct type of speech. Despite the Court ’ s assertion that professional speech is not a new and separate category of speech, it acknowledged that this type of speech is doctrinally distinctive. This results in theoretical incoherence: professional speech cannot logically be the same as other speech, yet be governed by a different doctrinal framework.

This Essay proceeds in three Parts. Part I introduces the contours of professional speech and the importance of narrowly defining it. Only if theory and doctrine are closely aligned can professional speech achieve its distinctive goal: providing the client or patient with reliable, accurate, and comprehensive advice in accordance with the insights of the relevant knowledge community. Part II turns to the Ninth Circuit ’ s application of professional speech doctrine in NIFLA . Part III then highlights why the CPC disclosures should not be treated as professional speech.

Ultimately, the Ninth Circuit should not have analyzed the disclosures as professional speech, and the Supreme Court rightly rejected the analytical framework of professional speech with respect to them. But confusion about the definition of professional speech persists. I agree with the Supreme Court ’ s analysis that the required disclosures in NIFLA are not professional speech. Rather, the disclosures are properly analyzed under the compelled speech doctrine of Zauderer v. Office of Disciplinary Counsel . 30 But it does not follow that professional speech is not doctrinally distinctive. In the wake of NIFLA , the definition of professional speech must be limited to match the doctrine’s purpose.

I. defining professional speech

Professional speech is a unique type of speech that occurs within the professional-client (or doctor-patient) relationship. 31 As a descriptive matter, it may not be entirely accurate to consider whether professional speech is a new category of speech. Rather, identifying professional speech as distinct merely acknowledges a specific set of doctrinal features that we have traditionally assumed apply to speech between professionals and clients. In prior cases, the Supreme Court has, at least implicitly, shared that assumption. 32 Even in rejecting the notion that professional speech is a distinct category in NIFLA , the Supreme Court in fact recognized that the law has long treated professional speech differently. For instance, the majority, without further explanation, assumes malpractice liability and informed consent to be constitutional under the First Amendment. 33

Professional speech allows clients and patients to receive accurate, comprehensive, and reliable advice in accordance with the insights of the relevant knowledge community. To ensure that this goal is met, the First Amendment treats professional speech differently from other types of speech in at least four key realms: professional licensing, fiduciary duties, informed consent, and malpractice liability.

Professional licensing establishes a minimum educational basis for admission into a profession. Although sometimes criticized for its economic objective in limiting access to the professions, 34 licensing also serves the traditional purpose of ensuring the health and safety of patients. 35 Licensing regimes are state laws enacted under the states’ police powers. 36 The values underlying the First Amendment and professional licensing align in protecting the client’s or patient’s interest in receiving advice from a qualified professional. Once licensed, professionals are subject to professional discipline . 37 The idea behind a self-regulated profession, moreover, is that members of the profession are best situated to evaluate whether their peers meet the community’s professional standard. 38

Fiduciary duties address the knowledge asymmetries between professionals and their clients or patients, creating duties of loyalty and care. The patient, for example, entrusts the doctor with providing guidance regarding their health decisions. In return, the doctor must act in the patient’s best interests according to the knowledge of the profession. 39 Thus, professional speech is unlike speech in public discourse, where fiduciary duties between speakers ordinarily do not exist. 40

Informed consent also responds to knowledge asymmetries between doctors and patients, ensuring that the interest in patient autonomy is protected. In order to make informed choices, the patient—with whom the ultimate decision rests—must be aware of the range of options. “Patients lack the medical expertise necessary to make informed decisions on their own”; hence, “the law requires physicians to disclose material information to patients as part of the decision making process.” 41 Thus, “informed consent requires the health care provider to explicate the medical risks, benefits, and alternatives to the procedure.” 42 Imposing an informed consent regime falls within the state’s regulatory power, but its content ought to be determined by the profession with the goal of ensuring “its quality for the purposes of patient well-being.” 43 Consequently, informed consent is also part of the medical profession’s code of ethics. 44 In order to serve its purpose, informed consent must be designed in such a way as to accurately communicate the medical profession’s knowledge. 45 In the end, then, the informed consent requirement and professional speech protection should be regarded as aligned in their underlying values.

Malpractice liability rests on the premise that only good professional advice, as measured by the standards of the relevant knowledge community, is protected. 46 Bad professional advice is subject to tort liability, and the First Amendment provides no defense. 47 Professional speech is thus unlike speech in other areas of the First Amendment, where tort liability for perpetuating “false ideas” does not exist. 48 But because knowledge communities are not monolithic, there is usually more than one answer that could count as good advice. Tort law takes this into account through its “two schools of thought” or “respectable minority” doctrines, allowing for diverse views to count as defensible knowledge. 49

Professional speech , as explained throughout this Essay, communicates a knowledge community’s insights to the client or patient. 50 Viewed from the perspective of permissible state regulation, then, the First Amendment allows regulation that ensures that the client or patient receives good advice from the professional. Professional speech protection can be justified by all standard First Amendment theories—autonomy interests of the speaker and listener, marketplace interests, and democratic self-government interests—though these justifications apply differently than in other speech contexts. 51 For instance, whereas the autonomy interest in other speech contexts is usually only that of the speaker, the autonomy interests in the professional-client context include both (1) the decisional interest of the client or patient, who needs the profession’s advice in order to make important life decisions; and (2) the autonomy interest of the professional to advise their client or patient in accordance with the insights of their professional knowledge community.

The distinction between regulating the professions and regulating professional speech is reflected in the shared allocation of regulatory authority between the state and the professions. On the one hand, the authority to regulate professional licensing rests in the states ’ police powers to protect the health, safety, and welfare of citizens. On the other hand, the learned professions are traditionally self-regulated. For instance, whereas the state creates a regime of malpractice liability, the regime ’ s benchmark for finding malpractice is set by the profession. This interplay of state regulation and professional self-regulation traces claims to expertise. And expertise makes professional speech different from other types of speech.

Professional licensing, fiduciary duties, informed consent, and malpractice liability all impose permissible limits on the content of professional advice. 52 Impermissible forms of state regulation, on the other hand, undermine the integrity of professional advice. Thus, the First Amendment provides a shield against legislative activity that contradicts professional knowledge, as courts have recognized in a variety of contexts, including gun safety, conversion therapy, compelled ultrasounds, and medical marijuana. 53 Though these federal appellate courts decisions differ in their doctrinal approaches, the value to be protected—the integrity of the professional-client relationship—is the same.

II. the ninth circuit and professional speech

Although the Ninth Circuit—unlike the Supreme Court—properly recognized professional speech as a distinct category, the Ninth Circuit defined professional speech too broadly. The definition of professional speech has great normative significance. The professional-client relationship can only be served if clients and patients receive accurate, reliable, and comprehensive advice in accordance with the insights of the relevant knowledge community. By classifying the CPC disclosures as professional speech, the Ninth Circuit inappropriately expanded the doctrine beyond its underlying purpose.

The Ninth Circuit has relied on a professional speech framework to analyze several cases, and other federal courts of appeals have adopted the Ninth Circuit ’ s reasoning. 54 The Ninth Circuit was right to uphold the disclosures in NIFLA , but by framing the analysis in part in professional speech terms, it did so for the wrong reasons. In fashioning its approach to professional speech, the Ninth Circuit entrenched theoretical inaccuracies into the doctrine. 55 These inaccuracies inappropriately blurred the line between regulating professional speech and regulating the professions.

The Ninth Circuit recognized that the state has an interest in regulating both licensed and unlicensed CPCs. These interests include conveying information about available medical services in licensed facilities 56 and informing women about the lack of licensing in unlicensed facilities. 57 Moreover, given the legislature’s findings of deceptive practices, suggesting that CPCs “often present misleading information to women about reproductive medical services,” the state’s “interest in presenting accurate information about the licensing status of individual clinics is particularly compelling.” 58 The required disclosures inform women “that the clinic they are trusting with their well-being is not subject to the traditional regulations that oversee those professionals who are licensed by the state.” 59 But these state interests point in the direction of regulating the delivery of services rather than the content of professional advice.

The Ninth Circuit defined professional speech as “speech that occurs between professionals and clients in the context of their professional relationship.” 60 Thus, according to the court, a disclosure is professional speech as long as it “occurs within the confines of a professional’s practice.” 61 From this, the court reasoned that “[b]ecause licensed clinics offer medical services in a professional context, the speech within their walls related to their professional services is professional speech.” 62 In the court’s view, any speech that occurs within a licensed facility is professional speech, regardless of whether it is communicated by a doctor or nurse or is instead merely displayed in the waiting area. 63 But this broad understanding eliminates the knowledge community’s expertise from the definition of professional speech.

III. the mismatch between cpc disclosures and professional speech

The CPC disclosures should not have been analyzed under the professional speech doctrine; indeed, all nine Supreme Court Justices in NIFLA agreed on this point. I suggest that the Ninth Circuit ’ s misapplication of professional speech doctrine and the Supreme Court ’ s subsequent misunderstanding of professional speech more broadly has two primary, partially overlapping sources: (1) an erroneous conception of the CPC disclosures as professional speech, and (2) an inaccurate understanding of the interplay between professional speech and professional licensing. I examine both in turn.

A. The CPC Disclosures Are Not Professional Speech

The Ninth Circuit ’ s NIFLA decision defined professional speech too broadly. Whereas the court held that any speech that occurs within a licensed facility is professional speech, 64 professional speech should be defined more narrowly—as speech that communicates a knowledge community ’ s insights from a professional to a client, within a professional-client relationship, for the purpose of giving professional advice. 65 If speech does not fall within that definition, it should not be considered professional speech. The focus ought to be on the content of the message communicated. The First Amendment should shield professional speech from state interference that seeks to prescribe or alter its content in a way that contradicts professional knowledge. 66

It is important to recognize the limits of professional speech and understand its relation to malpractice liability: “ Protection and liability are best conceptualized as two sides of the same coin, and the substantive content of both is determined by the knowledge community. ” 67 In Pickup v. Brown , the case in which the Ninth Circuit most comprehensively articulated its understanding of professional speech in upholding the California conversion therapy law against a First Amendment challenge, the court itself noted the connection between professional speech and malpractice liability, stating that “ doctors are routinely held liable for giving negligent medical advice to their patients, without serious suggestion that the First Amendment protects their right to give advice that is not consistent with the accepted standard of care. ” 68 In light of that connection, the expansive view of professional speech in NIFLA is misguided.

Contrast this with the regulatory goals in Zauderer . In Zauderer , the Supreme Court distinguished restrictions on commercial speech from compelled disclosures. 69 The key to understanding the Court ’ s rationale is to recall that its commercial speech doctrine was originally built on listeners ’ interests. 70 Thus, the Court posited: “ Because the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides, ” the “ constitutionally protected interest in not providing any particular factual information in  . . .  advertising is minimal. ” 71 The Court then noted that, “ because disclosure requirements trench much more narrowly on an advertiser ’ s interests than do flat prohibitions on speech, warnings or disclaimers might be appropriately required in order to dissipate the possibility of consumer confusion or deception. ” 72 Consequently, such regulations are only subject to rational basis review. 73

Justice Breyer ’ s NIFLA dissent reiterates this understanding of Zauderer and connects it to professional regulation more broadly. Justice Breyer explains that the reason why commercial speech is protected in the first place is to give information to consumers. 74 Thus, a professional ’ s interest in withholding information is minimal, and this is not limited to advertisements about the professional ’ s own services. 75 Doctors, for example, are subject to a wide range of disclosure requirements. 76

The interests in professional speech protection and Zauderer -type professional disclosure regulations are related, but not necessarily the same. Professional speech protection—and its counterpart, malpractice liability—are concerned with the accuracy of the content of the advice. The emphasis, in other words, is on professional expertise. Regulating professionals ’ advertising and demanding compelled disclosures, in contrast, merely prevents professionals from deceiving clients and patients about the types of service they offer. 77 In response to Justice Alito ’ s question at oral argument in NIFLA , the Principal Deputy Solicitor General rightly characterized the CPC disclosures as “ a disclosure about what you ’ re doing. ” 78 The Ninth Circuit in NIFLA misses this distinction by conflating “ the clinics ’ speech in the context of medical treatment, counseling, [and] advertising. ” 79

As “ a disclosure about what you ’ re doing, ” Zauderer provides the proper framework to analyze the CPC disclosures. Such disclosures are subject to rational basis review. 80 Despite uncertainty in the lower courts about how broadly Zauderer should be interpreted, 81 the speech at issue in the CPC cases falls squarely within the state ’ s interest in protecting consumers from deceptive advertising. Even a narrow reading of Zauderer suggests that the state may, consistent with the First Amendment, regulate speech to prevent consumer deception. In the CPC context, deception is at the heart of the matter. By contrast, professional speech doctrine concerns the accurate communication of information based on expertise, not preventing deception. Even those who would strike down the FACT Act agree that “ [t]here ’ s nothing particularly ‘ professional, ’ in the sense of ‘ special-knowledge-demanding, ’” in the content of the required disclosures. 82 In short, the professional speech doctrine is the wrong analytical tool to address the disclosures. 83

The Court ’ s majority in NIFLA objects that the CPC disclosures are not technically advertisements if they are displayed inside the facilities and thus that they are outside the scope of Zauderer . But it does not follow that the disclosures instead must be considered professional speech. Imagine a client who enters the facility and, upon reading the disclosure, leaves. At that point, no professional-client relationship had formed, and thus no professional speech could have occurred. In fact, the disclosure prevented the relationship from forming in the first place. Speech regulations that exist prior to the formation of the professional-client relationship ought to be kept separate from those that regulate advice-giving within that relationship once it is formed. 84 Thus, even if one might argue that the CPC disclosures are not technically advertising in the strict sense, the disclosures are still communications that precede the formation of a professional-client relationship. As such, they are more like advertising than professional advice-giving. 85

The Supreme Court rightly recognized that the disclosures are not professional speech. But the majority opinion is incoherent in its resistance to professional speech as a category, and it misses the regulatory goals correctly identified by the dissent. Indeed, the dissent rightly notes that Zauderer is not limited to advertising, and the underlying rationale is the flow of accurate information to the client or patient. 86 This interest, to reiterate, is different from that underlying the protection of professional speech.

B. The Interplay of Professional Speech and Professional Licensing

With respect to the interaction of speech and licensing, the Ninth Circuit in NIFLA missed the important distinction between the regulation of the profession —of which professional licensing is one component—and the regulation of professional speech . 87 While activities within a clinic take place pursuant to a license, not everything that is communicated within a licensed facility is professional speech. 88 Imagine, for example, a janitor at a hospital—a facility subject to licensing requirements—displaying a political button. Imagine further that the state then prohibited such displays. The First Amendment analysis would not hinge on professional speech doctrine at all. Or imagine that your doctor advises you—incompetently, as it turns out—on how to fix your car. It is hardly imaginable that this communication would be subject to professional malpractice liability.

The broader theoretical point is encapsulated in the exchange at oral argument in NIFLA between Justice Alito and the Principal Deputy Solicitor General. Orthogonal to the question raised in the case , the Principal Deputy correctly noted that states may regulate professionals. And although professional speech, commercial speech, and Zauderer -style professional regulation are sometimes lumped together and may share some doctrinal overlap, they are distinct. 89

The difference matters. With respect to licensing, an earlier Ninth Circuit case, Conant v. Walters , held that it is unconstitutional under the First Amendment to revoke a doctor ’ s medical license if the doctor gives advice on the medical benefits of marijuana. 90 From a professional speech perspective, this means that the content of advice is protected 91 and distinct from licensing. Once licensed, the professional must dispense advice that is accurate, comprehensive, and reliable under the standard of the profession. 92 In another Ninth Circuit case, National Association for the Advancement of Psychoanalysis v. California Board of Psychology , the court upheld a California licensing requirement, noting that California did not attempt to “ dictate the content of what is said in therapy. ” 93 Whereas licensing is consistent with the First Amendment, state interference into professional advice-giving that contradicts professional insights is not.

The Ninth Circuit ’ s statement in NIFLA —that “ states have the power to regulate the professions, as well as the power to regulate the speech that occurs within the practice of the profession ” 94 —thus conflates what ought to be kept separate. Similarly, the Supreme Court ’ s opinion in NIFLA incorrectly assumes that the state ’ s licensing decisions give it “ unfettered power to reduce a group ’ s First Amendment rights by simply imposing a licensing requirement. ” 95 A licensed professional ’ s speech is constrained to ensure the client receives accurate, reliable, and comprehensive advice. At the same time, however, the First Amendment protects the content of professional advice from state interference that contradicts professional knowledge. This interplay of professional licensing and professional speech is obscured by the majority ’ s discussion of the dangers of state interference. 96 The dissent, by contrast, correctly understands licensing to be part of the larger regulatory framework governing professionals. 97

Professional speech is rightly considered distinct from other forms of speech. Clients and patients can only make informed decisions if they receive accurate, reliable, and comprehensive advice. To that end, the larger regulatory framework of professional advice-giving supports these values. Outside of this narrowly defined relationship, departure from First Amendment doctrine cannot be justified. Regulation of the professions, however, remains possible. Under the Zauderer regime, deceptive practices may be regulated to protect future clients or patients.

Certain litigants have recently wielded the First Amendment like an all-purpose deregulatory weapon. 98 But the free speech values underlying different forms of speech do permit regulation—consistent with the First Amendment and in a theoretically coherent way—that is designed to further these values. Professional speech ought to be protected against state interference so that professionals can give their clients and patients accurate, reliable, and comprehensive advice that corresponds to the insights of their knowledge community. Professionals ’ fiduciary duties and the professional malpractice regime demand no less. Professional licensing serves the same purpose, namely, to ensure a professional ’ s competence to give good advice to benefit the client or patient.

The First Amendment protects the content of professional speech from state interference that contradicts professional insights, but it does not prohibit the state from regulating professionals. And the Supreme Court ’ s decision in NIFLA is not the end of the professional speech doctrine; 99 it is only the beginning.

Claudia E. Haupt is an Associate Professor of Law and Political Science at Northeastern University School of Law. Many thanks to Jack Balkin, Abbe Gluck, Katie Kraschel, Chip Lupu, Henry Monaghan, Wendy Parmet, Rupali Sharma, Jessica Silbey, Cilla Smith, and participants in the ISP Fellows Workshop at Yale Law School for helpful comments and conversations.

Volume 133’s Emerging Scholar of the Year: Robyn Powell

Announcing the eighth annual student essay competition, announcing the ylj academic summer grants program.

138 S. Ct. 2361 (2018).

See Aziza Ahmed, Informed Decision Making and Abortion: Crisis Pregnancy Centers, Informed Consent, and the First Amendment , 43 J.L. Med. & Ethics 51 (2015); B. Jessie Hill, Casey Meets the Crisis Pregnancy Centers , 43 J.L. Med. & Ethics 59 (2015).

Cal. Health & Safety Code § 123470 (West 2018).

Nat’l Inst. of Family & Life Advocates v. Harris, 839 F.3d 823, 828-29 (9th Cir. 2016), rev’d , sub nom. Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018).

Id. at 829.

Nat’l Inst. of Family & Life Advocates , 138 S. Ct. at 2368.

Nat’l Inst. of Family & Life Advocates , 839 F.3d at 829; see also A Woman’s Friend Pregnancy Res. Clinic v. Harris, 669 F. App’x 495 (9th Cir. 2016), vacated , sub nom. A Woman’s Friend Pregnancy Res. Clinic v. Becerra, No. 16-1146, 2018 WL 3148264 (U.S. June 28, 2018); Livingwell Med. Clinic, Inc. v. Harris, 669 F. App’x 493 (9th Cir. 2016), vacated sub nom. Livingwell Med. Clinic, Inc. v. Becerra, No. 16-1153, 2018 WL 3148265 (U.S. June 28, 2018). Another case primarily raised the free-exercise implications of the FACT Act. See Mountain Right to Life, Inc. v. Becerra, 692 F. App’x 807 (9th Cir. 2017), vacated , No. 17-211, 2018 WL 3148273 (U.S. June 28, 2018).

See Claudia E. Haupt, Professional Speech , 125 Yale L.J. 1238 (2016).

Nat’l Inst. of Family & Life Advocates , 138 S. Ct. at 2377 (quoting Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985)).

Id. at 2375 (quoting Entm’t Merchs. Ass’n v. Brown, 564 U.S. 786, 802 (2011)).

Nat’l Inst. of Family & Life Advocates , 138 S. Ct. at 2378.

Id. at 2386-88, 2389-92 (Breyer, J., dissenting).

Id. at 2384-86.

See, e.g. , Caroline Mala Corbin, Compelled Disclosures , 65 Ala. L. Rev. 1277, 1339 (2014).

Brief for Petitioners, Nat’l Inst. of Family & Life Advocates , 138 S. Ct. 2361 (No. 16-1140).

Brief for State Respondents, Nat’l Inst. of Family & Life Advocates , 138 S. Ct. 2361 (No. 16-1140).

Brief for the United States as Amicus Curiae Supporting Neither Party, Nat’l Inst. of Family & Life Advocates , 138 S. Ct. 2361 (No. 16-1140).

See Brief for the Cato Institute in Support of Petitioners, Nat’l Inst. of Family & Life Advocates , 138 S. Ct. 2361 (No. 16-1140); Planned Parenthood Federation of America & Physicians for Reproductive Health as Amici Curiae Supporting Respondents, Nat’l Inst. of Family & Life Advocates , 138 S. Ct. 2361 (No. 16-1140).

See, e.g. , Linda Greenhouse, When the Truth Is Unconstitutional , N.Y. Times (Dec. 7, 2017), https://www.nytimes.com/2017/12/07/opinion/abortion-supreme-court-speech-california ‌ .html [https://perma.cc/WYB4-VZA8] (discussing professional speech); Robert McNamara & Paul Sherman, The Abortion Case That’s Really About the First Amendment , N.Y. Times (Mar. 20, 2018), https://www.nytimes.com/2018/03/20/opinion/supreme-court-abortion ‌‌ -first ‌ -amendment.html [https://perma.cc/82VA-CJZE] (same).

Transcript of Oral Argument at 34-36, Nat’l Inst. of Family & Life Advocates , 138 S. Ct. 2361 (No. 16-1140).

Nat’l Inst. of Family & Life Advocates , 138 S. Ct. at 2371-75.

Id. at 2372 (majority opinion) (“This Court’s precedents do not recognize such a tradition for a category called ‘professional speech.’”). Some scholars have also argued that professional speech is not a distinct category of speech. See Rodney A. Smolla, Professional Speech and the First Amendment , 119 W. Va. L. Rev . 67 (2016) (arguing against a distinctive approach to professional speech).

Nat’l Inst. of Family & Life Advocates , 138 S. Ct. at 2373 (discussing “[l]ongstanding torts for professional malpractice” and characterizing informed consent as “firmly entrenched in American tort law” (quoting Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261, 269 (1990))).

See Claudia E. Haupt, Unprofessional Advice , 19 U. Pa. J. Const. L. 671, 675 (2017).

Nat’l Inst. of Family & Life Advocates , 138 S. Ct. at 2374-75 (discussing content neutrality).

See Claudia E. Haupt, Professional Speech and the Content-Neutrality Trap , 127 Yale L.J.F. 150 (2016).

Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015).

See Haupt, supra note 26.

See Claudia E. Haupt, Licensing Knowledge , 72 Vand. L. Rev. (forthcoming 2019) (manuscript at 50), https://ssrn.com/abstract=3151985 [https://perma.cc/TE5Z-PVK7] .

471 U.S. 626 (1985) (upholding certain restrictions on attorney advertisements as permissible under the First Amendment).

See Haupt, supra note 8, at 1247.

See id. at 1258-64 (discussing Supreme Court precedent implicitly assuming professional speech to be distinctive).

Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct . 2361, 2373 (2018).

See Dick M. Carpenter II et al., License to Work: A National Study of Burdens from Occupational Licensing , Inst. for Justice ( May 2012 ) , https://ij.org/wp-content/uploads/2015 ‌ /04 ‌ /licensetowork1 ‌ .pdf [https://perma.cc/8VXW-N39T]; Morris M. Kleiner, Reforming Occupational Licensing Policies , Hamilton Project ( March 2015 ) , https://www ‌ .brookings ‌ .edu ‌ /wp ‌ -content/uploads/2016/06 ‌ /THP_KleinerDiscPaper_final ‌ .pdf [https://perma.cc/NY6P -GDKE] .

See Haupt, supra note 29, at 8-9.

See id. at 6.

See generally Nadia N. Sawicki, Character, Competence, and the Principles of Medical Discipline , 13 J. Health Care L. & Pol’y 285 (2010).

See id. at 296.

See Haupt, supra note 29, at 40-47.

Cf. Jack M. Balkin, Information Fiduciaries and the First Amendment , 49 U.C. Davis L. Rev. 1183, 1216-17 (2016).

David Orentlicher , Abortion and Compelled Physician Speech , 43 J.L. Med. & Ethics 9, 9 (2015).

Ahmed, supra note 2, at 52.

See Informed Consent , Am. Med. Ass’n , https://www.ama-assn.org/delivering-care ‌ /informed ‌ -consent [https://perma.cc/83LN-KSYB] .

The informed consent requirement only applies to areas where there is professional knowledge; it does not apply to value judgments. See Haupt, supra note 8, at 1253.

See id. at 1244.

See Robert Post, Informed Consent to Abortion: A First Amendment Analysis of Compelled Physician Speech , 2007 U. Ill. L. Rev. 939, 950-51; see also Haupt, supra note 24, at 675.

Haupt, supra note 24, at 681-82.

See id. at 706.

See id. at 1269-77.

See id. at 1285-89.

See, e.g. , Wollschlaeger v. Governor of Fla., 848 F.3d 1293 (11th Cir. 2017) (holding unconstitutional as violating the First Amendment the recordkeeping, inquiry, and antiharassment provisions—but holding constitutional the antidiscrimination provision—of the Florida Firearms Owners’ Privacy Act); Stuart v. Camnitz, 774 F.3d 238 (4th Cir. 2014) (holding that a mandatory ultrasound law violated the First Amendment); King v. Governor of N.J., 767 F.3d 216 (3d Cir. 2014) (upholding a New Jersey conversion therapy law against a First Amendment challenge); Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014) (upholding a California conversion therapy law against a First Amendment challenge); Conant v. Walters, 309 F.3d 629 (9th Cir. 2002) (upholding a permanent injunction against a revocation of a license to protect the First Amendment rights of doctors advising on medical marijuana).

See Stuart , 774 F.3d at 248 (acknowledging that “ [o]ther circuits have recently relied on the distinction between professional speech and professional conduct when deciding on the appropriate level of scrutiny to apply to regulations of the medical profession” and adopting the same approach).

The court’s misunderstanding of professional speech originated in Pickup v. Brown , 740 F.3d 1208, which upheld California’s law prohibiting licensed mental health providers from engaging in conversion therapy for minors. I have previously criticized the Pickup court’s approach, though it reached the correct result in upholding the conversion therapy law. See Haupt, supra note 8, at 1294-97.

Nat’l Inst. of Family & Life Advocates v. Harris, 839 F.3d 823, 841 (9th Cir. 2016), rev’d sub nom. Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018).

Id. at 843.

Id. at 839.

Id. at 840.

See Haupt, supra note 24, at 673.

See Haupt, supra note 8, at 1285.

740 F.3d 1208, 1228 (9th Cir. 2014).

See Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985).

See Amanda Shanor, The New Lochner, 2016 Wis. L. Rev. 133, 142.

Zauderer , 471 U.S. at 651.

Id. (quoting In re R.M.J., 455 U.S. 191, 201 (1982)).

Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361, 2380 (2018) (Breyer, J., dissenting).

Id . at 2380-81.

Cf. Corbin, supra note 14, at 1349.

Transcript of Oral Argument, supra note 20, at 36.

Nat’l Inst. of Family & Life Advocates v. Harris, 839 F.3d 823, 840 (9th Cir. 2016), rev’d sub nom. Nat’l Inst. of Family & Life Advocates , 138 S. Ct. 2361 (2018).

See Milavetz, Gallop & Milavetz, P.A. v. United States , 559 U.S. 229 (2010).

See Wendy E. Parmet & Jason Smith, Free Speech and Public Health: Unraveling the Commercial-Professional Speech Paradox , 78 Ohio St. L.J. 887, 891 (2017).

See Ilya Shapiro, Symposium: “Hey California, Stop Telling Us What to Say at Work! , ” SCOTUSblog (Dec. 13, 2017), http://www.scotusblog.com/2017/12/symposium-hey-california -stop ‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌ -telling-us-say-work/ [https://perma.cc/2PNJ-6PG5] .

As a matter of doctrine, moreover, if state legislative intervention in the reproductive health context does not directly interfere with professional speech, and thus the First Amendment does not provide a shield, it still must pass the “undue burden” test under Planned Parenthood of Southeastern Pennsylvania v. Casey , 505 U.S. 833 (1992), and Whole Women’s Health v. Hellerstedt , 136 S. Ct. 2292 (2016). Cf. Nat’l Inst. of Family & Life Advocates , 138 S. Ct. at 2384-86 (Breyer, J., dissenting) (applying the framework of Casey as governing the analysis).

See Claudia E. Haupt, Antidiscrimination in the Legal Profession and the First Amendment: A Partial Defense of Model Rule 8.4(g) , 19 U. Pa. J. Const. L. Online 1, 15 (2017).

This understanding does not preclude written professional advice, which may be communicated on signs posted on the wall. For example, patients might understand a sign stating that “smoking is good for you,” displayed at a doctor’s office, to be professional advice.

Nat’l Inst. of Family & Life Advocates , 138 S. Ct. at 2387 (Breyer, J., dissenting).

See Haupt, supra note 8, at 1279-84.

Cf. id. at 1256-57.

Transcript of Oral Argument, supra note 20, at 35-36.

309 F.3d 629 (9th Cir. 2002).

Cf. Haupt, supra note 24, at 721-24.

See id. at 698.

228 F.3d 1043, 1056 (9th Cir. 2000).

Nat’l Inst. of Family & Life Advocates v. Harris, 839 F.3d 823, 839 (9th Cir. 2016), rev’d sub nom. Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018).

Nat’l Inst. of Family & Life Advocates , 138 S. Ct. at 2375.

Id. at 2374-75.

Id. at 2382 (Breyer, J., dissenting).

See generally Robert Post & Amanda Shanor, Adam Smith’s First Amendment , 128 Harv. L. Rev. F. 165 (2015); Shanor , supra note 70.

See Plaintiff’s Reply in Support of Motion for Summary Judgment at 1, Castillo v. Philip, No. 3:17-cv-00722 (N.D. Fla. June 28, 2018) (arguing that “the U.S. Supreme Court . . . definitively rejected [the professional speech] doctrine”).

freedom of speech

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Freedom of speech is the right to speak, write, and share ideas and opinions without facing punishment from the government. The First Amendment protects this right by prohibiting Congress from making laws that would curtail freedom of speech.

Even though freedom of speech is protected from infringement by the government, the government is still free to restrict speech in certain circumstances. Some of these circumstances include:

• Obscenity and Indecency – In Alliance for Community Media v. FCC , the Supreme Court found that obscenity and child pornography have no right to protection from the First Amendment, and as such, the government has the ability to ban this media altogether. But when it comes to indecency, which is generally defined by the courts as something describing or depicting offensive sexual activity, the Supreme Court has found this speech protected. But the government can regulate this speech on radio and television, so long as it’s for a compelling reason and is done in the least restrictive manner. 
• Defamation – Private and public figures are able to sue someone for statements they have made. Public figures must prove that the person made the statement with malice , which means knowing the statement was false or having a reckless disregard for the truth or falsity of the statement. (See  New York Times v. Sullivan ) . Private figures must prove the person failed to act with reasonable care when they made the statement. 
• Incitement – If a person has the intention of inciting the violations of laws that is imminent and likely, while directing this incitement at a person or groups of persons, their speech will not be protected under the First Amendment. This test was created by the Supreme Court in Brandenburg v. Ohio . 
• Fighting words  

While the public has a right to freedom of speech when it comes to the U.S. government, the public does not have this right when it comes to private entities. Companies and private employers are able to regulate speech on their platforms and within their workplace since the First Amendment only applies to the government. This right allowed Facebook, Instagram, and Twitter to ban President Donald Trump from their sites in 2021 without legal repercussion. Companies like Facebook and YouTube were also able to ban misleading information on Covid-19 during the 2020 pandemic.

The Supreme Court recently affirmed that private entities are not restricted by the First Amendment in the case Manhattan Community Access Corporation v. Halleck . Manhattan Neighborhood Network is a nonprofit that was given the authority by New York City to operate public access channels in Manhattan. The organization decided to suspend two of their employees after they received complaints about a film the employees produced. The employees argued that this was a violation of their First Amendment freedom of speech rights because they were being punished due to the content of their film. The Supreme Court held that Manhattan Neighborhood Network was not a government entity or a state actor , so the nonprofit couldn’t be subjected to the First Amendment.

In another case, Nyabwa v. Facebook , the Southern District of Texas also affirmed that private entities are not subject to the First Amendment. There, the plaintiff had a Facebook account, which spoke on President Donald Trump’s business conflicts of interest. Facebook decided to lock the account, so the plaintiff was no longer able to access it. The plaintiff decided to sue Facebook because he believed the company was violating his First Amendment rights. The court dismissed the lawsuit stating that the First Amendment prevents Congress and other government entities from restricting freedom of speech, not private entities. 

[Last updated in June of 2021 by the Wex Definitions Team ] 

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The only reason to give a speech.

“What exactly do you mean, ‘the only reason to give a speech is to change the world?’” That comment greeted me recently from a reader of this blog who was interested in our upcoming conference and wanted to know what she was going to get out of it. My first reaction was to laugh, because generally speaking lofty statements of ambition are not meant to be taken literally – and most adults know that.

But we live in an era of authenticity and rampant BS-detecting, and anyone who makes public claims needs to be ready to defend them. So, on second thought, I delved deeper into the comment, and what lies behind it, because it is important to be real and also because I began my first book with the comment.

The phrase did not, apparently, come from President Kennedy, though many people have suggested that to me with certainty. Of course, it’s difficult to prove a negative, but I’ve scanned the Kennedy canon and found no evidence that he ever wrote, said, or thought the phrase.

It was told to me by a speechwriter and reporter who got his start reporting first hand the D-Day landing in Normandy that heralded the beginning of the end of WWII. I met him when we briefly both worked as speechwriters for the same company, he at the end of his career, me at the beginning of mine. He took me to lunch on a regular basis and regaled me with stories about WWII, getting the facts right, and changing the world. When I got the assignment at the company to write my first speech, one for an executive who was heading to Australia and a public speech about the company’s intentions on that continent, my reporter-mentor said to me, “Don’t screw it up, Nick. You know the only reason to give a speech is to change the world. Make it worth it.”

I met the challenge with a highly ordinary speech about the rosy relations between the US and Australia and the bright prospects for the company and Australian business. No controversies.

And no changing the world. My mentor was kind, and understanding, but I felt like I had let him down, and the speechwriters’ guild, somehow. And so the saying stuck with me, because my first outing had failed.

So how do you change the world with a speech? My contention (and my answer to the inquiry from my skeptical reader) is that a speech has one job and one job only: to change the minds of the people in front of you, your audience. And so your task is to take that audience on a decision-making journey, from Point A (pre-speech) to Point B (post-speech), where Point B is a different state of mind. If you do that successfully, you have changed the world, because you’ve changed the audience’s minds in front of you, and that means the world has changed.

How do you accomplish this feat? By persuading the audience that the point of view you’re proposing is worthy of note, worthy of exchanging for their previous point of view on the subject. By telling the audience something that it doesn’t know already. By inspiring them to think differently, dream differently, and ultimately act differently. Speeches that simply dump information on an unsuspecting audience are a waste of time if their primary purpose is to demonstrate the expertise of the speaking. But a speech that shares the mysteries of a body of knowledge in a way that opens an audience’s minds to new thinking – that’s a speech that changes the world.

That’s the only reason to give a speech. And yes, I do mean something specific by the phrase. I mean that, to change the world, your job as a speaker is to tell your listeners something new, change their thinking on a subject you care about, and inspire them to new action. Isn’t that reason enough to give a speech?

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Hi Nick – thanks for another great post. Here’s how I’ve always explained this concept (which I first heard from you):

Whether speaking to 5 people, 500 or 5000, why would anyone bother to take the time and effort necessary to prepare and deliver a speech unless the goal wasn’t to at least challenge the audience to think and feel differently about the subject matter? And more importantly, why would anyone even bother listening?

However, if you change the way someone thinks and feels about a given topic, you can affect their actions. And if you affect their actions, you can effect change. And after all, isn’t that the only way the world ever changes? When an individual or group of people do things differently than they did before? Whether it’s at work, at home or in the community, a great speech can provide the impetus for action and be the catalyst for change.

Thanks, Martin — great commentary. You’ve got it right — if you’re going to go to the trouble to give a speech, change the world by changing the people in front of you.

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