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All Things Have a Rhythm Inluding Your Closing and Examinations

I was listening to a new album by cousin Peter Neff that he created in collaboration with his co-composer Mauricio Yazigi titled Spanish Guitars.  The sound and rhythm is mesmerizing.  It reminded me that a good cross-examination or closing argument has its own rhythm and melody.  The pace and delivery both lulls and controls the defenses of the witness As the examination draws him closer to the truth.

Want to understand this power? Read out loud classic dialogues such as Plato’s the Republic. The Republic is a Socratic dialogue, written by Plato around 380 BC, concerning the definition of justice, the order and character of the just city-state and the just man.  You will notice how the pace and melody of the words propels the examination and the rhetorical power of the questions posed.

Remember that cross examination is simply a means of speaking the truth to the jury through a series of well planned rhetorical questions that logically lead to your ultimate point. These examinations have a rhythm which you can use to your advantage to emphasize the themes of your case. See F. Lee Bailey’s cross examination of Detective Mark Furhman which helped undermine the State of California’s case by suggesting Furman was a dishonest racist who planted blood as evidence against O.J. Simpson.

Likewise a good closing has a rhythm and melody which melds with each point you must make to the jury. Check out the clip of “True Believer”, San Francisco attorney Tony Serra, give a spellbinding closing argument for his client, Rick Tabish charged with murder.

Tony Seera 

Find your pace and use it to your advantage. The modulation of the pace, volume and pitch of your voice is no different than a musical instrument.  It conveys the mood and emphasis of you point. Make sure there is both a rhyme and a reason supporting your next presentation.

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!

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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.

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.

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.

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.

A Recipe for an Effective Closing Argument

20120115-144530.jpgBelow is a summary of some thoughts dealing with closing arguments which I would like to share.  Like a good meal, a closing argument is something which requires careful preparation and a judicious mix of ingredients in the appropriate quantities.   Below is my recipe for an effective closing argument.

Goals

            While it may seem intuitively obvious, the central goal of any closing argument is to prevail on behalf of your client. Any other objective is secondary. This is your last opportunity to speak with the jury and you don’t want to waste it. Below are some thoughts concerning how to best compile the central goal on behalf of your client.

Strong Opening Grab their Attention

As far as I am concerned, 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 closing argument. In his book, Screenplay: Foundations of Screenwriting he talks about how important the first 10 minutes (approximately 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.

Themes

Themes act as a unifying thread of your case. It is a thing that motivates the jurors to take action. There are number of potential themes.  Watch movies and see how things are developed and the best ones. In fact, I have a book that contains nothing but quotes from various movies which I tried to interject in my closings to make them more interesting and compelling. Below is an example of a closing argument that I gave which dealt with the themes “profits over safety” and “accepting responsibility”.  This is the same case discussed earlier in my materials on direct and cross examination.  Here is the introduction:

This is an important case.  It’s important for a lot of reasons – most importantly, as I said at the beginning of this trial, it’s a case about accepting responsibility and in this case Mr. King did not accept responsibility.  Mr. King ignored facts.  Mr. King ignored laws.  Mr. King 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 common themes:

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

Keeping Promises – A man’s word is bond.

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.

David & Goliath [Right v. Might]  –  Everyone loves to see the little guy prevail over the big bully whether it be the government or a large corporation.

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.

 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.

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

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

Struggling to Overcome Impossible Odds –  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 argument.

Keeping Your Promises

As you move through your closing, it is important to link back to the themes and promises you made in your opening statement to show that you have fulfilled the obligations assumed in your opening statement. That is one of the reasons why you don’t want to promise anything in your opening statement that you can’t deliver on during the course of the trial.

Likewise, if your opponent has made promises and failed to fulfill them, you want to be able to point this out to the jury.  That’s why you always want to keep good notes of your opponent’s opening and in some instances you may even want the court reporter to partially transcribe the opening to drive the point home so that it can be quoted verbatim from the official transcript of the court.

Provide a Clear Request for Action

At the end of your closing argument, you want to clearly request the jury to take particular action on behalf of your client. This request for action can be addressed as you move through your closing. However, I always have a strong ending in my closing requesting action on the part of the jury.  Closing argument is similar to a pregame speech provided by a coach to his/her players. You want to motivate the jurors to take the action desired on behalf of the client.

If you can’t clearly request action on behalf of your client, how is the jury supposed to do so?  Here, is an example of such a call to action:

Our client would rather have his life back than a $1,200,000 verdict.  I suggest to you this is a seven-figure case.  I’ll leave it to your discretion to go through and look at these damages and analyze the jury instructions.  This case has been a heavy burden on our client.  It’s been a heavy burden on the attorneys to work it up, as you’ve probably seen these last four days.  But today we sit down and the job becomes yours.  And we appreciate your time and your attention to the case and know that you’ll do justice for him.

How Can I Help You?

I remember seeing Kent Rowe Sr. of South Bend, Indiana give a fairly dramatic introduction to defense closing argument in a serious personal injury case.  He looked at the jury and  asked:  “How can I help you?”  He stood there a moment, paused, and once he had the eyes of all of the jurors he moved forward and did just that… helped the jurors.  He answered questions about how they go about their job in looking through the evidence and applying the facts to the Court’s instructions.  He showed them how to handle the form of verdicts.  He posed and answered questions that were likely on the jury’s mind concerning the issues in the case.  By opening in such a fashion he crawled into the jury box and truly helped them to fulfill their duty to the justice system.

That is what we are called to do every time we deliver a closing argument… Help the Jury   reach the outcome we desire for our client.

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?

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.

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