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.
.
Do's & Don'ts
features ...
Don't be satisfied with the low-hanging fruit packaged in rhetorical Styrofoam.Don't give the same jury speech with the same tired old arguments, emotional appeals, stories, examples, and visuals over and over in every case you try. It makes your presentation boring and your opponent ,knowing you are predictable, will be ready with some devastating counter-arguments. Look for fresh persuasive material.
Don't make impromptu, shoot-from-the-lip jury arguments. Of course you have to be flexible enough to ad lib if the necessity arises, but your argument (and opening statement) should never be a giant ad lib. Prepare and practice an extemporaneous jury speech well in advance. With the exception of your opening and concluding paragraphs, don't memorize your argument. Let the words occur naturally when you deliver your jury argument, but know what you are going to cover and how. Do a write-out and a key word outline. See Preparation. Rehearse out loud from two to five times.
Don't read your argument! Never, never, never read your argument (or opening statement) to the jury!
Don't throw a wet blanket on your story in argument or opening statement by recounting in chronological count-by-the-numbers order what each witness said. Tell your story in a seamless narrative web.
Don't let your impact visuals overpower you.
Don't allow a visual to go unaccompanied by oral explanation. Visuals don't stand alone.
Don't create a raft of visuals that you can read to the jury, and thus avoid preparing to speak extemporaneously. Your argument centers on you; the prepared visuals are to enhance your oral argument not supplant it.
Don't put long paragraphs of words on your demonstrative visuals. When preparing visuals for argument, follow the well-known "5 and 5" rule of public speaking that says your textual visuals should contain no more than five lines of text and no more than five words per line. [Obviously, this no-no concerning overly wordy visuals does not apply to real evidence such as autopsy reports, hospital records, letters, and other documents of real evidence. Still, even with real evidence, be ready to zoom in and enlarge the key portions of the writing on the video platform or use callouts of important text with your computer graphics program, e.g., PowerPoint.]
Don't forget the jurors. You played a part in picking these individuals as your decision-makers. Read them throughout the trial. They are of primary importance. Your argument is called a JURY argument because it's for the jury. It's not for you. Talk at your jury's level, but not at the expense of eloquence.
Don't overestimate the jurors' power and willingness to understand what your evidence means. Don't ask the jurors to assume too much. Where is available, offer evidentiary proof that will back up the claims and contentions you will make in jury argument. Spell it out.
If you are asking the jurors to presume the existence of one fact from proof of another fact, you'll need to explain why one fact logically flows from the other. Interpret the factual circumstances in a manner that makes clear what logical inferences should be drawn from them. Remember, jurors are only open to what they can cope with. If you overshoot the field, you'll lose your communicative connection.
Don't act like a lawyer or a stuffed shirt law professor. People identify and make friends with other people who are like them. Who wants to be friends with a lawyer? Act like a, plumber, a poet, a pipe fitter, a printer, or a part-time human anything, just not like a lawyer.
Don't say "I know," "I think," "I feel," "I believe," or any other "I" that reflects your personal knowledge, belief, or opinion about evidence. This is a no-no. Instead, look at the evidence through the juror's eyes and simply state that the evidence proves the fact. Another way of doing this is use the phrases "We know from the evidence.," "Don't you think," "Don't you feel," For example, if you want to say that you know from the evidence that the car was red, resist the temptation and say "From the evidence we know that the car was red."
Don't run aground with an unnecessarily complex theory of your case. In pretrial, reduce your theory to a short, one-paragraph explanation, clear of obstacles, that can be understood by a group of bright twelve-year olds. If your case is complex, make it simple by using informative visuals, e.g., timelines, relationship charts, element charts, evidence charts, etc.
Don't ignore the weaknesses in your case. If you are reasonably certain that the opposition will argue certain issues as barriers to your success, try to get the jump on your opponent. Address the problems and cast them in the light most favorable to your position. The idea is to show the jury that any weaknesses in your case are nothing more than minor speedbumps on the road to the desired verdict.
Don't misquote evidence or try to twist or interpret it into a form that doesn't have legs.
Don't contest the uncontestable. Don't dispute the indisputable. Don't advocate the unbelievable. If you do, you'll lose the jury's trust and maybe the case.
Do not tell the jury what you say is not evidence. It belittles your argument. You want the jury to accept your word as gospel.
Don't use long words when short words will do.
Don't rely on cliches to make your point.
Don't hesitate to be a "phrase maker." Be on constant lookout for the new ways to express a thought. [When you read or hear a new turn of phrase, write it down; otherwise, you are sure to forget it. Make yourself a jury argument notebook.]
Don't carry a pen, pencil or legal pad. One of the annoying distractions for jurors, is the lawyer who toys with a pen or pencil. It's okay to use a sharp pencil as a pointer on the video camera platform, but ditch it when you are arguing. [Obviously, pens and pencils are not digestible. So, chewing on them has no purpose other than to reveal to the jurors that you are as nervous as a lab rat.]
Don't rattle your jewelry "like an impatient pony jangling its harness." Similarly, don't rattle the change in your pocket or play with other things that might be in there.
Don't pace from side to side. [Move in and out.]
Don't stroke your face, arrange your hairdo, or play with your facial hair.
Don't fold or wave your arms.
Don't employ hasty jerky gestures reminiscent of comedians in silent movies.
Don't roll your eyes, glare, smirk, or sneer, in disbelief, dismay, or disgust.
Don't yell! Your voice must be strong, but be cautious even in raising it above conversational tone. The level and quality of your voice is a persuasive tool to be used with thought. The jury is a captive audience that must remain silent during the trial. Jurors have to hear your voice. Don't make that experience unpleasant. .
Don't act for stage effect. You are a performer, not an actor.
When the opposition scores heavily with a strong argument, don't flinch. Even though you feel inwardly crushed, don't show it on the outside. Don't allow your attitude, posture or facial features to reflect defeat. Remain as cool as the proverbial center seed of a cucumber.
If you are going to touch your client, don't do it tentatively like someone making up his/her mind whether to pet a dog that has a reputation for biting. See above under "Do's.
Don't appear inattentive and detached. When the opposition is arguing, look at the jury, not at your shoelaces.
Don't paint crucial word pictures with spray paint; instead, paint those key verbal images with factual brush strokes.
Don't ever marry a person until you've seen them drunk.(Did you notice that this one is entirely irrelevant to the subject. Just testing your attention level.)
Don't be afraid to make references to famous words, particularly when someone has said it better than you can. Don't overdo the attributed quotes, the ones where you cite the author. Three relevant attributed quotes is the very maximum an average jury argument can bear. The jury must feel that your argument comes from your heart, not from Bartlett's book of quotations. Don't use the "quote/unquote" method to introduce an attributed quote.
If you thank the jury in argument, don't overdo it. Don't fawn or brown-nose.
Don't make the mistake that so many lawyers do in assuming that the court's instructions make sense to the jurors, simply because they make sense to you.
If you discuss the jury instructions during argument, don't get mired in law school legalisms that will confuse and confound normal people (This admonition assumes, of course, that you have a jury of normal people.).
Don't avoid eye contact when arguing to the jury. If you can't look 'em with your eyes, they are not going to believe you, no matter what your mouth is saying.
Don't hesitate to look at and talk directly to the juror(s) you identify as being with you. But don't slight the ones you think are "agin" you.
Don't talk too fast. Machine gun speech patterns that chatter like a squirrel on amphetamines.won't be understood. Unless your brain and vocal cords are hot-wired together a la Robin Williams, you'll eventually choke on the Niagara of words. And worse, the jury won't follow what you are saying.
Don't try to repair a run-on or overloaded sentence that poorly expresses your thoughts. Simply stop and say, "I'm not making myself clear. Let me rephrase that thought more clearly."
Don't say, "I believe." Personal opinion of the lawyers is objectionable argument, e.g., prosecutors are not allowed to say, "I know the defendant is guilty because God's spirit tells me so in my heart." Instead, act as though you believe every word you are uttering to the very core of your being. Try saying: "The sworn testimony shows" or "Doesn't it make sense" or "The logical conclusion is."
Don't lose your opportunity to persuade during argument because you have neglected your homework. Remember the Marine Motto: Fail to prepare, prepare to fail and the well worn "Five P Rule" - Prior Preparation Prevents Poor Performance.
Don't assume a burden of proof that you do not have.
Don't appear bland. Be pleasant, upbeat, and enthusiastic. Enthusiasm is not the same as excitement.
Don't get angry or mad , except on purpose.
Don't let your ego get in the way of your message.
Don't apologize for your shortcomings.
Don't say you are unprepared.
Don't say you are not a good speaker. The jury may believe you.
Don't tell laugh-out-loud jokes. You won't be taken seriously, even if they are kind of funny.
Don't eat heavily before arguing.
Don't ever ask the jury a rhetorical question unless you are willing to have your opponent answer it for you. [When you so ask a rhetorical question, answer it.]
Don't shoot from the lip. A casual and unguarded word spoken, like a stone thrown or an arrow shot, cannot be recalled.
Don't hesitate to allow some liveliness into your vocal pattern. Your voice is a weapon in your persuasive arsenal.
Don't settle for the ordinary. It's worth the risk to aspire to elegant eloquence. If you use a big word, you can always define it by following it with a commonly understood synonym. The important thing is the influence your words have on the jurors. You are shooting for the right words in the right order.
Don't be too slick. There is an old proverb that says, "It can be useful, if you are wise, to seem slightly foolish." To me, that means - Don't be too slick! Be clever, be bold, but don't try to appear more clever than you are. If you are really clever, put a lid on it. Too much cleverness and you are being slick..
Don't be reluctant to recast the unfamiliar in a familiar form to give your jurors the flash of insight they need to make a correct decision. It's human nature to reason by analogy (We do it in law by the use of settled case precedent.)
Don't let the meat get lost in the sauce. The facts are the meat. Your style of delivery is the sauce.
Don't go down rabbit trails created by the lawyer for the other side. Sometimes your opponent's arguments merit reply. But be wary of spending the juror's valuable time jousting with windmills Stay with your message and resist sidetracks that lead nowhere.
Don't ramble.
DO'S
Jury Argument and Opening Statement
DO'S & DON'TS
Forensic techniques that work - and don't
copyright © 2001 Ray Moses
all rights reserved
&
DON'TS
