"It can hardly be questioned that closing argument serves to sharpen and clarify the issues for resolution by the trier of fact in a criminal case. For it is only after all the evidence is in that counsel for the parties are in a position to present their respective versions of the case as a whole. Only then can they argue the inferences to be drawn from all the testimony, and point out the weaknesses of their adversaries' positions. And for the defense, closing argument is the last clear chance to persuade the trier of fact that there may be a reasonable doubt of defendant's guilt."
A lawyer must be voluble.
I'm a farmer of words. The tongue is my plow. My cornfield? The courtroom.
Did the jurors get the message?
"Nothing great is ever achieved without enthusiasm."
Ralph Waldo Emerson
When I hear, I see.
When I see, I hear.
"Orientation of the word toward its addressee has an extremely high significance. In point of fact, word is a two-sided act. It is determined equally by whose word it is and for whom it is meant ... Each and every word expresses the 'one' in relation to the 'other' ... A word is territory shared by both addressor and addressee, by the speaker and his interlocutor."
"Does your baloney have a first name?"
Lyrics from an Oscar Meyer theme song (1)
SIZZLE or FIZZLE?
Ten things you can do
to improve your delivery of jury argument
in criminal cases ...
1. Practice expressing yourself. Eloquence makes a difference. Trial lawyers spend a substantial amount of their legal lives preparing and delivering extemporaneous jury speeches. Those who do it eloquently do so with practice. Practice is a long hard road. It won't make you perfect, but practice is guaranteed to make you better. Self-confidence and skill in communication comes from study, practice, and reflection. Take a tip from preachers, actors, newscasters, and politicians. They are all paid for talking. They are all folks who either practice what they are going to say before saying it (preachers and actors) or read their lines while appearing to be talking extemporaneously (newscasters and politicians). Preachers and actors rehearse their lines for many hours before they perform. Politicians and TV personalities learn to look into the audience or camera and read speeches and lines from see-through mirrors and TelePrompTers, all the while emoting sincerity and sagacity. Even though the politicians and personalities are reading lines written by ghostwriters, we viewers somehow believe that they are speaking from the heart. (In reality, many are akin to Milli-Vanilli.)
As a lawyer, you are paid for your words and your ability to persuade others with your words. You are a performer, not an actor. You are not about histrionics, stagy, over-the-top melodrama. Down at the courthouse, there are no see-through mirrors and TelePrompTers. There are no costumes and stage props that will be supplied by a costume designer and set decorator. There's no pan-cake make-up or special lighting to make you look good. You've got write your own material, rehearse it, choreograph it, dress yourself, and decorate your own set. Your job as communicator is a lot more difficult than the preacher, the thespian, and the politician combined. So, how do you get ready? How can you craft a sentence with the same content as your adversary but with more persuasive power? How do you connect with your jury face-to-face? How do you master the jitters? How do you learn to speak from the heart, the head, and the gut? How do you learn to communicate sincerely and with distinctive style? You've got to spend time practicing the one thing you must do best, speaking extemporaneously. You learn to speak well by studied practice. Devote some of the +61,000 hours of each year to improving your speaking ability. Speak in public. Take a course in opening and closing. Try taking a course in public speaking. Take a course in acting (1, 2 - presence), (3), not to be an actor but to learn about how to get and maintain your audience's attention. Tell stories in social situtaions. Try lots of cases, especially misdemeanors, where the stakes are not high and the punishment for a loss is usually no more than the plea bargain you turned down. [Note: Good lawyers argue extemporaneously. Extemporaneous arguments are those that are carefully well prepared and rehearsed in advance but are delivered without notes or text. The exact words of the body of an extemporaneous argument are not chosen. Only the beginning and ending are memorized to the point that they may be given anytime on command. There is always room in the body of the extemporaneous argument for improvisation occasioned by circumstances. The virtue of extemporaneous argument is that it is well crafted though not stilted like a memorized speech. The idea is to appear spontaneous in argument but to speak extemporaneously. For those who don't want to prepare, the alternative is to be the sort of lawyer who glances at his notes for the first time twenty minutes before delivery, never having thought through and rehearsed what he wants to say. This lawyer's argument is not extemporaneous. It is totally impromptu, i.e., done with little or no preparation and with nothing preplanned other than a few talking points. Imprecise, off-the-cuff jury arguments don't have much bite.]
2. Enhance the persuasive qualities of your speaking voice. Marcus Tullius Cicero, the greatest Roman orator, told us, "A good voice is a thing to be desired, for it is not naturally implanted in us, but practice and use give it to us. Therefore, the consummate orator will vary and change his voice."
Trial lawyers depend on their voices to project the message. If your words were warm bread, your voice would be the melted butter that makes the words more palatable. Treat your voice well. This means taking care of the vocal cords and larynx. Avoid vocal fatigue and voice stress. If you are chronically hoarse and have to continually clear your throat of phlegm, you've got a problem that may need medical attention. Beware of damage to the vocal cords and voice box caused by acid reflux (laryngopharyngeal reflux). For preventive maintenance in the courtroom, lukewarm water or warm tea with lemon is better for the vocal cords than an icy drink. They say Sinatra used to suck on lemon drop throat lozenges before facing his audiences. Buy a couple of packs and keep 'em in your trial kit and/or briefcase. You may not sound like Ole Blue Eyes, but they may keep your voice from sounding like a blender made puree out of your tonsils.Try some warm up exercises (1)., (2), (3), (4), (5), (6), (7), (8), (9), (10).
Project your voice so that it can always be heard by the juror who is farthest from you. Projection means raising the level of the sound you are making. With proper use of the resonators (nose mouth & voice box), you can project a whisper so it can be heard. There's a famous old silverback lawyer in Houston (my hometown) who is is truly a master of metaphor. He's a handsome gent, but he has a high-pitched nasal voice that sounds like he has a brick dangling from his willy. There's not much this lawyer can do about the pitch of his voice; so he makes the most of it in court by raising or lowering its level and by phrasing and enunciating clearly. He'll never have a canyon-deep, butter-smooth baritone voice, but he mesmerized juries for four decades with that squeaky voice. We can learn from this old master. Make the most of what you have in the vocal department..
You can use variations in volume (higher and lower), tempo (slower or faster), and pitch (higher and lower) in your voice to get your jurors to listen. If you notice that a juror's attention is wandering, a slight increase or decrease in volume, slowing of tempo, or elevation or lowering of pitch range of your voice will often recapture the juror's heed. Silence can be an effective form of communication. A brief pregnant pause will usually perk up the daydreaming juror. Aside from being good attention getting devices, temperate use of vocal variation typically has a positive impact on juror perceptions of lawyer credibility.
Many of us allow our voices to drop off at the end of a sentence. This decreases the persuasive effect of the communication. Concentrate on making the last word of your sentence the clearest. Notice how the best announcers emphasize the end of the sentence. To keep keep the sentence from tapering off, air power must be there. You can increase your lung power by reading aloud. Try reading as much on one breath as possible. Every time you read aloud, try to read a little bit more on that single breath. Be conscious of your breathing. Breathe with your diaphragm. Here's a little breathing exercise that may add oxygenating power and strength to your voice: Exhale completely, get your shoulder blades closely together, and inhale deeply. Do it a couple of times before speaking.
Utter your words distinctly. Articulate each syllable. Don not cement your words together. Be aware of the clarity of each word. As a person who tends to slur or cement his words, I find that it helps immeasurably to accentuate the pronunciation of words by getting my mouth around each word. Try overemphasizing your pronunciation (speech teachers call it "overarticulation"). It may seem to you that you are contorting your mouth and twisting your face, but the observer won't notice the difference, and your words will be clear and clean to your jurors.
Verbal fluency will also enhance juror perceptions of your competence, composure, and credibility. Fluency has been described as dynamic speech that is free of long pauses, hesitations, redundancy, parroting such as continual use of the word "okay" at the beginning of questions, and extraneous verbal fillers such as "uh," "hmm," and "um."
Good speakers have distinctive vocal style. Style is about the way we talk rather than what we talk about. If you have ever heard the ageless news commentator Paul Harvey's voice on the radio, you know what style is. You could probably identify Harvey's novel style simply by listening to him. His dramatic pauses, vocal inflections, word order, descriptive word choice, modulation, pace, and stylistic enunciation are unique. Yet, Harvey can tell a corny, mundane "Reader's Digest" story in a way that brings tears of sadness or sparkles of glee to the eyes of his radio listeners. Harvey's style might not work in court, simply because it deviates so much from the norm that jurors might deem insincere, at least at first. "Anyway," you say, "Only Paul Harvey can be Paul Harvey!" True. But my point is that every captivating speaker deviates somewhat from the the norm in style. [ If you are too young to know who Paul Harvey is, listen to Garrison Keillor on National Public Radio. He's the author of the wonderful Lake Wobegon books and host of "The Prairie Home Companion" radio show and 2006 movie. If you are a trial lawyer, you probably don't have time to hand around the house waiting for a radio program. So, go to Keillor's web site - The Writer's Almanac - and listen to the archives of his daily five-minute presentation, where he recites poetry and talks about great writers and historical figures. Ask yourself, what makes this gentleman's voice so appealing and distinctive. And if that doesn't do it for you, listen to the late Gregory Peck deliver the jury argument in To Kill a Mockingbird.] Long story short, we speak for the jury's benefit. Our goal as lawyers is to learn how to use vocal style to arrest the attention of and gain the power of influence over this small group of decision makers. 3. Maximize the use of your body and its accoutrements as tools to authenticate your message. [ Check out this terrific nonverbal dictionary of gestures, signs, dress, and body language cues.] The body is a messenger. Behavioral scientists call this communicative process "kinesic expressiveness." My favorite Roman, Cicero, the orator and lawyer, told us that changes in countenance of the advocate should harmonize with changes in the substance of the argument. Let's consider several aspects of our bodies that are useful in delivering a persuasive jury argument, e.g., costume (dress and grooming), movement, eye contact, facial expressions, smile, posture, and gestures. Dress: About dress, someone said, "You are what you wear." Wasn't it Shakespeare that said, "The apparel oft proclaims the man. (The bard would no doubt include the distaff if he were alive in today's politically correct world.) " These old saws are exaggerations, but they possess more than a grain of truth. Though we are each entitled to our personal preferences, our tastes, we are not entitled, as trial lawyers, to indulge ourselves at the client's expense. As times passes, you can gain the jurors' confidence and respect by other means than dress, but good clothes will make that all important "first impression." A disclaimer - I have no dress or costume code to posit here. There's not enough space, and there's room for disagreement about the what style of dress is appropriate. (Pages of the specific suggestions about persuasive clothes for lawyers can be found in the jury argument book. You'll find a few tips on the "dress for success" web site.) What I do know is that, to your jury, the image that you present is the image that the jury perceives. Part of that image is dress. It's a scientific fact that light travels faster than sound. Have you ever had the experience of meeting someone who looked bright until s/he began to talk? Of course, we all have. We form our initial impression based on appearances. It's human nature to "judge a book by its cover".- people do judge things and other people by their appearance. Think about how you want to be perceived by the jury, and dress accordingly throughout the trial. Don't wait until jury argument to think about appearances. Reflect your chosen image from the first day of the trial, e.g., voir dire, to the last, e.g. receipt of the final verdict. Know what you you are going to wear. Your wardrobe choices may vary from one portion of the trial to the other. For example, you may want to dress more informally when you visit with the jurors in voir dire than when you open and argue your case. Put your clothes out the night before. Personally, I would always try to dress in a way that would inspire trust in the folks I'm trying to persuade. A good rule of thumb for jury argument may be : If I die while making my jury argument, I will die well-dressed in the minds of my jurors. Not overdressed, simply well-dressed. Studies suggest that the jurors' perception of lawyer credibility are enhanced when the lawyer adheres to conventional dress. It doesn't make any sense for a persuader to be well-dressed if he or she is not well-groomed, e.g., well-scrubbed, coifed, nice smelling, with a minimum of wild hair springing from places where it's not supposed to grow. Some aspects of grooming are matters of personal taste. For example, some people think the comb-over of a bald pate conjures up the look of a door-to-door salesman; others may think it improves the overall look of the face. Advertisers have taught us more than we need to know about hair, skin, aroma, and all the other aspects of personal hygiene. B.O. and halitosis are taboos in our society. Need I say more! [Audience response: No. You've already said to much.]
Movement: Movement is an attention-getting device. Use movement and position in the courtroom to your benefit, not to your detriment. Some jurisdictions allow advocates to roam freely about the "well" of the courtroom when arguing to the jury. Other jurisdictions require you to argue from a lectern (a podium). See the discussion below. If you are allowed to take your body into the well, move with a motivated purpose. Take the advice of Cicero, who told us that the motion of the feet should be "rare and very moderate." Don't roam or pace purposelessly. Don't rock back and forth with one step forward and one step backward. When you do move make it at least several steps. Your goal is to use movement of your body as a communicative tool to help you interact with the jurors. Let it be an instrument that draws them into your message. Consider your movement during oral jury argument as equivalent to a paragraph or chapter change to a writer. Use movement as a signal to the listener that the subject has changed.
Try choreographing your movement to your words during rehearsal. Map or block out where you want to be at any given time when you are speaking with the jurors. Determine where you will start your argument? This is your anchor position. Start and end your argument from the same place in the courtroom. Think about the setting. If you are discussing the court's instructions to the jurors, it adds credibility to your message to have the judge as your backdrop. That means positioning yourself between the judge and jury as you display and discuss the relevant instruction.
To stage actors, the concept of position has always been an important aspect of the audience's focus of attention. We are all familiar with the terms "upstage" and "downstage." Use the same concept as you approach and withdraw from the jury. Try to stay within a conversational distance, i. e., 5 to 8 feet, from the jurors during most of your argument. Don't pace back and forth. Don't turn your back on the jury, and never talk to your jurors with your back turned toward them.
Do something visually graphic during your argument. For example, the prosecutor might reenact the offense or the defender might simulate what the accused claims the officers did to him during interrogation in the bowels of the station house.
In some jurisdictions, trial lawyers are required to argue from a lectern. Don't argue from a lectern, unless you have to. If the rules restrict you to the lectern, don't wed yourself to it. Don't lean on it. Don't clutch it. Move back a foot or so. If the judge allows you to be within "wingspan" of the lectern, come out from behind it to your right when you want to make a point or want to use movement to regain the juror's rapt attention.
Eyes: Eye contact is the way most people in the United States show sincerity. It's not true in every sub-culture in the country, but it is essential for you as a persuader. Eye contact with your juror doesn't have to last for more than a few seconds in each individual instance, but you have to do it. It's up to each juror whether to make and/or maintain contact with your eyes. If you try to make eye contact with a juror who clearly doesn't want to look at you, break off the contact and shift it to another juror Indeed, most listeners look at he mouth of the speaker rather than the eyes. But all of your listeners will know whether you were willing to look them in the eye when arguing your case. Never ignore your listener. By the time argument rolls around, you will have identified those on the jury who appear to be your "friends," i.e., those who will carry your arguments forward during the jury deliberations. It's very easy to direct your argument to these ostensible "friends," forgetting about the other jurors who seem unaccepting of your case. Chances are, you've got it wrong. The jurors you perceive as "friends," i.e., the ones you think are for you, may well be against you. When the dust settles, you may find that the scowling, negative head-shaking guy with his hands folded over his barrel chest may have been for you from the start. Don't lose him at the last moment by ignoring him. I suggest that you bite the bullet and talk at each of the jurors. Accept it as a fact that you must look at the jurors during most of your jury speech if you expect the jurors to listen to you during any of it. [Note: Aside from eye contact as a symbol of sincerity during argument, use your eyes throughout the trial as receptors of juror attitudes. It is said that great trial lawyers listen with their eyes.]
Face: Let's switch gears and talk about facial expressions. I once heard it said that of the things we wear, our facial expression is the most important. Nature has given humans faces that communicate feelings. We each have a face that we display in the courtroom. Do we allow our faces to reflect our feelings or do we mask our feelings with a so-called "poker face"? The answer to that question depends on the phase of trial. Trials are contests. It might seem that the best expression for such a high stakes game is the traditional poker face, i.e., no expression at all. Sometimes, you have to maintain a poker face. For example, you can't put your head on counsel table and start sobbing when a witness eviscerates your case on cross or direct. Your poker face must keep the jury from knowing how much damage has been done. But there are some junctures in a trial when you can relax and allow your face to be a great tool of persuasion. Your jury argument is a time for allowing your facial expression to reflect your feelings. If you argue with a poker face, you deprive the jury of a clue to your sincerity.
So, how can you use your facial expressions to gain trust and persuade? We've already talked about the necessity of eye contact. What can you do with your mouth? One thing you can do is smile when appropriate. This assumes that the teeth are attractive. A genuine smile (not the "cat that swallowed the canary" type) at the appropriate time is the least expensive and most crowd pleasing way to improve the friendliness of your face. One might say it adds face value. Your smile during argument has to be appropriate in the context of your words. When you smile and when you speak try to give the jury a full face or at least a 3/4 facial view of yourself. You lose influence when you smile or speak to the jury from your profile. The worst use of your face is no use, i.e., when you speak with your back to the jurors. Don't do it! Just imagine giving your argument with your back to the jurors or their backs to you. Enough said.
Stance and Position: As to stance, the basic rule is stand tall. Cicero called it "erect and lofty." Know in advance the spot in the courtroom where you will begin your argument. When the time comes, stand up erectly and move in a positive way to your spot. Don't say a word until after you have set yourself in a comfortable stance with your feet apart and one foot slightly in front of the other. Lean forward onto the balls of your feet. When you are in position, look at the jurors in the box with a brief z-glance, nod your head in acknowledgement, and only then begin to speak your memorized opening lines. See Tip Number 9 below.
Gestures: What about gestures? Here again I resort to lawyer Cicero who said of the perfect orator, " ... there shall be nothing superfluous."For obvious reasons, nervous gestures detract from your credibility. Meaningful gestures can enhance the credibility of your verbal message.Start speaking with your hands at your side or just below the lower end of your breastbone with the fingers of one hand touching the knuckles or joints of the other hand. Gestures come easily from this latter position. Try it. Use your hands. Don't hesitate to gesture for meaningful illustrative purposes. Reveal your palms. Don't point at any of the jurors. If you have to put your hands in your pockets, don't put both of them in at the same time. You hamstring your presentation if you have notes in your hands. Keep your notes (a 3X5 card with key words taken from your write-out) out of your hands. If you must use notes, put the index card near your anchor point, e.g., on the counsel table, the lectern, the edge of the witness box, or anywhere that it will be quickly available at a glance, should you need to consult it. If you have prepared, you won't need the 3X5 note card. At any rate, notes or not, your hands will be free.
Never forget the Cardinal Rule of Persuasive Body Language in argument: "Show 'em your eyes, your smile, and your hands."
4. Learn to "Tell and Show." Good movies are "show and tell." In film, the visual element is complimented by the spoken word. The opposite is true in jury argument. Good jury arguments are "tell and show." Visuals compliment your speech. Like Yogi Berra said, "You can learn a lot by watching." Prepare and use at least one, but normally no more than three, new visual aids or props that will enhance your spoken word during argument. By "visual," I mean an evidence-based visual that the jurors haven't seen before. It'll be something entirely new to the jury. Preparing it will force you to think about the heart of your case. One new visual is enough. Don't go overboard with a plethora of visuals that overpower you as the messenger. Tell and show, don't show and tell. Your job is not simply to operate a PowerPoint overhead display. Most of your visuals will be real or demonstrative evidence used previously in the direct or cross-examination and received in evidence, e.g., the gun, the photos, the business records, the diagrams, etc. The new visual may be a timeline that draws everything together. It may be a chart illustrating multiple instances of witness inconsistency. If reasonable doubt is a defense, defenders can always create a chart labeled "REASONS TO DOUBT" with a list of possible reasonable doubts. Come up with a visual that underscores and compliments your oral message. Don't ever use so much verbiage that you have put paragraphs in your prepared written visual. Follow the 6X6 rule that says you should never have more than six printed words per line and six lines per sheet on such visuals. Don't use visuals as verbal crutches that you read. If the visual is good and succinct, the jurors can read it for themselves a lot faster than you can read it aloud. This prop must accurately reflect the evidence. If you can orally describe something in argument, you can usually present it in visual form. Clear it with the court in advance if you anticipate that the judge might sustain an objection to you using the visual.
You may find props right under your nose. Look around the courtroom for objects you can use as visuals. It's hard for the opposition to object when the item is part of the courtroom decor. For example, the judge may have a scale or goddess of justice on the bench that can be the focus of your words. Other props that come to mind are pictures or seals that jurors can see on the courtroom wall. There's often a flag somewhere in the courtroom. A half-empty glass on counsel table can be worked into a burden of proof argument. If you are be able to tie some object that is already a part of the trial setting - the halls of justice - into your argument, your message will appear more appropriate and much less contrived.
Why do you enter real and demonstrative evidence during the witness examinations? The obvious reason is to flesh out the witness' testimony while she is testifying. There is another equally important reason. You enter exhibits and authenticate demonstratives so you can use them for "tell and show" during your jury argument. Put metaphorically, your words are the meat and your visuals are the sauce of your argument. ( I'm not sure why I'm caught up in these food metaphors today. Perhaps, the cook is preparing fried okra.)
The principals and parties to the lawsuit can be used as props. Stage your argument with the the interested folks present and lined up in the first row. If you are a prosecutor, have the complaining witness ( the "victim" to you ) and his family present. Investigating officers and upstanding government witnesses may also be good props, when their presence won't reflect unfair bias and you are going to refer to them favorably in argument. From the defense perspective, your client will be present. ( If your client has fled during trial prior to your argument, read no further. I haven't thought of a good defense argument for that predicament. ) It's always a good idea to have the people that care about the accused, e.g., family, supportive friends, character witnesses, present during your argument.
5. Use the right words at the right time. They say one picture is worth a 1,000 words. But when you think about it, it's words that touch our emotions. (1) Watch a tear-jerker movie with the sound turned off, and you'll shed nary a tear. But listen to the story without the picture and the water will flow. Words have enormous power when they are the right words spoken at the right time. See Senator Vest's "Tribute to the Dog" in the "Old Drum" dog-killing case. Used in the right way words can make a stone weep. Mark Twain uttered that famous quote that's contained in every discussion of public speaking: "The difference between the right word and the almost right word is the difference between lightning and the lightning bug." Twain uses the comparison to tell us that the right words are the ones we need to create vivid imagery. Yet we know that the rightness of words change with the generations. Today we say "delay"; in the past, it might have been "cunctation" (kunk-TAY-shun). "He's no stranger to prevarification" is a handy description for the lying witness, provided that our jurors understand the meaning of "prevarification." Words that would unite us and move us today may be irksome fifty years hence. We are looking for the right words for the right audience at the right time and place. When telling your story, choose the words that create concrete images of people and events. How does one discard meaningless words and discover the meaningful ones? Novel word choice and novel sequence of words are more likely to glean the juror's attention than the common form of expression. Novel wording doesn't mean using "sesquipedalian" (high syllable count) terms. Quotes are sometimes effective, as long as you don't overdo it to the point where your jury speech doesn't appear to reflect your sincere thoughts. Let's face it, sometimes other people have said things better than we can. ( I wish I had thought of the lightning/ lightning bug comparison. ) In your jury argument, you may want to "own" poignant words and novel phrases coined by someone else. That's a fancy way of saying that it's fine in oral jury argument to borrow words and phrases without attributing them to the source. Take a look at this book of 5500 sample arguments for prosecutors and defenders. It contains several thousand of my own concoctions, along with hundreds of edited arguments collected from other lawyers. As you read the samples, digest the ones you like, and spit the others out. Adapt or adopt, and, as far as your jury is concerned, those adopted and adapted arguments are being made for the first time when the jurors hear them from your lips. You now own them. Sometimes the secret for seeming creative, credible, and engaging is to conceal your sources.
Things to remember about sentences: Nouns and verbs are the heart and soul of sentences. Modifiers "foam" up your sentence with cotton-candy fluff. Remember high school English, where they taught us sentence structure. Stay in the active voice ( where the subject is doing the acting ), rather than the passive voice ( where the subject is being acted upon ). Short words in a short sentence that conveys a single thought are easier for the jury to digest than long words in a long sentence that conveys multiple thoughts. Go for the shorter Anglo-Saxon conversational words rather than the more lawyerly multi-syllabic words derived from Latin. Law school jargon should be explained to your jury. This is not to say that one should ever strive to speak in guttural monosyllables a la the Lone Ranger's sidekick, though Tonto did have the ability to boil it down into verbs and nouns. Sprinkle long words and complex thoughts into your argument like a condiment on meat. Spice adds flavor and variation, but too much spoils the dish.
Be cautious in using regional, cultural, or age-specific slang. Some of your jurors may not understand the meaning of slang. For example, hip-hop jargon may make little sense to a 55-year-old Iowa corn farmer. If you use slang, follow it with a parenthetical explanation in "everyman" language for all the jurors.
Look for magic phrases that express thoughts with imagination. You'll find them every day. Keep a pencil and post-it note pad close by. [If you find words interesting and would like to hear more about them, try Word to the Wise. The folks at Webster's will also be happy to email you a new word each day, defining it and telling you a bit about its derivation.] 6. Employ time-tested rhetorical devices to arrest the jurors' attention and interact with them. Use appropriate examples to clarify the complex. Pose a rhetorical question,e.g., "So how does (name the person) get off the skillet?" Use analogies to reduce concepts to a common denominator that is easily grasped. Use short stories to make a point, e.g., "Let me illustrate my point with a brief story." Tell a personal story to underline your message. Use parallels to compare and contrast. Use your years of experience to make yourself a character witness. Quote the opposition's witnesses. Refer to historical events that elevate your meaning, e.g., "It has been ( indicate the number of years ) since the Bill of Rights of our Constitution was ratified in 1791, but it's within your power to say that the basic principle that ( indicate the basic human right protected from government encroachment, e.g., 'Police are not allowed to enter our homes and ransack them without a proper warrant from a judge.' or 'Police are not allowed to torture us into making statements.' ) is still alive and well in this courtroom. Learn that silence at the appropriate time is an effective form of communication. At least, a closed mouth gathers no feet. Take some time and become familiar with figures of speech (rhetorical devices) that have been around since the days of Aristotle and Cicero (the Roman statesman/lawyer). Cicero felt that orators were almost actors. He may be right, but it may be healthier for trial lawyers to view themselves not as actors but as performers. Your argument will fail if the jury perceives you as an actor trying to force a point of view upon them. To be persuasive, you can't allow yourself to be perceived as focusing on being persuasive. When you use figures of speech or the words of others, use only those that seem natural and powerful. Those are the ones that will lend passion to your argument. For an exhaustive list of sources and some further discussion concerning logical reasoning, logical fallacies, classical rhetoric, figures of speech, etc., see the 36-page syllabus in my course Opening and Closing. If you have a few hours some afternoon, take a look at the fountainhead - Aristotle's Rhetoric. If you have a few days, look at the Perseus Project of Tufts University which contains all the magnificent classics, as well as fascinating material from the English renaissance.
7. Begin with passion, power, and a compelling theme. Jury speeches are intended to involve and guide the jurors to think and feel a particular way and do something based on their thoughts and feelings. Sadly, some lawyers deliver jury arguments that are about as exciting as a used Kleenex. Don't be that kind of advocate. Arrest the jury's attention with imagery and enthusiasm. Remember, you are there to transfer your emotion and passion about your case to your jury. If you want to exert influence to evoke a feeling about the case, you have to feel it first.
The tendency of the less experienced advocate is to spend the first few minutes of the argument, when all the jurors are watching and listening at their highest level, on mundane housekeeping matters or, even worse, in profusely thanking (fawning, anointing with butter and syrup) the jurors for their service. I call these ritualistic perfunctory actions "foam." Foam has no charm. Jurors can't get their mental and emotional teeth into foam. It won't make them willing and able to return the desired verdict. Leave the foam for later or, better yet, leave it out entirely.
What can you say in beginning? There are many stock openings that you can use to begin argument. We call them "hooks" or "grabbers." A speech teacher might call them "attention-getting devices." If you are at a creative loss in coming up with a hook or grabber, try filling in the blank in this statement: "This is a case where you have to decide (indicate the issue in the light most favorable to your side)." It's no excuse to say, "I'm unimaginative and about as appealing as a bottle of bilge water. I can't come up with a hook for the opening of my argument." With a dedicated effort and research, each of us can accumulate an arsenal of hooks that will work for us in capturing the jurors' attention.
Truth may suffer from the heat of its champion. Beginning with power does not mean that you have to start with a loud and aggressive mien. Raw power does not substitute for persuasion. It's quite appropriate to begin your argument with a modulated tone. The jury may be expecting fire and brimstone. The soft-spoken hook that builds in power may garner their attention precisely because it is unexpected. Think about the late Jimmy Stewart, as the easy-going, laid-back Upper Peninsula fly-fishing solo practitioner, in the terrific old 1950's film Anatomy of a Murder or the late and great Gregory Peck, as the unforgettably honest and courageous Atticus Finch, in the gripping To Kill A Mockingbird. Both actors portrayed lawyers who started softly but carried big sticks. In Anatomy, the lawyer on the other side (George C. Scott as Claude Dancer, the antagonist) displayed arrogance bordering on hauteur, hardly a winning attitude for a lawyer in argument.
8. Understand that the middle ("the body") of your argument is where you reason with the mind and affect the emotions of your jury. The middle (Never let it become a "muddle.") of your argument should be extemporaneous. By that I mean, the middle should be written out and rehearsed, but not memorized. The words you speak in the middle should be formed to express the thoughts you have written and rehearsed, but the words that you utter are those that occur to you as you are delivering the body of your argument. Tie your message, not only to your evidence, but to what you have said earlier in the voir dire and opening statement. If you try to memorize your argument word-for-word, it will sound stilted and rehearsed - the vocal equivalent of nitrous oxide (the stuff the dentist uses to put patients to sleep). Too, if you forget a tiny piece of a memorized argument, panic may set in. So, give yourself a break - don't try to memorize the body of your argument.
It's said that lawyers get to testify four times during a trial, i.e., jury selection (if they are allowed to question prospective jurors), opening statement (outlining the theory, theme, and story of the case), cross-examination (asking leading questions), and jury argument. It's the jury argument that allows us the most unfettered opportunity to speak out and to explain the who, what, when, where, why, and how of the case and to draw rational inferences from the evidence.
Most of the body of your argument will be based on the evidence or lack of it and on the credibility of witnesses. If there is emotion to be engendered, it will come from the evidence. As a famous English barrister said, "Remember, facts give rise to emotion. Emotion does not give rise to facts." You'll couch this discussion in the most persuasive way, using rhetorical devices and figures or speech to invigorate your thoughts and pleas.to the decision-maker. You'll also find it necessary to clarify the definitions contained in the judge's instructions to the jury. We work with legal definitions every day, but, from the juror's viewpoint, the court's instructions are often like trying to read Greek. 9. Finish strong with a call to action! Your goal as an advocate is to make something happen. Jury argument is the one time in the trial when lawyers are allowed to openly exhort the jurors and call upon them to do their duty. Prosecutors refer to it as "A Call to Arms" or "A Plea for Effective Law Enforcement." Defenders sometimes describe it as "A Call to Duty." or "A Clincher." By whatever name, it's the place in argument when you urge the jurors to do what you want them to do. The end is the place to motivate and elevate the jurors by mentioning their unheralded role and duty either: (1) to enforce the laws of society against criminals or (2) to ensure that any of us accused of crime by government is given his day in court. See Sample 3. Build the jury up. Encourage it. Elevate it. Give it confidence. Inspire it with courage and faith in its ability to arrive at the desired decision. Get into the jury's world. Ask the jury to visualize the consequences, e.g., "Think about what this defendant did!", "Think about the consequences of convicting an innocent man!", etc. Defenders may want to provide the jurors with suggestions about how they may achieve a fair system for deliberating and voting. See Sample 4. Propose that the fair thing to do is to use secret ballots for their major decisions, e.g., electing a foreperson and voting on a verdict . Point out that this avoids putting undue pressure on anyone. Also, the defense can urge the future foreperson to ensure, before any ballots are cast, that every person on the jury is allowed to orally express his or her feelings about the evidence. Remind the jury that, according to Webster's, the word "deliberation" means an unhurried, careful, and thoughtful discussion and consideration by a group of persons of the reasons for or against a proposition; to "deliberate" means to think about and discuss issues and questions carefully.
Know exactly what your exit (dismount) line is going to be. There's an old proverb that says, "Think of 'going out" before you enter." Your opening (mounting) lines and your closing (dismounting) lines are the only ones you'll ever need to memorize. Yes, you'll need to commit them to memory and be able to recite them at a finger snap. Why? Because you want to get them right, and you want them to be memorable. In closing with strength, you are relying on the psychological principle of persuasion known as "recency." Recency simply posits that the jurors are going to remember what you say at the very end of your speech longer than what you said before. Don't gamble with recency. Work on the last few lines. You may choose to use a figure of speech to juice it up.
10. Keep it short, and keep track of your time. It's said among trial lawyer's that among all stratagems, knowing when to stop is best. "Talk less, say more." Avoid screed (long, monotonous diatribe). This is your goal with argument. I've taught criminal trial advocacy at a local law school in my town for four decades. Student-lawyers in the course learn to keep jury argument short, simple, and succinct. The same is true for the CLE trial advocacy programs offered to practicing lawyers across the country. Lawyers in these advocacy training programs are required to adhere to strict time limits in making their jury arguments. Do the same with your argument. Why? Because short and succinct is usually better, and because most courts will impose time limits on you. Have you ever been in the audience watching the long-winded speaker who didn't know when to quit? It's a lot worse than watching a rat pass through a boa constrictor and the rat is a long way from the tail? If so, you may have gotten up and left. Jurors have no such choice. They have to sit and endure. But their displeasure will dilute the speaker's message. At a certain saturation point, even elegant eloquence becomes boring to the listener. From the listener's position, this is the point when enough becomes too much. At this point the more the speaker says the less the jurors will remember.
Here's a tip that may help you monitor your time while arguing or rehearsing. For many years, I have used a small battery-operated digital stopwatch to keep track of elapsed time. It's not a wristwatch, but does fit comfortably in the palm of your hand or on the corner of a lectern or a counsel table. It can be set to count forward or backward. In rehearsal, set it to run backward, starting with the time the judge will allot you, and have it count backward to zero. (It will buzz on zero.) In trial, set it to run forward. A downward glance tells you at any juncture how much time you have used. Courtroom lawyers have a love affair with the spoken word that overwhelms the sense of time. That is good because we get paid for talking. But it is disconcerting, because five minutes seems like one when you are communicating with your jury (As Einstein said, "That's relativity.") You may feel driven to be so thorough in covering your case that all that's left is the gristle, the hooves and the snout, the indigestible stuff. This little timing device will allow you to finish speaking before time runs out. Without it and a timed rehearsal, odds are that you'll still be yapping when the judge interrups with a stern, "You're time has expired, counsel." I get my digital timers at Radio Shack. The last one cost $12. It's also very handy at rehearsal when you are trying to pare your argument down to a reasonable length.
You may agree with me that jurors appreciate the lawyer who finishes on time without having to be told by the judge to sit down. Punctuality reflects the prepared mind. You don't have to cut your argument short, but if you can finish a minute or a few seconds before the judge calls time, you will always look good!
How much time you will be given to argue varies from court to court and state to state. The amount of time you get will customarily be influenced by the nature and gravity of the offense charged. The trend around the country seems to be to cut back on the time that the trial advocates have to address jurors. In some parts of the country, judges afford each side as little as 15 minutes in a jail-time misdemeanor and 30 minutes per side in ordinary felonies. Perhaps, it's because modern judges are not very impressed with what we lawyer's have to say and the way we say it at this final stage of the contest. Indeed, those who make the worst use of their time are sometimes the ones who are the first to complain of its shortness.
When you are thinking about how long to argue and when to stop, recall the old adage that "There is no iron that can enter the human heart with such stupefying effect as a period placed at the right moment." In the same vein, I once heard it suggested by a wise and wonderful trial lawyer that our arguments should be guided by the axiom: "Stand up to be seen, speak up to be heard, sit down to be appreciated." The idea is simply that you want to stop talking before the jurors stop listening.
Timing comes up in another context. When you deliver your argument can affect whether your jury will be predisposed to listen. It's difficult to pay attention when your stomach is growling for lack of food or bulging from being stuffed. The hungry juror is thinking about lunch. The hungry juror is apt to be an angry juror. On the other hand, the stuffed juror is a bit too placid, perhaps drowsy. So, try to argue in mid-morning, e.g.,10:00 a.m., or mid-afternoon, e.g., 2:00 p.m., when the jurors' body chemistry is most receptive. If you go second and the opposing lawyer is given more than 30 minutes to talk, ask the judge beforehand to give the jurors a 5 minute water and restroom break before you begin. A thirsty mouth or a full bladder, like a demanding digestive sytem, is another happenstance that can distract any juror, e.g., the length of argument should not exceed the endurance of the human bladder. You want your jurors in the mood to listen.
11. BONUS ADVICE: Each of the preceding ten suggestions relates to one thing - your interaction with the jury. The thing to remember is: The only audience that you have in the courtroom is the jury. It's their feelings and emotions, not yours, that counts. Only the jury can satisfy your needs. The jurors are all-important. It's all for them, no one else.