An article written by James W. McElhaney in 2004 was recently called to my attention. McElhaney is a wonderful teacher of solid trial techniques and a long time writer for the ABA Journal about communication in trial. This article was titled “No Time to Waste” and was published in the Journal at: http://www.abajournal.com/magazine/article/no time_to_waste
In writing about opening statement McElhaney writes about “the golden moment” which he says is the first 30 seconds you have when you first begin to speak on any subject in a trial. That’s when you have everyone’s undivided attention and a chance to make a real impact or impression on the jury. He says this concept applies to every aspect of trial from jury selection to opening statement, direct examination, cross and final summation. The golden moment is the first 30 seconds.
To illustrate this principle he gave an example involving my friend, Albuquerque trial lawyer Randi McGinn, who was defending a murder case and had twenty minutes for jury selection. The prosecutor used the traditional questioning about burden of proof and finding the defendant guilty if he proved the case. However, when Randi stood up, the first words out of her mouth were “When the charges were read to you, I saw the looks of horror on all your faces. This is a despicable crime. What could be more terrible than shaking a helpless six month old baby to death? And that brings us to what Judge Garcia has given us twenty minutes to talk to you about: Being blamed for something you didn’t do. Is there anyone here, on this panel, who has ever been blamed for something they didn’t do?”
That thirty second opening framed the case as being about being blamed for something you didn’t do. It also prompted a discussion among jurors about being blamed for something they didn’t do. She created the issue in the trial as the moral imperative to not ever blame someone for something they hadn’t done.
McElhaney’s example of the same principle in a civil case was the example of a plaintiff’s lawyer standing up and saying: “ ‘Ladies and gentlemen, this is a case about a young woman’s eyes.” After framing the case about eyes and capturing their attention, he said “‘If you had been in the corporate headquarters of the Midwest Conveyor Manufacturing Co. on June 14, just two years ago, you would have seen six corporate officials choosing not to take the opportunity to prevent a tragedy because of profit motive.” And from there telling the story of corporate greed that caused them to decide not to take safety precautions resulting in an injury causing blindness.
McElhaney notes the psychological principle of primacy applying to the first thing you say to the jury. That is what you first hear you are more likely going to accept as the truth and remember the longest. The same idea applies to direct examination. His example in cross examination was a criminal case where the defense lawyer didn’t start his client’s examination with the usual background questions about education, employment, marital and the like. Instead he started this way:
Q: You’re Tom Milligan?
A: That’s right.
Q: Tom, before we get started here, let me ask you: Do you understand the nature of the charges this man has brought against you?
A: Well, I think so. He claims I attacked him or something in an alley outside the Seaman’s Cove Bar.
Q: (In an accusatory tone) Tom Milligan, is that right? Did you attack this man outside the Seaman’s Cove on the evening of Dec. 8—or any other time?
A: Absolutely not!
Q: Tom, I’m going to ask you all about Dec. 8, but before I do, I’d like the ladies and gentlemen of the jury to get to know a little about who you are, so let me start with your family life …
McElhaney then gave a true example from one of my favorite cross examinations by now deceased, Washington DC, white collar defense lawyer, Edward Bennett Williams. He was one of the nation’s finest criminal defense lawyers during his career. It happened at the time of the Watergate scandal. John Connolly had been secretary of the treasury under President Nixon and was charged with taking a bribe. The principal witness against him was Jake Jacobson, a disbarred Texas lawyer. This is how Williams began Jacobson’s cross examination:
Q: Mr. Jacobson, you’re a liar, aren’t you, sir?
A: No, I’m not!
Q: Take a look at this document. It says “Statement of Jacob Jacobson” on the top. That’s you, isn’t it?
Q: And that’s your signature on the bottom?
Q: And the first sentence says, “I lied when I testified before the grand jury,” doesn’t it?
Q: So you are a liar, aren’t you?
Trial lawyers keep misunderstanding the minds of the people they are trying to convince to vote in their client’s favor. They present their cases as if people thought only on a conscious, objective and logical basis to arrive at their opinion. They fail to understand we make our decisions at a subconscious level, based upon our values and on our emotional impressions. They fail to recognize that in our digital age our attention span is measured in seconds and like Twitter, we want the message to be short and summarized in a few words or we have quickly mentally moved on. Don’t waste the “golden moment.”