Monthly Archives: September 2015

The Problem with Problems.

memorySo do you want to know what the problem is with problems? Most people are like an ostrich with its head buried in the sand in fear of what they might see.  We all have a tendency to ignore our problems and procrastinate.  This is fatal thinking or à total lack of thinking.

Instead of waiting until the last second before the trial starts or the evening before your closing argument, look for problems as well as inspiration the first day the case comes into your office.  Continue to hunt for inspiration and problems as the case progresses. Attorneys should not wait until the last moment to prepare their opening statement or closing argument.  This is often too late and provides little time to use your creativity as an attorney and advocate for the client.

I always keep an electronic document with a list of inspirational quotes, analogies and arguments.  I also have a list of potential problems and issues that I need to address as the case progresses through litigation towards trial.  For example, if during the course of my client’s deposition unfavorable evidence arises about my client’s background or character, I make careful note of the same on my list of problems and issues so that I can deal with it at the time of trial.

So how do you deal with such problems?  You may be able to exclude the evidence with a motion limine under Rules of Evidence 403, 404, 405, 608, 609 or 610, 702 or 802.  If the problem can be addressed in jury instructions, research the law and carefully draft a proper instruction to submit to the court address the issue (such as pre-existing conditions).

If neither of these strategies has a chance of success, then I have to figure out a way to discuss the problem upfront and lessen the evidence’s  impact with the jury.  See my article: Direct Examination and Airing Your Dirty Laundry. Most evidence has a double edge to it.  If the other side is engaging in character assignation point out the tactic and explain why the jury is being misdirected from the real issues in your case.   See my article on Distraction, Misdirection and the Art of Verbal Jujitsu.

I will raise such problems during jury selection and find out which of the jurors cannot put the problem aside or deal with it fairly.  if possible, I will get juror to admit that they cannot be a fair and impartial juror and then try to have them removed for cause or use a peremptory challenge to strike the juror from the venire.

I will raise the problem on direct examination and outline any mitigating circumstances favorable to my client and explain how the transgression occurred.   I don’t wait for redirect and give my opponent the first shot at framing the issue.

Honesty, is the best policy in dealing with such problems.   Remember, everyone is human and no one is perfect.   The jury will understand if you do and you don’t run away from the problem.  Just deal with it.   Likewise,  if I receive inspiration for a good argument, analogy or quote,  I will  send myself an e-mail or text message so that I don’t forget it.

So don’t let your problems, be the problem.  Be proactive and creative.  Do not procrastinate and brood.

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Closing Argument – Save Your Zingers for Rebuttal!

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​If you are the plaintiff or the state criminal case, you have the advantage of going last. However, remember that the scope of rebuttal is determined by the issues addressed in the closing argument of opposing counsel. When I was a law clerk right out of school, I saw team of attorneys for plaintiff decide that they would split the closing argument with one of them to discuss liability in the first half of their argument and the second attorney would address the issue of damages in rebuttal.

​The defense, realizing a tactical mistake made by the plaintiffs’ attorneys, chose to limit their argument to liability only and moved in limine to prevent the plaintiff’s attorney from arguing damages in rebuttal. The jury retired, confused as to whether they were supposed to decide only liability or both damages and liability. Ironically, at the end of the day, failure to argue damages did not seem to matter much. In that case the jury returned a record multimillion dollar verdict in a civil case for Lake County, Indiana.

​Don’t make this mistake. You might not be as lucky. See Indiana Jury Rule 27. This Rule provides:
FINAL ARGUMENTS
When the evidence is concluded, the parties may, by agreement in open court, submit the case without argument to the jury.

If the parties argue the case to the jury, the party with the burden of going forward shall open and close the argument. The party which opens the argument must disclose in the opening all the points relied on in the case. If, in the closing, the party which closes refers to any new point or fact not disclosed in the opening, the adverse party has the right to reply to the new point or fact. The adverse party’s reply then closes the argument in the case.
If the party with the burden of going forward declines to open the argument, the adverse party may then argue its case. In criminal cases, if the defense declines to argue its case after the prosecution has made opening argument, then that shall be the only argument allowed in the case.
In criminal cases, the party with the burden of going forward is the prosecution. In civil cases, the party with the burden of going forward is the plaintiff. 

If you know there are points the defense must cover, I would recommend saving some of your best zingers, one-liners or analogies for rebuttal. Your opponent will be silenced, and your statements will not be directly challenged.

​There is nothing more powerful in terms of capturing someone’s attention and imbedding your message in their brain than a good one-liner; or, as I like to call them, a “zinger”. A “zinger” is described as, “a surprising or unusually pointed or telling remark.”

​In today’s modern, fast-paced world, speechwriters and politicians often work on developing that one biting quip or sound bite which will disarm an opponent and grab an audience’s favor. Such comments often seem unscripted even though they were planned out well in advance. Attorneys can use “zingers” as a rhetorical device during cross-examination or in closing argument to drive a point home. “Zingers” are especially effective in rebutting your opponent’s argument. Your source material is everywhere. I urge you to look to quote books, comedians and popular culture for such material. There is even a source entitled “The Complete Book of Zingers“.

​A recent book, The Notes, posthumously published on behalf of President Ronald Reagan, is a collection of quotes and anecdotes that Reagan gathered over his long career as a speaker and politician. He made a concerted effort throughout his life to look for and collect such quotes on index cards.

​President Reagan was the master of the one-liner. Who can forget Reagan’s “There you go again” quip he used to boomerang criticism of his position back at his opponent, President Jimmy Carter during their presidential debate in 1980. See:

​Books containing anthologies of jokes are another source of such material. The master of the “zinger” is Samuel Clemens, more famously remembered as Mark Twain. In dealing with the topic of truthfulness and the use of statistics to bolster a weak argument, Twain observed:

​”There are three kinds of lies: lies, damned lies and statistics.”

​Another way of putting it according to Twain was:

​“Figures don’t lie, but liars figure.”

​Such a statement can quickly and effectively eviscerate an opponent and swings the audience or jury in one’s favor. Cultivate your inner one-liners; you won’t be disappointed and you may just “zing” your opponent the next time you are in court.

​If you are on the defense, I would point out that after you sit down you will not be allowed to speak any further and cannot address the issues raised in rebuttal. You and your client have to trust the jury will scrutinize the arguments of the plaintiff the same way as the arguments of the defense.

Closing Argument – Taking the Wind Out of the Other Side’s Sails before They Leave the Dock

imageIt is important to stick with the argument that you’ve planned out and then aggressively and positively put forward your case. You don’t want to waste too much time responding to the other side’s argument to the detriment of their own. You want to help the jurors reach their own conclusions about the case through the use of rhetorical questions. Give the jury some credit and let them answer the questions you pose. If your rhetorical questions are properly framed, the answer will be obvious.

1. Addressing Your Problems Before the Other Side Does

​Address your own problems before the other side goes on the attack. This allows you the advantage primacy as the jury will hear your arguments first as they mentally work their way through your case. Handle the questions likely to be raised by the defense in a forthright and confident manner. Put forth your best analysis of the evidence in favor of your client.

​2.​ Credibility and Sincerity is Your Greatest Weapon

​State your position with conviction and sincerity. If you exude sincerity, you will gain the trust of the jurors in your analysis of the case. To succeed, your analysis must be an honest one that does not dodge the difficult questions. If you lose your credibility, you lose your ability to persuade.

3. Address Any Weak Points in Your Theory

​You need to anticipate attacks and be ready to address them in a calm and confident fashion so the jury understands that the supposed problems are nothing. You should have laid the groundwork for this in your voir dire of the jury, as well as in your opening statement and the evidence presented.

The Barrister’s Toolbox will hit 50,000 Views today… Now What?

imageToday my blog will have 50,000 views for the over 107 posts I have authored on a number of topics that confronts today’s trial advocate.  My most read topic is about how to handle a deposition errata sheet. I find that quite surprising.  A young attorney from New York called to thank me for the post and followed up with a thank you card.  I still have that card on my desk to remind me why I take the time to blog.

It is nice to give back to the profession and job I love. Back in law school, I knew my goal was to become the best trial attorney and advocate possible.  I have worked on cases involving civil rights, personal injury, product liability, premises liability, defamation, false arrest, medical malpractice, murder, rape, pollution, RICO, wrongful death, mail fraud, gambling, counterfeiting, construction, drug trafficking, pollution, real estate, contract disputes and even a death penalty case.  A few things I take away from all of this is over the last three decades of practice:

  1. Talent is over rated and hard work is under valued.  An average attorney can out work and out hustle       a smarter attorney. Put the time in to do the job right. Always assume your opponent is smarter than you so as too not overlook any key details.
  2. If you get into a new or difficult case don’t be afraid to,ask for help from a more experienced colleague. Your client deserves that much. In fact, join a trial attorney association and participate in it. Seek out mentors… They will help you grow as a professional.
  3. Re beer your reputation and integrity are the most important asset you or your client have, never take a good case and try to make it a great case or you will be left with bad case.
  4. Always continue to learn and hone your skills as a trial attorney.  Otherwise, you will be left behind.
  5. Strive for excellence everyday, but accept the fact that you are only human and will make mistakes and fail from time to time. Embrace your mistakes as your best teachers. The worst mistakes we make are those we repeat. The first sign of insanity is to do the same thing over and over and expect different results.
  6. Take time to enjoy your life outside of the law. You need balance. While the law is a jealous mistress, it does mean your spouse should be a widow and your children orphans.
  7. The judge may not always be right, but the judge is always “the judge”.  Respect the office even if you don’t respect the man who holds the position.
  8. That being said never be afraid to hold firm in your position for a client.  Courage and fortitude are required. Politely make your record as needed and move on to the next topic. Often times a judge will reverse himself, if you make an offer to prove and stand firm.
  9. Finally, remember it costs you nothing to be a gentleman.  Treat everyone with respect you encounter and it will be returned tenfold.

Closing Argument: Begin Strong, End Stronger and Sock It to Them!

As far as I am concerned, when it comes to your closing argument, you want to begin strong and end strong. You are the director, producer and central author of the closing argument. Syd Field is the author of a number of books on screenwriting. His principles have equal application to the formulation of a closing argument. In his book, Screenplay: Foundations of Screenwriting he talks about how important the first 10 minutes (about 10 pages) of your script are. Screeners of scripts will typically look at the first 10 pages of the screenplay and if they don’t like it, they quit reading and toss the script to the trash pile.

​Jurors are not much different. If you haven’t caught their attention in the first few minutes of closing argument, they are probably going to start daydreaming about what they will do once they’re out of the trial. Instead of spending a bunch of time at the beginning of closing thanking jurors or their service, I would recommend grabbing their attention with a snappy introduction while you have their undivided attention. Don’t waste this opportunity with boilerplate pleasantries and thanking the jury for their service.  This comes across as flattery and will seem insincere.  You are better off giving your thanks in the middle of your closing where it will be seen as heartfelt and less forced.  Make sure you end strong as well so you can take advantage of the effects of primacy and recency. You are giving the jury needed inspiration as they retire to the jury room to deliberate.

At the end of his closing arguments before he sat down, renowned trial attorney, Gerry Spence, used the following analogy to drive home the point that his client’s fate was in the hands of the jury :

“I’m going to tell you a simple story, about a wise old man and a smart aleck young boy who wanted to show up the wise old man for a fool. The boy captured [a] little bird. He had the idea he would go to the wise old man with the bird in his hand and say, ‘What have I got in my hand?’ And the old man would say, ‘Well, you have a bird, my son.’ And he would say, ’Wise old man, is the bird alive or is it dead?’ The old man knew if he said,’It is dead,’ the little boy would open his hand and the bird would fly away. If he said, “It is alive,” the boy would take the bird in his hand and crunch the life out of it and then open his hand and say, ’See, it is dead.’ So the boy went up to the wise old man and he said, ’Wise old man, what do I have in my hand?’ The old man said, ’Why, it is a bird.’ He said, ’Wise old man, is it alive or is it dead?’ And the wise old man said, ’The bird is in your hands, my son.’”

So give the jury a memorable closing argument by starting and ending strong.

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