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The Problem with Problems.
So 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 admit your problems and you don’t run away from them. 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: 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.
Closing with Style
Style and Delivery
As mentioned in my last post, there are a number of great sources worth consulting for purposes of delivering a closing argument. On that is particularly appropriate is the a speech book called, Speak Like Churchill Stand Like Lincoln by James Humes. Here are a few short comments on this topic:
- Tone – You should vary your tone and positioning during your argument and use that as a signal to the jury as you move from point to point. Your delivery should have feeling and sincerity
2. Time Limits – Try and learn what limits the Court is likely to place upon you before the trial begins so that you can adjust your closing argument accordingly. I typically try to leave at least a third of my time for rebuttal argument when I am the plaintiff. Ask the Court to signal you when you are down to your last five minutes. Have your closing remarks down pat so you can end on a high note.
- The Whole Case – You want to weave together the whole case for the jury and show how it fits into the narrative you presented in opening statement and is addressed by law as given by the Court. Make sure that you give specially tailored instructions to discuss the central issues in your case. Examples could include sudden emergency, pre-existing conditions, intervening causes, superseding causes, mistreatment by a doctor, evidence offered for a limited purpose, etc. Both the law and the facts will impact your case. Also, make sure that you have a good issue instruction since this will likely be the first exposure that the jurors will have to your case.
Don’t be afraid to introduce in your jury voir dire certain concepts or even analogies if you are sure you are going to use them as part of your theme. I was defending a murder case and used the “cat & mouse in the box” analogy in explaining reasonable doubt and in my closing I was able to refer to the various problems with the case as the “holes in the box” carrying on my theme throughout the case.
4. Use of Visuals – Paint a vivid picture with choice of words you use. For example, “They beat my client like a dog, blood splattering everywhere while he begged for his life.”
5. Quotes – There is a website called “Quotationary Online”, here is the link:
https://quotationary.wordpress.com/about/
Thanks to the internet you can find quote about almost anything in a matter of seconds. Here are a few I like in no particular order:
- “The truth exists, but lies are invested.”
- “Bad excuses are worse than none at all and all that you have heard are bad excuses.”
- “Many a lie is woven in the fabric of truth.”
- “There are three kinds of lies. Lies, damn lies and statistics.”
- “Figures don’t lie, but liars figure.”
- “If you tell the truth, you never have to remember.”
- ” No one has asked for your sympathy and no one does now, and when you have reached a verdict which is sanctioned by your conscience and ratified by your reason, no one can ever be heard to complain.”
- “I am not bound to win, but I am bound to be true. I am not bound to succeed, but I am bound to live by the light that I have. I must stand with anybody that stands right, and stand with him while he is right, and part with him when he goes wrong.”
- ” Nobody cares how much you know, until they know how much you care.”
- “Justice denied anywhere diminishes justice everywhere.”
- “Man, when perfected, is the best of animals, but when separated from law and justice, he is the worst of all.”
- “You can protect your liberties in this world only by protecting the other man’s freedom. You can be free only if I am free.”
- “As long as the world shall last there will be wrongs, and if no man objected and no man rebelled, those wrongs would last forever.”
- “The pursuit of truth shall set you free even if you never catch up with it”
- “Experience is the wisdom that enables us to recognize in an undesirable old acquaintance, the folly that we have already embraced.”
- “I had rather take my chance that some traitors will escape detection than spread abroad a spirit of general suspicion and distrust, which accepts rumor and gossip in place of undismayed and unintimidated inquiry.”
- “There is no wealth like knowledge; no poverty like ignorance”.
Finally, a couple of quotes for those who seek our advice without first paying for it:
- “A lawyer’s time and advice are his stock in trade.”
- “Remember my advice is worth exactly what you are paying for it… Nothing.”
- “Speaking of nothing, nothing is better than a good quote.”
6. Analogies – “One good analogy is worth three hours discussion.” – Dudley Field Malone.
I have outlined a number of analogies throughout my blog. When you hear a good analogy, make a mental note of it; or, better yet, write it down. I have a huge collection of analogies I have gathered over the years. The series of books designed for sermons called The Sower’s Seeds is a great source. I am also partial to a book entitled, I Remember Atticus: Inspiring Stories Every Trial Lawyer Should Know by Jim M. Purdue.
“A Tail Isn’t a Leg” Analogy – Saying its So, Doesn’t Make It So
Ever have an attorney argue a question of law or fact which just was not so. Some people believe if they say something loud and frequently enough, it makes it so. Abraham Lincoln had a pretty clever way of dealing with such tactics.
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 through a series of questions and answers:
“Tell me, sir, how many legs does a calf have?”
“Well, four, of course,” he answered. ”
And if I call a tail a leg, how many legs would that calf have?”
And the answer came back: “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.
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