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  • Fourteen years ago,

  • I stood in the Supreme Court to argue my first case.

  • And it wasn't just any case,

  • it was a case that experts called

  • one of the most important cases the Supreme Court had ever heard.

  • It considered whether Guantanamo was constitutional,

  • and whether the Geneva Conventions applied to the war on terror.

  • It was just a handful of years after the horrific attacks

  • of September 11.

  • The Supreme Court had seven Republican appointees

  • and two Democratic ones,

  • and my client happened to be Osama bin Laden's driver.

  • My opponent was the Solicitor General of the United States,

  • America's top courtroom lawyer.

  • He had argued 35 cases.

  • I wasn't even 35 years old.

  • And to make matters worse,

  • the Senate, for the first time since the Civil War,

  • passed a bill to try and remove the case from the docket of the Supreme Court.

  • Now the speaking coaches say

  • I'm supposed to build tension and not tell you what happens.

  • But the thing is, we won.

  • How?

  • Today, I'm going to talk about how to win an argument,

  • at the Supreme Court or anywhere.

  • The conventional wisdom is that you speak with confidence.

  • That's how you persuade.

  • I think that's wrong.

  • I think confidence is the enemy of persuasion.

  • Persuasion is about empathy,

  • about getting into people's heads.

  • That's what makes TED what it is.

  • It's why you're listening to this talk.

  • You could have read it on the cold page,

  • but you didn't.

  • Same thing with Supreme Court arguments --

  • we write written briefs with cold pages,

  • but we also have an oral argument.

  • We don't just have a system in which the justices write questions

  • and you write answers.

  • Why?

  • Because argument is about interaction.

  • I want to take you behind the scenes to tell you what I did,

  • and how these lessons are generalizable.

  • Not just for winning an argument in court,

  • but for something far more profound.

  • Now obviously, it's going to involve practice,

  • but not just any practice will do.

  • My first practice session for Guantanamo,

  • I flew up to Harvard

  • and had all these legendary professors throwing questions at me.

  • And even though I had read everything, rehearsed a million times,

  • I wasn't persuading anyone.

  • My arguments weren't resonating.

  • I was desperate.

  • I had done everything possible,

  • read every book, rehearsed a million times,

  • and it wasn't going anywhere.

  • So ultimately, I stumbled on this guy --

  • he was an acting coach, he wasn't even a lawyer.

  • He'd never set foot in the Supreme Court.

  • And he came into my office one day wearing a billowy white shirt

  • and a bolo tie,

  • and he looked at me with my folded arms and said,

  • "Look, Neal, I can tell

  • that you don't think this is going to work,

  • but just humor me.

  • Tell me your argument."

  • So I grabbed my legal pad,

  • and I started reading my argument.

  • He said, "What are you doing?"

  • I said, "I'm telling you my argument."

  • He said, "Your argument is a legal pad?"

  • I said, "No, but my argument is on a legal pad."

  • He said, "Neal, look at me.

  • Tell me your argument."

  • And so I did.

  • And instantly, I realized,

  • my points were resonating.

  • I was connecting to another human being.

  • And he could see the smile starting to form

  • as I was saying my words,

  • and he said, "OK, Neal.

  • Now do your argument holding my hand."

  • And I said, "What?"

  • And he said, "Yeah, hold my hand."

  • I was desperate, so I did it.

  • And I realized, "Wow, that's connection.

  • That's the power of how to persuade."

  • And it helped.

  • But truthfully, I still got nervous as the argument date approached.

  • And I knew that even though argument

  • was about getting into someone else's shoes

  • and empathizing,

  • I needed to have a solid core first.

  • So I did something outside of my comfort zone.

  • I wore jewelry -- not just anything,

  • but a bracelet that my father had worn his whole life,

  • until he passed away, just a few months before the argument.

  • I put on a tie

  • that my mom had given me just for the occasion.

  • And I took out my legal pad and wrote my children's names on it,

  • because that's why I was doing this.

  • For them, to leave the country better than I had found it.

  • I got to court, and I was calm.

  • The bracelet, the tie, the children's names

  • had all centered me.

  • Like a rock climber extending beyond the precipice,

  • if you have a solid hold, you can reach out.

  • And because argument is about persuasion,

  • I knew I had to avoid emotion.

  • Displays of emotion fail.

  • It's kind of like writing an email in all bold and all caps.

  • It persuades no one.

  • It's then about you, the speaker,

  • not about the listener or the receiver.

  • Now look, in some settings, the solution is to be emotional.

  • You're arguing with your parents,

  • and you use emotion and it works.

  • Why?

  • Because your parents love you.

  • But Supreme Court justices don't love you.

  • They don't like to think of themselves

  • as the type of people persuaded by emotion.

  • And I reverse engineered that insight too,

  • setting a trap for my opponent to provoke his emotional reaction,

  • so I could be seen as the calm and steady voice of the law.

  • And it worked.

  • And I remember sitting in the courtroom to learn that we had won.

  • That the Guantanamo tribunals were coming down.

  • And I went out onto the courthouse steps and there was a media firestorm.

  • Five hundred cameras, and they're all asking me,

  • "What does the decision mean, what does it say?"

  • Well, the decision was 185 pages long.

  • I hadn't had time to read it, nobody had.

  • But I knew what it meant.

  • And here's what I said on the steps of the Court.

  • "Here's what happened today.

  • You have the lowest of the low --

  • this guy, who was accused of being bin Laden's driver,

  • one of the most horrible men around.

  • And he sued not just anyone,

  • but the nation, indeed, the world's most powerful man,

  • the president of the United States.

  • And he brings it not in some rinky-dink traffic court,

  • but in the highest court of the land,

  • the Supreme Court of the United States ...

  • And he wins.

  • That's something remarkable about this country.

  • In many other countries,

  • this driver would have been shot,

  • just for bringing his case.

  • And more of the point for me, his lawyer would have been shot.

  • But that's what makes America different.

  • What makes America special."

  • Because of that decision,

  • the Geneva conventions apply to the war on terror,

  • which meant the end of ghost prisons worldwide,

  • the end of waterboarding worldwide

  • and an end to those Guantanamo military tribunals.

  • By methodically building the case,

  • and getting into the justices' heads,

  • we were able to quite literally change the world.

  • Sounds easy, right?

  • You can practice a lot,

  • avoid displays of emotion,

  • and you, too, can win any argument.

  • I'm sorry to say, it's not that simple,

  • my strategies aren't foolproof,

  • and while I've won more Supreme Court cases

  • than most anyone,

  • I've also lost a lot too.

  • Indeed, after Donald Trump was elected,

  • I was, constitutionally speaking, terrified.

  • Please understand, this is not about Left versus Right,

  • or anything like that.

  • I'm not here to talk about that.

  • But just a week in to the new president's term,

  • you might remember those scenes at the airports.

  • President Trump had campaigned on a pledge, saying, quote,

  • "I, Donald J. Trump am calling for a complete and total shutdown

  • of all Muslim immigration to the United States."

  • And he also said, quote, "I think Islam hates us."

  • And he made good on that promise,

  • banning immigration from seven countries with overwhelmingly Muslim populations.

  • My legal team and others went into court right away and sued,

  • and got that first travel ban struck down.

  • Trump revised it.

  • We went into court again and got that struck down.

  • He revised it again,

  • and changed it, adding North Korea,

  • because we all know,

  • the United States had a tremendous immigration problem with North Korea.

  • But it did enable his lawyers to go to the Supreme Court and say,

  • "See, this isn't discriminating against Muslims,

  • it includes these other people too."

  • Now I thought we had the killer answer to that.

  • I won't bore you with the details,

  • but the thing is, we lost.

  • Five votes to four.

  • And I was devastated.

  • I was worried my powers of persuasion had waned.

  • And then, two things happened.

  • The first was,

  • I noticed a part of the Supreme Court's travel ban opinion

  • that discussed the Japanese American interment.

  • That was a horrific moment in our history,

  • in which over 100,000 Japanese Americans had been interned in camps.

  • My favorite person to challenge this scheme

  • was Gordon Hirabayashi,

  • a University of Washington student.

  • He turned himself in to the FBI,

  • who said, "Look, you're a first-time offender,

  • you can go home."

  • And Gordon said,

  • "No, I'm a Quaker, I have to resist unjust laws,"

  • and so they arrested him and he was convicted.

  • Gordon's case made it to the Supreme Court.

  • And again, I'm going to do that thing

  • where I quash any sense of anticipation you have,

  • and tell you what happened.

  • Gordon lost.

  • But he lost because of a simple reason.

  • Because the Solicitor General,

  • that top courtroom lawyer for the government,

  • told the Supreme Court

  • that the Japanese American internment was justified by military necessity.

  • And that was so,

  • even though his own staff had discovered

  • that there was no need for the Japanese American interment

  • and that the FBI and the intelligence community

  • all believed that.

  • And indeed, that it was motivated by racial prejudice.

  • His staff begged the Solicitor General,

  • "Tell the truth, don't suppress evidence."

  • What did the Solicitor General do?

  • Nothing.

  • He went in and told the "military necessity" story.

  • And so the Court upheld Gordon Hirabayashi's conviction.

  • And the next year, upheld Fred Korematsu's interment.

  • Now why was I thinking about that?

  • Because nearly 70 years later,

  • I got to hold the same office,

  • Head of the Solicitor General's Office.

  • And I got to set the record straight,

  • explaining that the government had misrepresented the facts

  • in the Japanese interment cases.

  • And when I thought about the Supreme Court's travel ban opinion,

  • I realized something.

  • The Supreme Court, in that opinion,

  • went out of its way to overrule the Korematsu case.

  • Now, not only had the Justice Department said

  • the Japanese interment was wrong,

  • the Supreme Court said so too.

  • That's a crucial lesson about arguments -- timing.

  • All of you, when you're arguing, have that important lever to play.

  • When do you make your argument?

  • You don't just need the right argument,

  • you need the right argument at the right moment.

  • When is it that your audience -- a spouse, a boss, a child --

  • is going to be most receptive?

  • Now look, sometimes, it's totally out of your control.

  • Delay has costs that are too