SOME RANDOM THOUGHTS ABOUT ARGUING TO THE JURY

There are a multitude of ways in which we can argue issues to the jury. Of course,  all depends upon the facts of the case, the normal demeanor of the lawyer and the issues. In no particular order here are some notes from my trial materials on random ideas for final summation.

Damage Ideas

The remedy for harm inflicted on someone else requires full payment. Assume you have a $15 watch which somebody negligently breaks. You’re not entitled to a more expensive watch. But, assume the watch was a $12,000 Rolex. It’s not fair to replace it with the $15 watch arguing both keep time. If you break it, you own it and are responsible to pay in full for what you break.

Injury changes lives. Injury slows people down, they are a half a step behind everyone else. They never regain the same strength for the same health they had. They are made prematurely old before their time.

Time works against people who have been injured. They don’t get better with age, they get worse. They are always more susceptible to re-injury. If re-injury occurs it’s always worse the second time. Just as a chain is only as strong as its weakest link, an injured person is never the same again.

(Injuries to children) What is a boy? Between the innocence of babyhood and the dignity of manhood we find a delightful creature called a boy. Boys come in assorted sizes, weights and colors, but all boys have the same creed: to enjoy every second of every minute of every hour of every day and to protest with noise (their only weapon) when their last final minute is finished and the adult packs them off to bed at night. Boys are found everywhere – on top of, underneath, inside of, climbing on, swinging from, running around, or jumping to. Mothers love them, little girls hates them, older sisters and brothers tolerate them, adults ignore them, and heaven protects them. A boy is truth with dirt on its face, beauty with a cut on its finger. Wisdom with bubblegum in its hair, and the hope of the future with a frog in its pocket. A boy is a magical creature – you could lock him out of your workshop, but you can’t lock them out of your heart. You can get him out of your study, you can’t get them out of your mind.

The Power of the Jury

My friend, Peter Perlman, who is a nationally known plaintiff’s lawyer in Lexington Kentucky, has advocated empowering the jury to bring in the verdict that he has recommended. He urges them to seize the opportunity to make a significant and positive difference. He has argued it this way. “When you serve on a jury in many respects you have as much power as you may ever have in your life. When you vote, you are one of thousands. When you attend a school board meeting, you may be one of hundreds. But, when you serve on a jury, you are only one of 12. As one of the 12, you have the power to set the proper standards for safety that manufacturers, healthcare providers and others must follow. You have the power to set standards that affect the quality of life we enjoy in this country and in this community. Use your power wisely.”

Moe Levine once argued, “We exist for more than just to live, breathe and work. If all we exist for is survival, it’s not worth it. It’s not enough in this world of tension and fears we live in. If there is not the pleasure of living to accompany the hardships of life, what have you got left? What will her life be like? She will never be normal. She will always have pain, disability and worry. Her life has been robbed of pleasure. This must be translated by you into a fair appraisal of damages.

Circumstantial evidence

Like a child his face is covered with frosting, but keeps insisting he is not the one who ate the cake.

Viewing evidence logically

The defenses argument would be like my saying: “you know, if you take your glasses off, turn the lights down real low and squint your eyes almost shot, I look a little like Brad Pitt.”

It’s like your son showing you his report card pointing to the A on it, while covering the D’s & F’s so you can’t see them.

President Obama used this metaphor which can be applied to this subject. “I don’t know if you want to climb in and ride that car. It’s not going the right way. It wants to turn around and go back to where you were. “

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ALWAYS APPEAL TO THE JURORS NEED FOR A JUST OUTCOME THROUGH A COMPELLING STORY

As trial lawyers most of us need no convincing to agree that our appeal to the jury is best presented as a story. We know that since the dawn of time humans have used stories to make sense out of the world – to learn, to teach, to instill moral values and to memorialize events. That is our human nature. In fact, scientists have shown, through psychological studies, that if we present raw facts to people, they will immediately begin to make up their own stories to make sense out of of what occurred. They will look for motives for what was done and create a story about the facts. The challenge is how to convert a set of facts into a format that represents a compelling story.

To start with, we need to recognize that all of us, including judges and jurors, have “inner scripts.” We have values and understandings of what we believe is important or right and wrong which control our decision making. It controls how we receive and interpret information. It’s been correctly said that a trial is not a legal puzzle. It is a morality play of right and wrong. As trial lawyers we need to look for the moral imperative. Our story must be one of a wrong that needs to be set right. Therefore, motive is a key part of how people arrive at conclusions. We think our job is to prove what happened and negligence. But, to persuade, you have to prove why it happened

In addition, the facts should be presented as a story in a compelling fashion. How do we do that? James McElhaney had a column in the ABA Journal for many years. In writing about this subject he advocated planning before the opening statement how the story was to be told. He insisted the opening statement should be presented as  “showing” and not “telling.” He wrote:

“So, long before you plan your opening statement, start to put together the story of the case with ordinary words that make it come alive, and pull together the facts that tell the story of the wrong that needs to be set right. The most difficult part of all of this is to train yourself to write and to speak and think in verbs and nouns, cutting out the modifiers – the adjectives and adverbs – that we always seem tempted to use. Beware of the seductive lure of fancy words.”

Our cases should be presented to the jury as stories of conflict, confrontation and judgment. In addition, we know that a winning story puts the focus of the judgment on the other side throughout the trial. That’s why we start our story talking about the defendant and what the defendant did wrong and not the injuries to the plaintiff or the plaintiff’s conduct.

The structure of the story is important. A story has a beginning, middle and an end. The beginning involves the introduction of the conflict including the main character and an idea of what the story is about. The middle of the story involves a turning point where the “plot thickens” and complications arise. The end of the story incorporates three things: a climax, final confrontation and a resolution.

The difference between a narrative of facts and a compelling story is illustrated by this excerpt from the opening statement by my friend Gerry Spence in the criminal prosecution against prominent attorney Geoffrey Fieger for violating political contribution laws:

“The prosecution sees him only with one eye, and it’s the evil eye. Powerful people at the Justice Department in Washington decided to go after this good man who fights for the little guy. They sent eighty agents to conduct a nighttime raid in his law firm and to question terrified employees in their homes in order to try to create a case against him. You would’ve thought that he was  Osama Bin Laden. This is a case of abuse of justice. If the government can do this to Mr. Fieger, they can do it anyone of us. We don’t need the powers that are in Washington telling us what to do here. Thank God we have juries like you that don’t have to answer to anyone.”

In addition to our normal trial skills, let us learn how to be great story tellers for our clients. One of the best ways to do this is by presenting examples of opening, direct, cross and summation to focus juries for their reaction. Practice until it is as perfect as you can get it. Your clients deserve it,.

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POLITICAL WISDOM FOR TRIAL LAWYERS

In 2002 political advisers James Carville and Paul Begala published a book they entitled “Buck up, Suck up… And Come Back When You Foul Up.” Although dated in terms of its publication, most of the observations they make that relate to communication and persuasion are as relevant today as they were when they wrote it. While the book is intended as advice for politics and politicians, the fundamentals they discuss apply directly to trial work. Here are a few of their observations:

  • The importance of determination and never quitting. Nobody thinks of himself or herself as a quitter. And yet, most people who fail, do so because they simply give in. They get tired, or they are worn down, or they lose whatever zeal that got them motivated in the 1st place. There’s a reason pit bulls are the best fighting dogs. They’re not the biggest or the strongest or the scariest. They’re the most tenacious. So be a pit bull, not a Chihuahua.
  • Avoid the mistake of being an intellectual instead of a communicator with a message. One of the biggest problems smart politicians and business leaders have is that they tend to suffer from what the Rev. Jesse Jackson calls “the paralysis of analysis.” There so smart they can always see the other side; they can always analyze potential pitfalls and problems. (Lawyers do the same by a failure to focus on only key issues & ignore all other distractions)
  • Focus on the big picture. Forget irrelevant details nobody cares about. The lion is fully capable of capturing, killing and eating a field mouse. But it turns out that the energy required to do so exceeds the caloric content of the mouse itself. So a lion that spread its day hunting and eating field mice would slowly starve to death.
  • Be open, honest and genuine. A lack of openness breeds mistrust.
  • A trial is a race for telling the truth. Inoculate the bad issues by being the first to disclose them. If there’s something bad to be said about you, say it yourself first.
  • All trials should be stories. Facts tell, but stories sell. That’s why, from the Greek myths to the griots of Africa the history of humanity has been told in stories. If you are not communicating in stories you’re not communicating. You may be, presenting a series of facts, many of them perhaps important, but the chances of your audience remembering or being moved to do what you want are nil. A good story has a sympathetic protagonist and unsympathetic antagonists, a hero and a villain. It has conflict, which creates drama, then resolution.
  • Be short and simple. Be brief. In the modern media age, brevity is more important than ever. Smart people think that sophistication and brevity are mutually exclusive. That’s one of the many reasons we hate smart people.
  • The message and how we deliver it is of critical importance. We hear with our ears, but we listen with our minds.
  • Always comply with the rule of three. Three  may not be company, but it is a sound bite. For many of the same reasons that the mind retains information presented in contrasting pairs, we also tend to remember information presented in groups of three. Two’s a pair and four is a list. If you’ve got ten, they’d better be Commandments or we ain’t going to remember them.
  • Always use drama. Surprise them. Memorable things (especially funny things) have an element of surprise; they’re not what we expect. For a variety of other reasons, it’s even better for that twist to be self-deprecating.
  • Keep it simple, smarty.
  • Self-deprecation works.
  • The human mind is incapable of making decisions without an element of emotion. Be emotional.
  • If you want them to remember it, make it unique. Offer a message that is unique.
  • Repetition is the fundamental requirement for communicating your message. Repeat your message relentlessly. If the mantra of success in real estate is location, location, location, the mantra of communication is repetition, repetition, repetition. You know why politicians repeat the same best basic message thousands of times? Because it works.
  • There are always more than one way of viewing something. Find out how to frame your case problems into the right theme, Turn weakness into strength. Most great politicians were able to turn their supposed weaknesses into strengths. Jefferson was such a poor speaker, and such a brilliant writer, that he refuse to stand and speak in defense of his draft of the Declaration of Independence, and his silence was more effective than any orators eloquence. Abraham Lincoln used his less than handsome appearance and is rough, back country upbringing to cultivate an image of simple decency and integrity.
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