Earl Rogers was a famous attorney who died in 1922. He defended 77 murder cases and lost only three.  He was one of the greatest trial lawyers in American history. The long running  TV series, Perry Mason, was based upon Earl Rogers life. His daughter Della Rogers St. John’s wrote a descriptive book of his trial skills in Final Verdict which is not only enjoyable reading, but educational as well.

We think about Clarence Darrow as a great trial lawyer, but when Darrow  was charged with jury bribery in Los Angeles, it was  Rogers he selected to be his defense attorney. Darrow had been hired by the labor union to defend the McNamara brothers charged in the 1910 dynamiting of the Los Angeles time buildings in which 21 employees were killed. His trial in 1912 was a national sensation.

As you might expect with two giants  of the trial bar and one the client, the trial in Los Angeles was probably one of the more famous lawyer – client disagreements on trial tactics recorded in legal history. Rogers and  Darrow argued daily about tactics with Rogers usually prevailing.

His skills in argument  were also extraordinary. In Darrow’s case, his argument was that the prosecution was a conspiracy against Darrow. In final argument he said to the jury:

“Will you tell me how any sane, sensible man who knows anything about the law business – and this defendant has been added for 35 years – could make himself go to a detective and say to him: “just buy all the jurors you want. I put my whole life, my whole reputation, I put everything I had been to your hands. I trust you absolutely. I never knew you until two or three months ago, and I don’t know very much about you now; but there you are, go to it.!”

Note how he moved to the first person and painted a word picture that created an  image in the minds of the jury to ridicule the idea.

Rogers amazing skill in the courtroom is also described a book by Cohen and Chrisholm entitled Take the Witness. While Melvin Belli was seen as the king of demonstrative evidence, long  before Rogers was already using innovative ideas during trial. At a time when there were no easels with butcher paper or digital display, Rogers was using techniques no one else was using.

In his argument during the  defense of Darrow, Rogers had a huge chart hung from the judge’s bench to the opposite wall. On it were lettered the names of witnesses who testified for the prosecution, classified under headings according to the nature of their testimony. Rogers would dramatically emphasize his argument by approaching the chart with a long pointer to single out the witness he was talking about.

The jury instructions took 30 minutes and the jurors were back in less than half an hour with a not guilty verdict after a three month trial. However Darrow was re-indicted on a claim of bribery of another juror. Rogers began the defense but withdrew mid-trial from illness and Darrow continued pro se. The result was a hung jury with several jurors holding out for a conviction. The prosecution agreed not to re-and try him on a commitment that Darrow would not practice law in California again. Roger’s  daughter claims Darrow failed to pay the agreed fee afterwards.

Rogers frequently used reenactment during trials to his advantage. While defending  a man accused of shooting another during a card game, Rogers had the card table set up and the situation reenacted while he cross-examined. In another trial, when the witness claimed he had been able to see what had occurred in the hallway through the transom of the door, he had the door and transom removed and brought to the court room to demonstrate the impossibility of what had been claimed. In exhibits, reenactment and trial demonstration Rogers was brilliant and before his time.

His cross examination skills were one of the more outstanding qualities he possessed as a trial lawyer. In one case the nephews of the deceased sued the estate claiming that when he had signed his will cutting them off without a penny he was not in full possession of his senses. The chief witness for the estate and validity of the will was the attorney who had drawn it and witnessed it. He insisted that the deceased had been in full possession of his senses and knew what he was doing when he went to the man’s  house for the signing of the will. Rogers spent a great deal of time with this witness on cross examination recalling the many years of close friendship between the deceased,  Patrick Talent, and the lawyer. After a lengthy time of  questioning along these lines he asked the witness:

Q. Was there any change in your friendship before he died?   A. None

Q. At any time in the past had there been any misunderstanding between you?    A. Never, we were always warm friends.

Q. And after you witnessed the will of your old friend, what did you do then?  A. I left.

Q. Well, did you say goodbye to your old friend, before you took your departure?  A. No, I left as soon as I had witnessed his signature.

Q. What!

Now the court and jury were wide-awake after the dramatic cry of Rogers who had approached the witness  and shoved a quivering forefinger into the witnesses face.

Q. You mean to tell this court and jury,(demanded Rogers in a harsh, incredulous tone) that you, the dear friend, the lifelong friend of Patrick Talent, knowing he was dying, did not bid him a last goodbye?   A. I don’t think I did, said the dismayed man

Q. You don’t think! If you bade farewell to your lifelong friend on his deathbed, you would not be uncertain about it. You would know! Did you bid him goodbye? A. No, whispered the witness.

Q. If you did not say goodbye to your dying friend, there could only be one reason – and that was that you knew he was mentally incapacitated, that he did not know you! Is that not so? A. ( after a long pause) the witness raised both hands midway to the shoulders and shrugged.  – Rogers had no more questions.

During argument Rogers assumed a first person role with the deceased saying:

“Suppose Patrick Talent were to enter this courtroom now. Suppose he came within this rail. He would ask what this was all about and he would be told that it was about his will. He would be astonished. He would say:  “Why, I never made a will! (Rogers simulating  the voice and mannerisms of the deceased,, turned towards the lawyer who had been cross  examined by  Rogers,  – Dixon Phillips) “Dixon Phillips, you know I never made a will. You know you made that will. I never did! And, gentlemen of the jury, Dixon Phillips would then jump out of that window!”

The jury took no time to find in favor of Roger’s clients on the issue.

I think we too often believe we have thought up a new idea or trial concept that no one else has used before. However, the truth is that in almost every case, the seed of the idea or concept had already been thought about or used by the trial lawyers of past history. I think there is much to learn about trial work from those who have gone before us and by modifying it to the world and jurors of today.

Here’s to two great and unique trial lawyers of yesteryear Clarence Darrow and Earl Rogers.

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In 1985 David Ogilvy wrote a book Ogilvy on Advertising which became a classic encyclopedia about successful advertising. Ogilvy was the founder of the famous New York advertising  agency Ogilvy & Mather and what he has to say about successful advertising rules should be read by every trial lawyer. Here are some of the points he makes. As you read them think about your exhibits and PowerPoints, but also your spoken presentations.

  • On average five times as many people read the headlines as read the body copy. It follows that unless your headline sells your product, you have wasted 90% of your money. Headlines get five times the readership of the body type. If your headline doesn’t sell, you have wasted your money because body copy is seldom read by more than 10% of the readers
  • It pays to write short sentences and short paragraphs and to avoid difficult words. I once wrote that Dove makes soap “obsolete” only to discover that the majority housewives didn’t know what it meant.
  • Newspaper editors used to say: “short paragraphs, the shorter the better. Short paragraphs, short sentences in simple words. Bear that in mind and you get $75 a week.”
  • Consumers need a rational excuse to justify their emotional decisions. So always include one. Above all, don’t attempt emotion unless you can deliver it.
  • Open with fire. You only have 30 seconds. If you grab attention in the first frame with a visual surprise, you stand a better chance of holding the viewer.
  • If the issue is complicated, and it almost always is, simplify as much as you reasonably can.
  • Present your case in terms of the readers self-interest
  • Disarm with candor. Give both sides of the issue
  • A caption should appear under all your photographs. Twice as many people read them as body copy.
  • Visuals are the message. Words are no longer the primary message giver. Now pictures tell the story.

Several  years  ago jury consultant Sonya Hamin wrote a book What Makes  Juries Listen Today and her observations on communications are as relevant today as when she wrote it. Here are some  of her ideas:

  • Watch the anchor persons seamless delivery. He or she doesn’t make mistakes or cast about for a word. They don’t look at notes; they look at you directly, keenly, sincerely and they talk.
  • Here are the basic components of the structure of any address:

(1)        a strong opening
(2)        identifying the audience needs and interests as to why they should listen
(2)        organization of material
(3)        understandable language
(4)        analogies and examples
(5)        rhythm, pace and drama
(6)        visual support
(7)        connection with the audience
(8)        a memorable close

Here’s what she says about physical movement during trial: “Do you remember when you were in grade school and the door opened? Everybody’s head snapped towards the door. Same thing is true for grown-ups trapped by a speech. Allow either you or your witness to walk, point, right worse or moved charts, change an image, or explain a point while standing at a screen will enhance what is being said in the courtroom.”

Her observations about physical positioning is also part of  good  communication. She  recommends:

  1. Don’t Hold onto your wrist. It looks like Peter Sellers in the movie Dr. Strangelove where he had to hold onto his wrist to prevent his arm from flying up into a Nazi salute. When we see people with their hands tightly clenched, or hidden behind their backs there is a feeling of hiding something. Use an open position with hands free.
  2. People are less likely to pay attention to you when you’re seated then when you’re standing.
  3. The podium is intimidating and creates a visual barrier between you and the jury. Sitting with a table in front of you does the same thing.

These are the few ideas from two books that are worth considering.

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In the early 1970’s there was an  African American comedian, Flip Wilson, who hosted his own weekly comedy series and earned a Golden Globe and two Emmy Awards he was  so talented. One of  his hilarious routines involved acting out a character,  Geraldine,  who was married to long suffering Reverend LeRoy, pastor of the Church of What’s Happening Now.  Her  excuse  for everything she did wrong was:  “The devil made me do  it.!” As Flip enacted in a famous routine, Pastor LeRoy discovers his irresponsible wife has bought an expensive dress and he explodes:

“What on earth ever possessed you to buy such a thing?” he demands. “The devil made me do it!” Geraldine protests. She tells her husband: “It’s not my fault!” I was walking down the street, minding my own business, when all at once the devil said to me, ‘Oh, my! Will you look at that fancy dress in the window over there!’ Never you mind about that dress, devil,’ I said to him. ‘I ain’t got nuthin’ to do with a dress like that! ‘Well,’ said the devil, ‘it won’t hurt to just look at it, will it?  No, I guess not,’ I said. So I went over to the dress shop and looked in the window. My, that dress sure was fine! ‘Why don’t you go inside and have a closer look,’ said the devil. ‘After all, you’re just lookin’. So I went inside the shop to have a closer look. That dress was even more fancy inside the store than it was outside.

‘Why don’t you try it on,’ the devil said. Uh, uh, Mister devil,’ I said. ‘You know better than that! My husband would never let me buy a dress like that!’ ‘Can’t hurt to try it on,’ the devil said. ‘Reverend Leroy, he don’t even have to know! So I tried the dress on. Why, it was like I was poured into it, it fit so good! ‘Oh, you know that dress was made just for you,’ the devil said. ‘It wouldn’t be right to let some other woman have it.’ So before I knew what I was doing, I bought it!  Like I said, the devil made me do  it.

We’ve already talked about admissions of  liability made to tactically keep out liability evidence as well as the psychology of defense apology. See for example: http://plaintifftriallawyertips.com/how-to-admit-you-were-wrong-accept-responsibility.  But, what we more frequently see is a refusal to accept responsibility by a defendant either through evasion, lying or blaming  others. Starting with Genesis with Adam blaming  his wife and his wife blaming the serpent, humans have been reluctant to accept the fault of their own actions. Instead,  human nature resorts  to lies, evasion and blaming  others. This excuse has as much validity as  Geraldine’s protest of innocence because “The devil made me do it.” The defendant might as well have used the  same excuse.

The consequence of refusing to accept responsibility is that when unethical or negligent  behavior is not acknowledged, remedied or  punished, society is taught it’s acceptable to condone the behavior.  However, all members of  society are expected to adhere to legal, ethical or moral codes of  basic honesty for our collective good. If we allow individuals to benefit from their dishonesty and  are  permitted to avoid being responsible for what they do,  we create a  world like Gordon Gekko in the movie Wall  Street who taught that “greed is good.” Our collective values determine what  is right and wrong. These values are reflected in our laws of  conduct and in our enforcement of what we all believe is reasonable conduct. A failure  to  enforce these rules is to approve and  condone  dishonesty.

The reason we punish our children for lying,  stealing or dishonesty is  because we  want them to learn proper values  which include being honest when they are wrong and responsible for what they do. One of the duties of parents  is to  teach our children to take responsibility for their  actions. All of us, as parents, at some  time  or another, have had our children try to blame others and avoid taking  responsibility for their conduct. We have had to teach them the importance of being honest and taking personal responsibility for what  they have  done  or failed to do. Our judicial system follows same policy by holding  wrongdoers responsible as a protection and benefit to all of society. What we do by our verdicts is to set community standards  for conduct and reinforce the importance of honesty regarding  personal responsibility.

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