Introduction
In the turbulent world of courtrooms, where words sometimes act as sharp swords and at other times as sturdy shields, silence can also play a strategic and effective role in defense. Contrary to the common perception that defense is always synonymous with strong arguments and firm positions, in many cases, silence can be a calculated strategy that, with its particular subtlety, shifts the course of a case in favor of the attorney and their clients. This article examines silence in court as one of the key tools in strategic advocacy and demonstrates how an attorney can influence the course of legal proceedings through the judicious use of this technique.
1. Silence as a Defensive Tactic
In the process of defense, speaking excessively may sometimes be unnecessary and may disclose information that could be used against the client. Silence in such circumstances allows the attorney to steer the course of proceedings and avoid revealing information that might harm the case. On the other hand, silence can also serve as a means to highlight the weaknesses in the opponent’s arguments.
As Fatemeh Fallahnejad points out in her article, “The Defensive Rights of the Accused: The Right to Silence and the Prohibition of Self-Incrimination,” the right to silence is not only a fundamental right of the accused but also a defensive strategy for attorneys. An attorney who exercises timely silence provides the opposing party with an opportunity to make ill-considered statements that expose contradictions and reveal the weaknesses of their claims.
Example:
In a criminal case, the defense attorney, after hearing the allegations of the opposing party, refrained from immediate objection and instead remained silent for a few moments. This pause prompted the judge to reflect on the contradictions in the plaintiff’s statements, ultimately leading to the dismissal of some of the claims.
2. The Power of Silence in Confronting the Judge and Jury
A wise attorney understands that the jury and the judge are influenced not only by the volume of arguments presented but also by the manner in which they are delivered. Strategic silences at critical moments can not only arouse curiosity but also create an opportunity to amplify the impact of a crucial point.
As Javad Salehi argues in his article, “Silence: A Manifestation of the Defensive Rights of the Accused in Fair Trials,” attorneys who use silence as a tool to emphasize their positions are generally more successful in persuading the court. This analysis indicates that silence is not only a sign of deep contemplation and the strength of one’s defense but also an effective means of controlling the flow of trial proceedings.
Example:
In a civil case involving a breach of contract, when the judge asked the attorney for their opinion on the opposing party’s claim, the attorney deliberately paused for a few seconds. This brief silence, rather than being perceived as weakness, conveyed confidence and control over the case. It caused the judge to reconsider the arguments presented, shifting the balance in favor of the attorney.
3. Silence in Interrogation and Witness Examination
Silence in dealing with witnesses and opposing parties is also of particular importance. A skilled attorney may use silence to prompt the opposing party into disclosing information that they might not have otherwise revealed.
As highlighted in the article “The Right to Silence of the Accused: Recognition and Management” published in the Journal of Judiciary Law, silence can lead witnesses to experience anxiety and inadvertently disclose unintended statements. In other words, silence is a psychological tool that can either facilitate the revelation of new facts or expose false statements.
Example:
During an interrogation session, the attorney, instead of interrupting the witness, allowed them to continue speaking. After the witness finished, the attorney remained silent for a brief moment without asking any questions. This silence caused the witness to become anxious and spontaneously reveal additional details, ultimately undermining their own testimony.
4. The Balance Between Silence and Speech
While silence can be a powerful tool, its improper use may be detrimental to the case. Therefore, an attorney must strike a balance between moments of silence and moments that require resolute speech.
Nader Divosalar and Ali Najafi Tavana emphasize in their article, “The Foundations of Attorney Independence and the Course of the Right to Defense in Light of Legislative Developments in Iran,” that the intelligent management of courtroom conversations is the most crucial characteristic of a successful attorney. According to their view, silence in certain situations benefits the client, whereas in others, speaking at the right moment can change the trajectory of the case.
Example:
In a family law case, an attorney seeking to engage the emotions of the judge remained silent while the plaintiff’s mother spoke with a trembling voice. Instead of interrupting or objecting, the attorney allowed the emotional atmosphere in the courtroom to peak. Following this, they presented a logical and composed defense, which, due to the strategic silences employed earlier, had a far greater impact on the court.
Conclusion
Silence in court is not a sign of weakness but rather a powerful tool in strategic advocacy. The analyses provided by leading legal scholars indicate that when this technique is used with precision and awareness, it can be a decisive factor in the outcome of a case. An attorney who masters the art of silence can use it to strengthen their arguments, influence the judge and jury, and exert pressure on the opposing party. Like any other tool in advocacy, this skill requires experience, intelligence, and a profound understanding of legal contexts. When applied at the right time and in a calculated manner, silence can become one of the most effective weapons in a strategic attorney’s arsenal, transforming the outcome of a case in an unexpected and successful manner.