Category Archives: closing arguments

The Floor for the Value of a Human Life is Flying High

landscape-1489517504-gettyimages-546992354

 You have a wrongful death claim and need an indisputable source of information to determine the minimum value of a human life.  Wouldn’t it be nice if the federal government published minimum values for the loss of a human life? Well, they have! The U.S. Defense Department has made a conscious decision on this very disputed issue of value.  

The federal government has determined that the minimum value attributable to the loss of one life is $250,000,000 (a quarter of a billion dollars).  How can this be? Where can the supporting information be reviewed?  Well, the F-22 Raptor costs approximately $250 million per jet, replacing the F-15 Eagle which costs $65 million each.

The federal government installs pilot ejector systems on every F-22 Raptor Jet fighter. The government does this to protect the pilot, not the plane.  In order to  save the life of a pilot of a Raptor F-22, the government chooses to sacrifice our most expensive combat jet airplane to insure the pilot lives to fly another day.  The F-22 jet airplane costs $250,000,000 to manufacture.   In spite of this huge cost, the federal government has chosen to install an ejector system to save the pilot’s life even though the ejection of the pilot will result in the certain and immediate loss of a quarter of a billion dollar jet airplane.

How about that…  This analogy was raised some time ago by a trial lawyer by referencing the Eagle F-15.  Well the minimum value for the loss of a human life has just gone up… at least in the eyes of the federal government.

Advertisements

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.

Closing Argument – Save Your Zingers for Rebuttal!

20111004-080040.jpg
​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.

Plotting Your Strategy: Does Your Trial Have a Theme?

PaintingA theme acts as the unifying thread of your case. It is a thing that motivates the jurors to take action. Your theme needs to be integrated into your jury void dire, opening statement, direct and cross-examination, closing argument and jury instructions.

There are number of potential themes. Watch movies and see how things are developed and see what are the best and emotive ones. I have a book that has nothing but quotes from various movies which I try to interject into my closings to highlight the theme and make them more interesting and compelling. For example, a closing argument may dealt with the themes “profits over safety” and “accepting responsibility“. Here is an introduction from one of my closing arguments:

This is an important case. It’s important for a lot of reasons –  as I said at the beginning of this trial, it’s a case about accepting responsibility and in this case Mr. Smith did not accept responsibility. Mr. Smith ignored facts. Mr. Smith ignored laws. Mr. Smith was concerned about one thing and one thing only and that was himself. One of the things that I discussed with you at the very start of voir dire was this idea that we do not allow profits to take priority over safety. There are a lot of good reasons why we have our safety laws, but as I discussed, you have to have laws and you have to make people accept responsibility for the harms and the losses that they have caused, because if you fail to do that there’s absolutely no incentive for someone to be responsible.

​Below is a short list of some themes:

​a.​ Safety – We do not allow profits to take priority over safety.

​b.​ Keeping Promises – A man’s word is bond.

​c.​ Preciousness of Life – As Will Munny put it in the western Unforgiven, “It’s a hell of a thing, killing a man. Take away all he’s got and all he’s ever gonna have.” That is what happened here.

​d.​ David & Goliath – Everyone loves to see the little guy prevail over the big bully whether it be the government or a large corporation.

​e.​ Theft of Innocence – When a child is injured or emotional traumatized by an event or act, their life is never the same and the joy of childhood is ripped away.

​f.​ Right vs. Wrong – You may be able to paint the case in simple terms which we are all taught as children; you do what is right because that is your duty.

​g.​ Failure to Accept Reality – Don’t Confuse me with the facts, my mind is made up.

​h.​ Greed/Selfishness – Such things often lead people to take short cuts and ignore their responsibilities to others.

​i.​ Struggling to Overcome Impossible Odds/Courage– Everyone cheers for a person who bravely soldiers on against difficult circumstances. Perhaps your client was seriously injured and has struggled to regain some semblance of his life. His efforts are heroic and worthy of the jury’s admiration.

​Themes in cases are virtually endless and only confined by your imagination. All great literature, including the bible, strike various themes that describe why we and what we should do. Tap into these themes and use them to unify your opening statement and closing argument.

Find those descriptive words and themes that best etch a picture in the jury’s mind about which your case is all about. Return to the themes raised in your opening statement and hammer them home in your examinations and closing. You may do this with topically leading questions such as, “I want to talk to you about the day where everything changed for Mary, do you understand?” Or it might take the form of, “I want you to tell the jury, about how this incident changed your life,” and then delve into the topic as if the witness were your client. Whatever powerful words you’ve created to draw the jury into your client’s story should be used to tie the evidence together for them with your questioning.

Hammer home your themes on cross-examination through the use of rhetorical questions and deductive logic.

Empowering Jurors… Justice or Injustice: A Book Every Attorney Should Read!

I just finished reading Justice or Injustice: What Really Happens in a Jury Room and it has some profound lessons for every trial attorney… Especially those in the criminal arena.

It is a short piece of non-fiction about a juror’s participation in a capital murder case and outlines the dangers that can occur when jurors do not know their right to hang a jury and hold onto their heartfelt and honest  opinion on a just verdict.  Compromise while expedient is not necessarily fair and just. Jurors are under tremendous pressure and really need our help and guidance in understanding the process and their rights.  David Ball, a jury consultant, refers to this as arming jurors by referring to evidence and testimony they will use in their deliberations. See Theater Tips and Strategies for Jury Trials by David Ball (Author)

As trial attorneys, we need to empower jurors by letting them know that they have an absolute right to disagree, hold-out and hang a jury if necessary to serve the ends of justice. If we do not explain this, then our clients could end up on the wrong end of a coercive verdict. A group of jurors uncertain about their right to disagree eventually capitulate to the majority out of doubt and fear over disagreeing with the majority in the case of Kimberly Renee Poole.  According to the author, the jury foreperson pushed the minority to change their verdict of “not guilty” primarily focusing on character evidence of the defendant’s background as a stripper and swinger claiming she deserved jail.  Alone afraid, uncertain, tired, and nicotine deprived the last hold-out (the author J.L. Hardee’s) surrenders to a guilty verdict. After the trial, it was learned that the foreperson had a close ties to the prosecution which were not disclosed in voir dire. His post verdict efforts to reverse what happened are discussed but ultimately unsuccessful.

Although one was not given in the case, the story also demonstrates the danger of an Allen Charge or dynamite charge as it is sometimes referred to by the courts.  See Allen v. United States, 164 U.S. 492 (1896). Such a charge is used to encourage jurors in the minority to reconsider their position.  About half of the states in the United States prohibit such a charge because of its potential to unjustly influence and interfere with the jury decision process.

So arm your jurors with knowledge of their important obligation and responsibility as a juror including the following:

1.    Their factual decisions are forever.  This is your client only chance to get this right.  Except in rare instances, appellate courts review legal rulings not factual findings.

2.     Lady Justice is blindfolded for a reason.  She is not influenced by station of life, background, color race, appearance, wealth, sex, religion or creed.  Her protections are bestowed on every single citizen. Jurors are sworn to decide a case fairly and impartially without bias prejudice. If someone tries to decide the case based upon something other than the judge’s instructions and the evidence relevant to those legal issues, then they should be reported to the court immediately.

3.     While jurors should not be afraid to honestly reconsider their position during deliberations, they are fully within their right to disagree with their fellow jurors.  No one will punish them for doing so.

4.      While this may be the most difficult thing they have ever been asked to do, they must be strong and courageous if justice is to prevail as your client’s fate is in their hands.

The Million Dollar Question: How Much Should I Ask For?

There is no set rule.  I would recommend that you play it by ear. If you have a case that is clearly worth a good deal of money, give the jury guidance as to how you calculated damages by breaking down each separate category covered in the jury instruction on damages and assigning a number to it. When doing so, you may want to suggest ranges and provide the jury with a summary chart breaking down the value of each element of damages. I know of one occasion in a case against a national department store where an attorney drew a blank line followed by six zeros ($___,000,000) on the chalk board and pointed to the blank line told the jury this is the only number you need to worry about.  His client received a million dollar verdict for a false arrest. Buddy Yosha is slightly less direct and will say in a matter-of-fact tone this is a seven figure case.  All of these methods have been known to work.

What ever number or argument you present, you need to do so honestly and sincerely. Also, keep in mind your audience that makes up the jury. Watch them as you argue and you should know what you are comfortable arguing.

The “Dos” and “Don’ts” of Closing Arguments

What are some common “Dos” and “Don’ts” when it comes to closing argument? Here is a list I put together:

            Do:

  1. Speak loud and clearly.
  2. Be confident.
  3. Vary your tone and location as you move from point to point.
  4. Be organized.
  5. Begin and end on a high note so your points will be remembered.
  6. Help the Jury with the instructions and form of verdicts.
  7. Keep track of your time.
  8. Try out your arguments on non-lawyers to insure your arguments are persuasive and understandable.
  9. Begin working on your closing argument on day one.  It will inform your discovery, preparation and instructions allowing you to develop a cohesive theme from day one.
  10. Be yourself.
  11. Be sincere and honest and the jury will trust you as a guide.
  12. Deal with your problems head-on before your opponent has a chance to address them.
  13. Use your exhibits and excerpts of key testimony from the witnesses.
  14. Use PowerPoint, blowups of testimony, or charts to assist the jury.
  15. Use analogies, quotes and vivid descriptions to keep them interested.
  16. Save your best “zingers” and analogies for rebuttal if you know the defense will have to address the matter in their argument.
  17. Judiciously use repetition as tool for emphasizing significant points.
  18. Have a clear call to action at the very end of your closing.

                       

            Don’ts:

  1. Don’t state your own personal opinion about the justness of your cause.
  2. Don’t misstate the evidence or law.
  3. Don’t mention evidence outside of the record.
  4. Don’t berate or personally attack the other lawyer to the Court.
  5. Don’t tell the jury to ignore the law.
  6. Don’t make a “Golden Rule” appeal to the jury and ask them to decide the case like they would want to be treated if they were in your client’s position.
  7. Don’t exceed the time allotted by the Court.
  8. Don’t personally vouch for a witness or your client.
  9. Don’t appeal to bias or prejudice.
  10. Don’t complain about the Court’s rulings or its treatment of you and your client.
  11. Don’t attempt to shift the burden of proof to the other side when you have the burden of persuasion on a legal claim or defense.
  12. Don’t implicate a defendant’s right to remain silent in a criminal case.
  13. Don’t insinuate that it is a lawyer made case without first obtaining approval of the Court.
  14. Don’t violate any orders granting motions in limine. (Can you say mistrial?)
  15. Don’t bore the jury or beat a dead horse.
  16. Don’t ask the jury to send a message with their verdict unless you have a punitive damage claim.  The purpose of the verdict in the typical tort case is to fairly compensate, not send a message.
  17. Don’t wear any distracting clothing or jewelry.

Closing Argument – What to Do When Your Opponent Deals from the Bottom of the Deck

20111004-080119.jpgIt is important to stick with the argument that you’ve planned out. 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 with 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.  Nonetheless, you need to be ready when the defense pulls the jury away from the real issues in the case and be ready to honestly and candidly deal with your case’s short comings.

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 work their way through the case. Handle the questions likely to be raised by the defense in a forthright and confident manner and put forth your best analysis of the evidence in favor of your client.

1.         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.  Remember, if you lose your credibility, you lose your ability to persuade.

2.        Address Any Weak Points in Your Theory –  You need to expect attacks and be ready to discuss 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.

3.        Last Words and Rebuttal – If you are the plaintiff or the state in a 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 determine 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:

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. [Emphasis Added.].

4.         Save Your Zingers for Rebuttal on Points the Defense Must Cover –  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.

A recent book, The Notes, posthumously published for 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:

http://www.youtube.com/watch?v=Wi9y5-Vo61w

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.

Gerry Spence had a very compelling analogy is to drive home the point that his client’s liberty rested in the hands of the jury. He reportedly used the following analogy at the very close of his argument in a criminal case and then sat down:

“I’m going to tell you a simple story, about a wise old man and a smart aleck 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.”

“Ladies and gentlemen of the jury my client is in yours.”

5.        Misdirection and Distractions –  Often times, your opponent will attempt to get the jury to chase false issues and red herrings.  Distraction, misdirection and appeals to prejudice are common tools of the defense. Ideally, you keep these improper arguments or evidence from the jury through the use of motions in limine. Sometimes this is impossible to do. What do you do to keep the jury from being mislead or distracted by meaningless side issues? How about a little verbal jujitsu! “Jujitsu” is the oriental “art” of manipulating the opponent’s force against himself rather than confronting it with one’s own force. You can do this  verbal jujitsu by using effective analogies and counter-arguments. Below are a few of my favorites analogies and arguments. I hope they help.

STREET LIGHT ANALOGY: One dark evening a woman was on her hands and knees under a street light looking through the grass. A man walking by stopped and asked what she was looking for. “The keys to my car.” replied the woman. Having some time and feeling helpful, the man joined the woman in her search for her keys. After looking for quite a while with no success, the man asked, “We have been looking for well over 15 minutes here. Are you sure this is where you were when you lost your keys?” “Why no, I lost them a couple blocks back over there by my car” the woman explained as she gestured back towards her car. The man was puzzled and asked, “If you lost them a couple blocks back, why are you looking for them here?” The woman without keys responded, “Because the light’s so much better here!” That’s what the defense is did here, even though the real issues are two blocks back…

WHEN THE LAW & FACTS ARE AGAINST YOU: In law school they say if the facts are in your favor, argue facts; if law is in your favor, argue law; if neither law or facts are in your favor, argue like a lawyer and try to confuse the jury about what the case is really about. It’s the oldest trick in the book. The defense took a nice simple case that is straight forward and tried to make it complicated by pointing to a bunch of things that really have nothing to do with the case’s merit in hopes that you’ll forget what this case is really about…

OCTOPUS ANALOGY: The defense is just like an octopus hiding behind a cloud of black ink, they try to obscure your view with their arguments and B.S. However, all you have to do is just move straight ahead through the ink and you can see the truth once again. Most octopi squirt thick clouds of black ink to confuse predators. However, a type of Tremoctopus, or blanket octopus (murasakidako in Japanese), employs a different technique. When threatened, the octopus unfurls a giant sheet of webbing that trails behind like a cape. The webbing breaks apart rather easily when attacked — much like a lizard’s tail — and it gets wrapped around the predator’s face, giving the octopus a chance to flee. The defense took a nice simple case that is straight forward and tried to make it complicated by muddying the waters with a bunch of things that really have nothing to do with the case, in hopes that you’ll forget what this case is really about…

RED HERRING ANALOGY:  A “red herring” is normally used by people to divert the attention of others from something important; from the central point that is being considered. A “herring” is a kind of fish that turns red only when it is “cured” – that is, when it is smoked and salted. Such a fish emits a very strong smell, and in the past criminals made use of red herrings to help them in their bid to escape the authorities. Convicts used the herring to help them throw dogs off his scent. Since the herring had a very strong smell, the police dogs followed the scent of the herring and not that of the escaped convict! The original expression was “drag a red herring across the trail”, but now it’s been reduced to “red herring”. That’s what’s happened here…

AD HOMINEM ATTACK: An Ad Hominem attack falls into a general class of logical fallacies in which a claim or argument is rejected because of some irrelevant fact about the author of or the person presenting the claim or argument. The reason this sort of argument is fallacious is that the character, circumstances, or actions of a person do not (in most cases) have a bearing on the truth or falsity of the claim being made (or the quality of the argument being made). These sorts of arguments appeal to prejudice and bias in hopes that you will ignore your sworn duty as jurors. They are wrongheaded and improper. Lady Justice stands there holding the scales of justice blindfolded. Lady Justice does not care if we are black or white, Christian or Muslim, male or female, rich or poor, married or divorced… Her sole concern is to fairly and impartially evaluate the evidence based upon the law. The defense’s personal attacks on my client have nothing to do with this case’s merits. It is bad enough that they have shamelessly injured my client, now they want to profit from insulting and degrading him in your eyes. These attacks have no bearing on what is a fair and just outcome given the facts and the law in this case which weigh heavily in favor of my client…

One book which has a number of great counter-arguments is Closing Arguments: The Last Battle. by Levin and Papantonio.  This book is a well-organized collection of miscellaneous arguments and analogies used to explain and illustrate various legal issues and address common defense attorney arguments and tactics used to undercut, confuse, distract or sidetrack juries from the central issues in a personal injury case.  Another fine book on the topic is The Lost Art:  An Advocate’s Guide to Effective Closing Argument, by Judge Joseph F. Anderson, Jr.  this book is a treasure trove of great ideas, quotations, analogies and the law governing closing argument. Both books are more than worth the money.

6.     Other Attacks to Address – here are a few more thoughts on how to deal with the defense when they deal from the bottom of the deck:

When the defense attacks through the use of innuendos- Another argument to present to a defense request for the jury to make his arguments for him when he sits down was suggested by the noted Attorney Moe Levine:

Countless attorneys, skilled and persuasive, each with their own acquired tricks to influence a jury by sowing the subtle seeds of cynicism. One of these is that when he sits down, he appoints you as his assistants and gives you permission to share with him the responsibility to represent his client in the jury room by answering each of my arguments to you. However, if this were truly the case, what need would there be to sum up at all? We would simply send you to the jury room and ask you to deliberate. This type of argument is not new to me. It is insidious and subtle. It asks you to take on the role of an advocate instead of that of a fair and impartial judge of the facts. Such comments subtly shape your view of the evidence. It moves you from a role where you are impartial, unbiased and neutral, to a role of where you act as an advocate for one side over the other. These techniques are subtle but effective.

Here is a response inspired by the approach taken by Attorney Rick Friedman, in his book “Polarizing the Case:

He [opposing  counsel] attacks by innuendo asking how can we know what the evidence shows when my client says he is in pain from this collision. He has had problems before. How can this be different? This too is subtle because what he is really saying is my client is a liar and a cheat and a fraud.  He won’t come right out and say so because he knows such a statement is outrageous and unworthy of consideration. In fact it is insulting. Instead he subtly insinuates that something is not right, planting the seeds of cynicism in hopes that back in the jury room, they will sprout.  This flies in the face of the evidence presented here. To buy into this argument you would have to conclude that:

Greed- If their Goal Was Money: My client and his spouse have come into this Court and both lied as well as all of those around who have corroborated their testimony. If this were about fraud would you not make greater claims? Wouldn’t you have run up unnecessary treatment? Would you be constantly complaining about your condition and claiming that your pain did not improve with treatment? Wouldn’t you do everything in your power to make you case more valuable? This has not occurred. My client has worked to get better and, in fact, has had periods of remission where his pain has improved even though it has never completely gone away.

Speculative and Unsupported Causes: He [opposing  counsel] also has insinuated that something else must has caused my client’s symptoms. He does this with evidence of any sort and again subtly plants the seeds of cynicism by asking questions and suggesting facts that no one has testified exist. It is undisputed that my client complained of symptoms at the scene and told the investigating police officer of this. The defense has no Doctor who has said such things. If the medical evidence is there, he could have hired an expert to say this is so. Instead of evidence, he has asked that you guess and speculate. This is not allowed.

Unfounded Assumptions or Unsubstantiated Arguments –  When this happens you might say something like this:

He thinks just because he argues and says something enough that we all will fall for his argument and treat his speculation like real evidence. I’d like to share with you some thoughts of one of our greatest Presidents, Abraham Lincoln:

Some people believe if they say something is so, that it makes it so. Abe Lincoln had a pretty clever way of dealing with such arguments. On one occasion, Abraham Lincoln, as a young trial lawyer in Illinois, was arguing a case with a lawyer whose version of the facts came more from the attorney’s fervent imagination than the testimony and evidence before the Court. Lincoln in his argument turned to the other lawyer and eviscerated him:

Lincoln:          “Tell me, sir, how many legs does a sheep have?”

Attorney:         “Well, four, of course,” he answered. ”

Lincoln:           “And if I call a tail a leg, how many legs would that sheep have?”

And the answer came back from the Attorney:  

“He’d have five.”

Abraham Lincoln slammed down his hand on the jury box and roared:

“No! He’d still have four. Just because you call a tail a leg doesn’t make it a leg. So now let’s see how many tails you have been calling legs in this case.”

7.     Bait the Other Side into Traps:

Sometimes, you can bait the other side into either embracing or rejecting positions that they have taken by innuendos. If you know that you can defeat the argument, call them out in the opening part of your argument and force them to commit. I have done this before to great effect and then pointed out the evidence which proved the defense wrong in rebuttal.

7.On the other hand, sometimes your opponent will raise a plethora of issues in hopes that you will waste all of your time chasing ghosts. Use the misdirection analogies above or use the following one:

Block Analogy: When I was a kid, my little brother, Bob, would sit and watch me build a really big impressive building from blocks.  As soon as I got it built, he would wait for me to look away for a second and then run up and tear it down my magnificent building of blocks in less than a couple of seconds.  He’d sit back and laugh while I chased around to gather back up the blocks he’d kicked around the room.  I was determined and would not let him stop me. Instead, I would patiently rebuild my block building again, even better than before.  Eventually, I quit chasing around the blocks and he quit because it was not fun anymore.

As a Plaintiff, you spend the trial putting your case together building it block by block – witness by witness.  The defense attorney comes along and throws out a bunch of questions and issues in his closing knowing that there is not enough time to address every point. Just like my brother, he will try to tear down my case in a few minutes hoping that I will waste my time in my rebuttal chasing each block he kicked away. Well, I for one am not falling for that trick again.

Don’t you fall for such tactics either when you argue your next case.                         

Puzzled Jurors? Piecing it Together for the Jury…

20131006-082108.jpgYour job is to help the jury see how the jury instructions apply to the evidence and that you’ve proven the essential elements of your claim, covering the essential facts and promises you made in your opening statement. You want to check your story provided to the jury in opening statement and show how various pieces of evidence, both documentary and testimonial, support your position. An effective means of arguing your case is the use of rhetorical questions which you pose the jury. The answer to those questions should be obvious. This encourages the jury to figure out the case for themselves. It also is an effective means to prevent yourself from stating your own personal opinion about the justness of your cause which is prohibited.

Analysis v. Summaries

The worst closing you could give is to get up there and run through each witness and summarize their testimony for the jury.  The jurors know what the evidence is and summarizing is boring. Collectively, they probably have a better recollection than you do.  The one thing they don’t have are your skills at analyzing and piecing the case together.

Applying the Jury Instructions to the Facts

Burden of Proof  –  In a civil case, remind the jury that you do not have to prove every single fact mentioned in the case by a preponderance of the evidence or beyond a reasonable doubt as the case may be.  You are only required to prove the elements of your claim or affirmative defense by the standard.  For the burden of proof in a civil case attorneys typically use the balancing of the scales to show that the greater weight of the evidence need only tip ever so slight towards the plaintiff in order to satisfy the burden of proof.

In a criminal case as defense counsel I might use an analogy such as the following to deal with reasonable doubt:

“Is it possible to prove that someone is guilty of a crime–guilty beyond a reasonable doubt–with nothing more than circumstantial evidence? With no eyewitness testimony? Certainly. Take the simplest situation you can imagine. You have a cat and a mouse and a big cardboard box. First you put the cat in the box. Then you put the mouse in the box with the cat. Then you put the lid on the box and tie it tight with a string so neither one can get out. “Leave the room for half an hour. Come back into the room. Untie the string, take off the lid and look inside. There is the cat, but no mouse. “Do you know what happened? You didn’t see. There were no eyewitnesses. But you know beyond a reasonable doubt what happened to that mouse. “Now let’s do that again. Put the cat in the box. Put the mouse in the box with the cat. Put on the lid. Tie it up tight. Leave the room and come back a half hour later. Untie the string, take off the lid.  “There is the cat, but no mouse. “But look. This time there’s a round, ragged hole in the lower corner of the box. Mouse-sized hole. Do you know what that hole is? It’s a reasonable doubt.”

“Now let’s take a look at the holes in the prosecution’s case.” Then write a word or two on the board for each problem, inconsistency or omission in the prosecution’s case. Draw a circle around each one as you finish talking about it. By the time you are done, the board is covered with holes.

I find it helpful use large exhibits and boards when making your closing and then applying the jury instructions to the evidence.

Commons Issues to Address

As a plaintiff, you want to make sure that the jury is not distracted from the real issues in the case and drag them into the high weeds so that they will lose their way. You want the jury to be clear that there are only two major areas of decision: liability and damages.  Any other consideration is irrelevant to the jury’s verdict.  Your client is entitled to fair and just compensation for all of the harms and losses caused by the defendant.  You can handle these problems both with jury instructions and arguments.

 1.         Sympathy and Vengeance –  You should tell the jury that:

“We are not here for vengeance, and we are not here for sympathy. Our client has gotten plenty of sympathy from his family.  We are here to right a wrong.  We came here for justice.  The days of an eye for an eye are gone.  My client would not wish what happened to him on anyone.  Today, justice is accomplished in our society by rendering a judgment for all the harms and losses he has suffered.  The Plaintiff is entitled to justice which is can only can only rendered in the form of a dollar verdict.”

2.         Only Chance to Recover Damages – “Long after the memory of this case fades for each of us, the problems and the pain will remain for my client. This is my client’s only chance. He cannot come back in 20 years when he is old and gray and he has all the problems likely to follow.

“You may say that it is not certain he will incur these costs in the future.  The law does not require certainty, only that it be more likely than not to be  required.   However, one thing is certain.  If you do not include money in your verdict for future medical treatment and pain and suffering, my client will leave this Courtroom worried about whether he will enough money to address these issues in the future.”

3.        Just Verdict –  To those who would argue that you are seeking a large verdict let them know that: “Verdicts aren’t large or small, only just or unjust.”

4.        Verdicts Are Not About Redistributing Wealth – “It’s not about wealth redistributing wealth. If someone damages a car by breaking the window, we make them pay the full price of the window, no more and no less. Otherwise, the cost of the irresponsible behavior falls upon the innocent victim, not on the people who broke the rules and were careless. That’s the basis of our civil justice system; we don’t want innocent victims to be bearing the costs of the Rule Breakers.”

 5.         Must Follow the Damage Instruction –  “The judge is going to give you an instruction here in a few moments and you’re going to have a chance to take a look at it. It outlines the items of losses the State of Indiana says you may consider in evaluating a case like this. This is not something I made up or the judge made up. This is what our legislature and court system says are the losses you should be able to consider in this type of case pursuant to your oath as a juror.”

6.            Pain & Suffering –  “Why do we make rule breakers pay for things like pain and suffering? Lost wages are one thing — so are medical bills. Somebody could argue, while my client might lose their job sooner or later, he would get another job. But would it be the job that my client loved? Probably not. And what about all the trouble that the injury is giving my client on a day-to-day basis not just at work, not just at home but in any activity that requires him to use his body or put weight on it. What about these intangible losses? Those are the things that can give us the most trouble, that keep us up at night, that prevent us from joining in on physical activities, but in a way they are the most important.  Remember, his pain is not on a yearly basis.  He has suffered and will suffer by the hour, by the minute, by the second, for the rest of his life.”

 7.        Pre-Existing Conditions  –  Here is a good line I have heard Buddy Yosha of our office use in dealing with pre-existing conditions:

“The defendant says shame on you if you have a prior condition.  Fortunately, that is not the law.  You take a person as you find them.  Some people, like the plaintiff, are easier to hurt and harder to get better.   In this case they (the defendant) hit the wrong person and now they have to pay for the harms and losses their carelessness has caused.”   Then refer the jurors to the Court’s instruction on this topic.

8.         The Whole Man Argument – Moe Levine was a legendary plaintiff’s attorney.  Here is a link to a You Tube Video where he discusses some of his strategies:

https://www.youtube.com/watch?v=b0P7EoKrW1o

He could persuasively explain to a jury how an injury to one part of the body affected the person as a whole.  Here is his argument:

In Corinthians it states:

“For the body itself is not made up of only one part, but many parts … and so there is no division in the body… If one part of the body suffers, all the other parts suffer with it”.   How do you evaluate pain? Do you evaluate it by the minute, by the hour?   Not I. I say this cheapens the human being and this woman who comes to you in this case does not deserve to be cheapened. She has done nothing for you to cheapen her by anything less than full justice.  What does full justice mean? Isn’t this our true goal? Do you agree with this—that anything less than full justice is injustice? I say it so quickly. I say it so quickly, yet we could talk about it for weeks. If he was entitled to recover here, and you gave him nothing, then you would give him total injustice. If he were entitled to $150,000 and you gave him only $140,000, there would be $140,000 worth of justice, and $10,000 of injustice.  I’ll admit that it’s just one way of looking at it. One man says his glass is half full and the other one says half empty, depending how thirsty each is. I know, but don’t you see that when we talk of justice we cannot talk of part justice? When we talk of pain we cannot talk of pain to a part of a person. This is a total person.  Let me become philosophical with you a moment if I may. Remember, “No person is an island unto himself.”    Remember what it means? When this person was injured, his whole family became injured. Right? His spouse became injured. His children became injured. His injuries affected their ability to live and enjoy life. Do you see the ripples spreading around this family? Do you see why it is that no person is an island unto himself, but that injury to any member of the human race eventually inflicts injury on all members of the human race?  Do you see why injury to part of this man you necessarily must injure all of him? This is a total integrated organism. Are not the few things he has left in life even more precious after all that he has endured.   I will not cheapen my client by telling you to figure out the value of the avoidance of pain by the minute or the hour. I insist that you take him as a whole person and that when you form your judgment as to his value, you will recognize that the destruction of part of a whole person has destroyed in part all of him. 

A number of these sort of topics are extensively covered in books such as Polarizing the Case: Exposing and Defeating the Malingering Myth by Rick Friedman, Theater Tips and Strategies for Jury Trials by David Ball, Moe Levine on Advocacy by Moe Levine and David Ball on Damages 3, by David Ball.   I have purchased these books and strongly recommend you do the same.  Another fine book on speechmaking you need to read is Speak like Churchill Stand Like Lincoln by speechwriter James Hume covers the elements of a well crafted speech.  A consultant to presidents of industry and countries, his tips on both style and substance are concise and invaluable.   The book is also an entertaining read.

Gerry Spence has his own way of laying out this argument:

It’s now time to get justice. It’s now time to get retribution. What is justice? Well, in the civil case, it’s to get the only thing that can be given to you. They can’t give you back this little baby. “Give me back little Jenny and you can have back all of the $10 million dollars that I ask for in this case. I want justice. I don’t want a little part of Jenny. Don’t give me her little toes. Don’t give me back just her little smile. I want all of her back. I don’t want just $500,000 for a little toe. I want all of her back. Don’t cut her in half for me.

Give her all to me. Will you?”

9.        Jury Forms – Jury verdict forms these days are very complicated especially in cases involving multiple defendants under Indiana’s Comparative Fault Act.  In a complicated case, I would recommend blowing up the jury verdict form in showing the jury precisely how to fill it out and calculate your clients damages.

I hope this information helps the next time you prepare a closing argument.

Closing Argument: How to Combat Guilt by Association

HarvestingOftentimes, we have clients who through no fault of their own grow up in difficult circumstances or are simply in the wrong place at the wrong time.   The opposing attorney may try to paint your client as less than worthy in the eyes of the law.   However, remember that lady justice holds the scales of justice blindfolded so that all are treated equally without the consideration of improper factors or prejudice about how they may look or where they find themselves stationed in life.  Below is a useful analogy that Gerry Spence made use in his criminal defense of Randy Weaver against the federal government in dealing with guilt by association:

A farmer had difficulty with a flock of crows plundering his crops. As a result, the farmer put up a large net high in the air to catch the offending crows as they flew over his fields filled with crops. At the end of the day, the farmer pulled down his net and among all the crows which had attacked his crops was a single white swan. The farmer pulled the birds off of the net one by one and wrung their necks to kill them.

When the farmer came to the swan, the swan cried out, “I’m just a swan! I’m not a crow! I was just flying by and got caught in your net.” The farmer responded, “Why you must be a crow, because I caught you in my net.”

The innocent swan died at the hands of the farmer that day because it was in the wrong place at the wrong time. The farmer assumed it was a crow even though the swan had done nothing wrong.

That’s what we call “guilt by association”. It has no place in our system of justice as it is proof of nothing. We all know that it’s wrong to jump to such a conclusion, but that’s what the other side has done here. And they are asking you now to do the same thing by finding my client “guilty by association”.

 

Another analogy that comes to mind from the bible is the following Parable of the Weeds used by Jesus in describing judgment day in Matthew 13:24-30 :

Jesus told them another parable: “The kingdom of heaven is like a man who sowed good seed in his field. 25 But while everyone was sleeping, his enemy came and sowed weeds among the wheat, and went away.  When the wheat sprouted and formed heads, then the weeds also appeared.

“The owner’s servants came to him and said, ‘Sir, didn’t you sow good seed in your field? Where then did the weeds come from?’

“‘An enemy did this,’ he replied.

“The servants asked him, ‘Do you want us to go and pull them up?’

“‘No,’ he answered, ‘because while you are pulling the weeds, you may uproot the wheat with them.  Let both grow together until the harvest. At that time, I will tell the harvesters: First collect the weeds and tie them in bundles to be burned; then gather the wheat and bring it into my barn.’”

Does not my client deserve the same consideration?  Shouldn’t he be judge based upon who he is and not who he is with or where he lives?

%d bloggers like this: