Category Archives: closing arguments
Trial Post-Mortem
If you try cases long enough, you are going to eventually lose a few. You need to look at losses as an opportunity to improve. Quite honestly you should learn more from your loses, than your victories. If your are allowed, you should speak with the jurors and see what they thought was important. You need to check the case and consider:
1. Jury Voir Dire: Was a juror biased against your case? Could you have formulated a better question to uncover this bias and possibly exclude the juror. Were there a problem with your case you could have raised in voir dire to find out who could not treat the evidence fairly?
2. Prejudicial Evidence or Arguments: Did the other side present irrelevant evidence or improper arguments? Even if your objection is sustained, it is often difficult to “unring” that bell. You may be able to head off such arguments or evidence in the future through an motion in limine excluding such evidence or argument. It might also uncover problem evidence.
3. Were There Surprises: Perhaps the opposing party hit you with evidence you missed. Next time you may be able to head off such problems by doing what your opponent would likely do in investigating the case. You may need to comprehensively collect and check medical records more carefully and prepare a medical chronology to refresh your client’s memory before questions are incorrectly answered in interrogatories or depositions. Or perhaps, there are other lawsuits, claims or even criminal convictions your client failed to tell you about in advance of discovery and their deposition. You may want to hire a private investigator to do a preliminary background check of your client or just do a Google search of your client’s name to see what you might uncover. You may want your client to give you access to their social media sites to check for potential problems. Better yet, you can educate your client early on about the importance of being completely honest with you. There are few problems that cannot be dealt with if you know about them. It’s the problems you don’t know about that can kill you. I always tell a client that: “You don’t want to take a good case, try to make it a great case (through exaggeration or lying) and turn it into a bad case.”
4. Witness Preparation: Did you adequately prepare your witnesses or client to testify. Good testimony requires that you and your client be on the same page. You need to adequately prepare your client or witness for any landmines that exist and perhaps bring up the problems yourself in voir dire, opening and/or on direct examination to blunt the damaging evidence’s impact. Video-taping a mock testimony session and allowing your client or witness to critique their own performance can work wonders as well.
5. Additional Evidence: Was there a witness you needed to call? Lay-medical witnesses to paint a before and after picture can go a long way in corroborating your client’s testimony that they were injured in this incident and not from some other event or condition. Was there an expert whose testimony might have covered a gap or question in your case? Could a photograph, diagram or model have made your presentation clearer or answered a juror’s doubt?
6. Jury Instructions: Were there jury instructions needed to address points of law pivotal to your case and the jury’s understanding of those issues? Don’t take the easy way out and rely simply on pattern jury instructions. Review the case-law and formulate your on instructions on nuanced points of law that are difficult for the jury to understand and apply to your case.
7. Strategy: Was there something you could have handled better? Was there a better analogy or argument you could have used to make your point or address your weaknesses? Was your overall view of the case cohesive and persuasive. Was your order of witnesses correct? There are a number of great resources available to you from books about famous trials, closing arguments and trial advocacy. Don’t reinvent the wheel. Learn from other’s experience what works and what doesn’t. Seek out a mentor and pick their brain. See my earlier post on Fireside Reading for the Trial Attorney.
I hope the thoughts outline above help you in critiquing your “failures” and turning them into an opportunity for improvement and growth as an advocate.
Distraction, Misdirection and the Art of Verbal Jujitsu.
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. However, 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 by verbal jujitsu 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 stops 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 awhile 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 explains as she gestures back towards her car. The man puzzled, asks, “If you lost them a couple blocks back, why are you looking for them here?” The woman without keys responds: “Because the light’s so much better here!” That’s what’s the defense 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 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 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 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 sort 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 Moslem, male or female, rich or poor, married or divorced… Her sole concern is to fairly and impartially evaluated 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. 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.
The Barrister's Toolbox 