Zen and the Art of Trial Advocacy

“The moon does not fight. It attacks no one. It does not worry. It does not try to crush others. It keeps to its course, but by its very nature, it gently influences. What other body could pull an entire ocean from shore to shore? The moon is faithful to its nature and its power is never diminished.”

~ Deng Ming-Dao

Staying focused and on course in a trial is important.  There are so many things to distract, delay and confuse the jury.  Objections, irrelevant evidence, innuendo directed towards your client or witnesses, judicial pontification and other assorted events distract and confuse jurors.  It is important that you are not one of them.  That is why having an even demeanor and a clear theme for your case is critical.

A case’s value or outcome often turns on the credibility and likeability of you and your client.  If you can remain calm through the ups and downs of a trial, it will not go unnoticed.   Jurors will look to you when a harmful piece of evidence is revealed to see how you react in order to gauge the event’s importance.  You need to impart a Zen like demeanor.  This calms your client and witnesses.  It also sends a subtle message to the jury that everything is going to be alright. 

Staying calm is an important strategy to share with your client and witnesses.  Jurors often gauge how important or critical an line of questioning is by how your client or witness reacts when confronted by your adversary on cross-examination.  The only thing one has absolute control over is their behavior and demeanor. By emphasizing this point with your client and witnesses, you can both empower and relax them.  No matter how rude or aggressive the other attorney is, it’s important for them to remain calm and composed.  By doing so, the examination will typically be shorter.  When an adverse attorney senses he has drawn blood, he will bore in with more of the same.  A client or witness can tactically overcome this by simply remaining calm.  Likewise, the client or witness must  avoid sarcastic, insincere or solicitous remarks.  This is their chance to make a good impression and answer what is asked.  It is not their job is to exchange verbal jabs with the other attorney or “win the case”.  There is an old saying, “If you wrestle with a pig, you’re bound to get dirty.”  Don’t let your client or witness get dirty by wrestling with the other attorney, because ultimately, they will lose.

 A theme is the glue that binds your case.  It draws the jury into your view of the evidence and keeps them there.  A theme is important because it gives you and the jury a clear course to follow and a lens to view the evidence through.  A theme can be as simple as a “man must be true to his word” or “sloppy police work leads to unreliable evidence and  reason to doubt the state’s case.” Have you ever seen a movie that consisted of a lot of “good scenes” but was overall unwatchable?  Why does this happen?  Usually the movie has no clear unifying “plot” to hold all of the “good scenes” together in a coherent fashion.  You as the “director” of your case need to have a clear “plot” or “theme”.  Without a theme the jury gets lost and forgets or misinterprets the evidence.  You want the jury to be looking for ways to fit the evidence into your view of the case, not your opponent’s.  The theme should be presented during juror voir dire, opening statement, direct examination, cross-examination and closing argument.  One of the best ways to do this is to prepare your opening statement well in advance of trial while discovery is still underway.  This will help inform every aspect of your case and preparation.   It will help you evaluate what is needed and what should be left on the cutting room floor. 

Remember Young Weed-Hopper, “If you stay faithful to your case’s true nature, its power will never be diminished”.       

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About Richard A. Cook

Richard Cook graduated from Purdue University in the Economics Honor Program in 1979 and obtained his Juris Doctor degree from Valparaiso University School of Law in 1982. Following law school, Richard served as a federal law clerk in the U.S. District Court for the Northern District of Indiana, Hammond Division. In 1984, Richard began working as Deputy Prosecutor for the Lake County Prosecutor's Office and from there, served as Assistant U. S. Attorney for the Northern District of Indiana, South Bend Division. There he handled a number of complex criminal matters and jury trials. While there, Richard received the Chief Postal Inspector's Special Award and a letter of commendation from the U.S. Attorney General for his work prosecuting a major money order fraud scheme being perpetrated out of the Indiana State Prison system. Since leaving the U.S. Attorney's office in 1989, Richard has focused primarily on civil work and is currently a member of the firm Yosha Cook & Tisch in Indianapolis. Richard is also a member of the ITLA, IBA and the ABA, as well as, a fellow for the American College of Trial Lawyers. He is AV rated by Martindale-Hubbell.

Posted on July 7, 2014, in closing arguments, cross-examination, Jury Selection, Trial Advocacy. Bookmark the permalink. Leave a comment.

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