If you are a rookie lawyer trying to decide what to say in your jury argument, do be on constant lookout for arguments that have shelf life. These are the arguments that the jurors will carry with them and chew on during deliberations. How do you find such arguments? Do hang around the court house watching good lawyers trying cases. One of the best ways to learn a skill is to watch an able person perform the skill. Do watch lawyers giving arguments on the Open Session portion ofCourt TV (now TruTV). The cases are always interesting, though some of the braggadocio, quick-to- judge commentators (excluding Ashley Banfield, Fred Graham, Jack Ford, and Beth Karas) sometimes grate the nerves by spending their air time sucking the marrow out of the real lawyers. Some of the lawyering in the cases selected for Court TV is exceptional. It's almost always competent.
Do be aware that we create swanky new and innovative arguments
by being exposed to stock and standard ones.
Do read poetry, literature, and books of quotations. Do be on the lookout for the right words that you can use as a case theme at the right time.
Do study your state's pattern jury charge definitions of the crime and defenses that will be submitted by the judge to the jury at the conclusion of your case.
Do recognize that one of the basic principles of persuasion is that you must appeal to all the senses: Behavioral scientists tell us, for example, that people differ in what influences the opinions they form. Many people learn more through visual stimuli than they do by the aural (sound) sense. That means you do need to use a few persuasive visual aids or exhibits in your argument and opening. As they say, seeing is believing.
Do allow the jurors to touch and handle your material tangible exhibits that will be the focus of your argument. This means making sure that you urge the jurors to ask the court for the exhibits that you deem important. [ Some judges will not send the exhibits back to the jury room, unless the jurors specifically request the exhibits. Some juries don't understand that they can ask for the exhibits during their deliberations. It's up to you to tell them in argument that they have this right and to urge them to exercise it.]
Do appeal not only to reason but to emotion and shared values. Matters of the heart and the spine influence matters of the head. As the old bromide goes, " A mind all logic is like a knife that is all blade. It makes the hand bleed that uses it."
Do understand that your perceived integrity (ethos) is part of the message the jury receives.
Do look good! Dress to impress your message upon the jurors. To the outside world, we are what we wear. The image that we present is the image that will be perceived. Think about how you want to be perceived by the jury. Do you project that image? Take as your motto; "If I die in front of this jury, I will die well-dressed!"
Do practice speaking in front of juries and any other groups that will invite you to speak. Accept every offer to speak in public. Do take a course in public speaking at a local college or university. Do join groups, e.g., Toastmasters, that emphasize honing public speaking skills. You have to prepare for and practice speaking in public in order to be good at it.
Do practice your jury argument (and opening statement).
If you practice in a jurisdiction that has a bifurcated or trifurcated trial system, where the accused convicted at a guilt phase will then face a punishment hearing before the convicting jury, do prepare and practice your punishment argument along with your guilty/not guilty argument.
Do know roughly how long your argument (and opening statement) will last. Do get yourself a stop watch and rehearse until you can finish a minute or two short of the allotted time limit. Do try to give the jury back a bit of time, .i.e., do finish before the red light glows or the buzzer buzzes. [This means you need to find out in advance how much time the court allots for opening statement and jury argument.]
Do keep your jury in the loop. Work with them, not for them. Talk to them, not at them. With your jury, strive for interaction rather than reaction.
Do align yourself with the jury by using the first person plural "we." For example, "We have learned." is preferable to "You have learned."
Do keep your word to the jury. If you have made an earlier promise to address a subject in argument, do it. If you have promised that a particular person, e.g., the defendant, will testify and the person does not testify, do explain to the jury why you did not keep your earlier pledge.
Do recognize that you won't be able to change the ways jurors think. Present your argument in a way that caters to their world view, not yours. To do this, you must consider the juror's values, wants, and needs.
Do take charge of the courtroom if you are free to move about it. Do use your power. This means that prosecutors have the power to point at the accused and defenders have the power to point at prosecutors. Prosecutors do have the power to walk over and deliver part of their argument while glaring at the miscreant-defendant, and defenders do have the power to look accusingly at the prosecutor when talking about police overreaching, crime lab screw ups, etc.
Do use the present tense when telling stories of the case. You motto for storytelling is the title of an old TV news show: "You Are There."
Do use the the active voice or verb form when you want to emphasize what a person or thing did, rather than emphasizing what was done to the person or thing. It's simple to talk in the active voice. Just make the person or thing the grammatical subject of your sentence and have your verb asserting that the person or thing performed the action, e.g., X hit the ball, X shot Y. From the standpoint of telling your story, the active voice is more gripping because you are putting your characters in action, rather than allowing them to be passively acted upon. You'll need to know the purpose of your sentence in order to decide whether you want the subject, person or thing, acting or being acted upon.
The passive voice is the opposite of the active voice. In the passive voice, the grammatical subject of the verb is subjected to or affected by the action represented by the verb, e.g., the ball was hit by X, Y was shot by X. Grammatically speaking, the passive voice is constructed from the forms of the verb "be" and the past participle of the principal verb, e.g., The refrigerator was damaged by the rising flood water. The passive voice is useful when you want to emphasize the action, e.g. damaged, and its object, e.g., the refrigerator, while low keying the agent performing the action , e.g., the rising flood waters. But passivity indicates a lack of energy or will. Expressing a thought in the passive voice usually requires more words than the active voice. There may be times when you want to emphasize the passivity of the subject (person or thing doing the acting). In such event, use the passive voice. Otherwise, stick to the more dynamic active voice.
Do flesh out the characters in your story of the case. Every trial story has a plot and actors (players, characters). To keep the story from being superficial, describe the characters in the manner most supportive of your version of the plot. The evidence must support your characterization of the players. Of course, your description of the players or characters in the story may differ from your opponent's. The prosecution's protagonist may be the defense's antagonist, e.g., the complaining-witness as the prosecution's victim (protagonist) and the defense's provocateur (antagonist), the accused as the defense's victim (protagonist) and the prosecution's wrongdoer (antagonist).
Do more than simply provide information to the jury. Let your objective be to influence their decision. Mobilize the words of your argument so they exert a positive, persuasive force. Allow yourself to vocally oppose injustice and unfairness. With crimes of violence, prosecutors will try to engender fear.
Do condense it. Get to the core of your case. You can't say everything, but, if you want a verdict, you must explain to the jury why you are entitled to it.
Do tell the jury not only what the evidence is but what the evidence means. Your job is not simply to bring the facts to life. You must also interpret the evidence for the jury. Help your jurors understand the relevance of the facts..
Do develop a rich and fresh supply of persuasive arguments and opening statements, rather than using the same old tired arguments over and over. Be innovative and constantly on alert for new ways of convincing others. Do know you are going to say and how you are going to say it before you stand up.
Do believe in what you are saying. And do act like you believe in what you are saying.
Do distinguish between evidence and facts. Explain how all evidence is not facts, but all facts are based on evidence.
Do be succinct and substantive. Cut the foam, fluff, fizz, and fuzz from your argument. Create indelible mental images of your story. The words can be be short, but they must have pith.
Do visualize your case as a four panel cartoon. Ask yourself what four mental images you would want the jurors to think of when they deliberate your case. No matter how poor an artist you are, draw and color those four cartoon panels on paper. With your argument, paint these images for the jurors. [For many years, I've required my students to do this. It works.]
Do talk about facts and the lack of facts and what inferences should and shouldn't be drawn from the facts. Explain that facts in a vacuum don't have a clear meaning. Their meaning must be interpreted by the mind in order for their significance to be discerned.
Do find out how much time you will have for argument, and practice giving your complete argument within the allotted time frame.
Do take your focus off of yourself and put it on the jury. It's not about you. You are there to help guide and convince the jury. That's all they want from you - your help in interpreting the evidence. Concentrate on helping them come to the right decision from the voir dire through argument.
Do use information you got from the jurors at the voir dire stage and later in the trial to help you craft an argument that speaks to each juror as an individual. You can't address a juror by name in your argument, but by oblique reference to facts in a juror's background you can certainly let a juror know that you are reasoning with him or her as an individual.
Do answer the the questions you think the jurors would like to ask you, if they were allowed to question you during argument.
Do get rid of the chaff in pretrial preparation, so you are left with only the wheat. Cull through the evidence for the meaty facts that will give you the substance of your jury argument.
If you are a prosecutor, do tie up all loose ends of your case and present your theory as simple and uncomplicated. It needs to make sense to the kids at the skate park and the seniors on the assisted living floor of the nursing home. If you are a defender with only a reasonable doubt defense, loose, frayed ends of prosecution evidence and a complex, Byzantine prosecution theory of the case are positives.
Do assess, grade, and order your arguments in a medium, e.g., a computer or post-it notes, that will allow you to periodically cull, cut, and paste the various arguments that you may give according to their logical and persuasive value, up to the day of the arguments.
Do recognize that form can be as significant a persuasive influence as substance.
Do tell interesting personal stories (anecdotes) that illustrate your point. These verbal pictures engage the jurors in a narrative, humanistic way and give them insight. See the sample arguments page. Do use rhetorical questions with answers as well as other persuasive figures of speech, e.g., metaphors, similes, feigned refusals, declarations of impossibility, judgment of the jury, repetition of the last word in one clause or sentence at the beginning of the next, concluding sentence that diminishes affect of what has been previously said, anticlimax, antipersonification, repetition of word or phrase at end of successive clauses, orally deliberating with yourself, turning your speech from the jury to address an abstraction, cacophony, climax, exclamation, hyperbole, irony, parallels, etc. See JACC for an in-depth discussion of these and many other figures of speech. Do use simple understandable examples and analogies when you are trying to convey abstract legal concepts. Do consider using "role and duty of the jury" arguments toward the end of your argument to inspire and elevate the jurors and make them proud of the service they are performing. Do begin with strength. Do start your argument with a persuasive "hook" or "grabber'' that will gain and keep the jury's attention during the first minute or two of your argument. Put the boilerplate "Thank you for your service" messages on the back burner or forget them altogether, wholly, and completely. If you are going to try to lard the jury with a "role and duty of the jury argument," use it later. .
Prosecutors, do develop a group of "call to arms" or "pleas for effective law enforcement" arguments for the concluding portion (peroration) of the argument.
Do stay within informal conversational distance (5-10 feet) from the jurors during argument. Move in and out without pacing.
If there is a lectern, do get away from it! Here's an idea: If the judge enforces a "wingspan rule," turn the lectern one-quarter turn so that it is to your immediate right or left, leaving you facing the jury without any encumbrance or impediment. If you need to refer to your notes, you have only to turn to your left or right.
Do show the jurors your eyes and your hands. Make eye contact with each juror. Let your gaze be friendly, not a stare. When you show your hands, do use your open palms to indicate openness.
Do use one hand or both to gesture.
Do allow your facial expressions to reflect the mood or emotion, e.g., anger, curiosity, disappointment, fear, seriousness, levity, concern, etc., that is consistent with your words.
Do use affirmative and negative head nods to enhance your message.
Do use inflection and pauses (momentary silence) to underscore (emphasize) your point. Suggestions re persuasive variations in voice are explained elsewhere.
Defenders, do consider physically touching your client in the jury's presence during argument. You want to avoid any sexual overtones that might flow from the contact. So, think how the touch will look to the jurors. For example, if you are an old male codger, long in the tooth, you can feel relatively free to touch your burly client on the shoulder. If you look like the late Gregory Peck and your client looks Michael Moore, you can get away with it. But what if you are a young female defender and your client is an attractive young male or vice versa? Can the young female lawyer stand behind the seated male client and put a hand on his shoulder without any implicative sexual overtones. If so, do it.
Do identify the major problems with your opponent's theory of the case, and
challenge its weaknesses point by point.
Do listen, listen, listen to the opposition's argument. You may have an excellent reply to it.
Do be enthusiastic about your message!
Do conclude with a strong message.
Do get rest (sleep), exercise, and proper nourishment during the days of trial. You don't want to drag yourself across the finish line. You want to be in full stride when you argue your case.