TACTIC  5:   LET INDIVIDUAL JURORS KNOW YOU ARE TALKING TO THEM.

You can't refer to jurors by name in argument, but you can speak subtly to certain jurors by referencing subjects about which you know the juror is familiar. The idea is to take the tone of the company you are in.  To do this, you need to know as much as possible about the particular jurors.


TACTIC 6:   REINTRODUCE YOUR CLIENT (OR THE VICTIM ) TO THE JURORS

At the close of the case the jurors have been exposed to lots of facts. Sometimes it's easy for your audience of jurors to get so lost in listening to facts that they forget that the case is about people. Consider whether you should spend a few minutes reintroducing your client (the accused) to the jurors. If there is any favorable evidence humanizing the client as a flesh and blood person, argument is your last opportunity to underscore that favorable profile. If you are going to personalize your client, you may want to move to his side or stand behind him when making the humanizing argument.

By the same token, argument is the last opportunity for the prosecution to reintroduce the victim in a way that reminds the jurors that a person, similar in many ways to themselves, suffered harm or injury. If there is a living adult victim who testified in the case, make sure that s/he is present during argument and seated on the front row of the courtroom.



TIP 2:   "TELL AND SHOW" RATHER THAN "SHOW AND TELL."

One of the dangers of allowing your presentation to become a "Visual Argument" is that your story risks taking a backseat to visuals that distract the jury from the human message that you must deliver in argument. We all recognize the powerful influence that the sense of sight has to jurors. Eyes allow us to evaluate, to size up , and to confirm what our ears are hearing. Some people are eye-learners. Some are ear-learners. But the role of visuals in jury argument is to help you get your point across or tell your story. The primary focus in argument is always your spoken word. Visuals are supplementary. Visuals illustrate, support, clarify, choreograph, confirm, and position your oral story.

Trials typically attempt to reconstruct a previous event that was not otherwise recorded. If the event in question was fully filmed and recorded, then the lawyer's  job at trial would be to play the tape. If the tape was unambiguous, there wouldn't normally be much to argue about. Think of those early days when our parents or teacher would read us a fairy tale. The story was about something that happened "Once upon a time, far away, and long ago." Like trials,  the events in fairy tales were handed down by word of mouth. The words of the participants in the story were the key. The pictures just made it more concrete. If we looked at the pictures, we didn't have to imagine what this guy Rumpelstilskin looked like. One look and now the character had a face. But that was just icing on the cake. What Rumpelstilskin did and why he did it was the heart of the story, not how he looked. We learned about what happened by listening to the words. So it is with trials. They are mainly word stories. The visuals are there to make the story more real. We lawyers are the raconteurs (storytellers) who recount the tale, first in opening, then in direct and cross, and finally in jury argument.  We use visuals as a medium to complement the words of our message.

Telling trumps showing. Visuals in argument serve the purpose of putting forms, faces and perspective into the story of your case. But, don't rely on a glitzy "show and tell," where the show (the visuals) becomes more important than the tell (the word pictures that you paint). Rely on TELL and SHOW where your visuals are there to strengthen your words.  Visuals come in many forms, from flip charts to PowerPoint. In argument, keep them simple and graphic, e.g., timelines, witness inconsistency charts.  Use  visuals as  tools that work to underscore and illustrate your spoken words. The "telling" in jury argument is more important than the "showing." The "showing" compliments the "telling" by clarifying it and making it more memorable.



jury argument
practice tips and tactics 2
Nos. 2 - 13
making the most of your talent
examples from JACC

copyright © 2001 Ray Moses
 

TIP 3:  YOUR INSTINCTS MAY BE WRONG - SOURPUSSES MAY BE YOUR FRIENDS, AND SMILEY FACES MAY LOATHE YOU.

It's always easier to talk to the friendly members of an audience than the hostile ones. If you are a good lawyer, you have been watching the reactions of your  jurors. By the time argument rolls around, you have probably formed opinions about which jurors appear to be with you, which of them are hostile, and which are question marks. Your instincts may be right, or they may be wrong. Right or wrong, you'll be inclined to focus your vocal and physical message during argument on the jurors you think are in your corner, e.g., the ones who establish eye contact and smile at you.  Resist the inclination. Concentrate some of your persuasive skill on the sour-pusses and the stone-faced inscrutables among the jurors. Trying  to communicate with those who seem totally  unreceptive might seem to be a fruitless waste of time.  You'll be surprised how often you've misread some of these folks. Many people mask their feelings. It takes spunk to look into the abyss and have it look back at you, but sometimes it looks back and gives you the verdict you seek. So, look them all in the eye, and accept the challenge of providing each juror with the arguments s/he should make for you in the deliberation room. Your mission is to extinguish the other side's fires in argument so they cannot be reignited in jury deliberations.




TACTIC 4:   QUOTE OPPOSING WITNESSES.

Jury argument should never be a chronological regurgitation of what each witness said. The mark of a rookie lawyer is the jury argument that goes: "We brought you Mr. Smith, who told you blah-blah-blah. Then we brought you Ms. Jones who testified blah-blah-blah. Finally, we called Little Junior Davis who stated blah-blah-blah."  That's no way to tell a story. But there will be occasions when you should quote a witness during argument. For example, if you questioned an opposing witness about a key point and he gave you a favorable answer, quote the question and answer back to the jury from the record. If you have caught an opposition witness(es) making highly inconsistent statements about relevant matters, quote those inconsistent statements to the jury. It will help in argument if you can refer to a certified copy of the court reporter's transcript. Another way you can use "tell and show" is to write important answers (favorable or inconsistent) of an opposing witness on a flip chart when the witness gives the answer on cross-examination.  Write the witness' name, the time, and the date on the flip chart when the answer is given. Use the flip chart during your jury argument as a visual to back up your oral quote from the witness.


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TACTIC 7:   MAKE A WRITTEN LIST OF "CHALLENGE QUESTIONS" FOR  YOURSELF AND THE OPPOSITION.

Consider making a written list of helpful, useful questions that you believe the jurors might like to ask you, and answer each one. Of course, you'll have to ask questions that you can answer. Consider also making a written list of questions that you can challenge the opposition to answer during their argument. Tack the challenge questions up in front of the jury on a board shortly before you sit down. Consider orally offering to yield 10% of your allotted argument time to your opponent to answer your "challenge questions." You may even want to predict that your opponent will take the board down without addressing all the questions. The challenge questions need to be bulletproof ones that can't be readily answered by the opposition. Your opponent may try to finesse his way out of answering them, but, if they are good, he'll probably take the board down.



TACTIC 8:   GIVE THE JURORS A MOMENT TO SILENTLY APPLAUD.

You are trying with your jury argument to capture a moment in time. The jury isn't allowed to applaud, but if, on a rare occasion, you say something that you know the jurors would applaud, if allowed, pause briefly after the statement to heighten its dramatic impact. (Don't take a bow.) Silence can also be golden in other instances. See Tactic 22



TIP 10:       LET THE SPIRIT MOVE YOU.

The act of arguing implies that someone is listening. Movement and action, both physical and verbal, arrest and keep the attention of the MTV generation. Use planned and structured movement to spice up your performance



TIP 9:   YOU'RE THE LAST ONE TO BE BORED BY YOURSELF.

Beware of too much jawboning! Don't be too wordy. Practice your argument. Cut out the fat. Say what needs to be said and stop. Remember the story of the jury of twelve lawyers? The evidence commanded a quick verdict, but after a full day of deliberation the judge called them into the courtroom and asked if they were progressing in their deliberations. One of the lawyers stood up and said, "Judge, we just finished with the nominating speeches for foreman. Give us about twenty minutes, and we'll have a verdict."



TACTIC 11:    TRY A  "STAGE WHISPER."

The "stage whisper" is a vocal device used by actors to simulate a private conversation. One whispers at a level that allows onlookers in the audience to hear what is being said. You can use a "stage whisper" in a "just between you and me" jury argument. It is a dramatic and persuasive attention getting vocal device when used in moderation.


TIP 12 : CONTROL YOUR  RIVAL BY ETHICAL INTERRUPTION; DOWNLOAD THE CCJA Objection to Argument Checklist  and Cases on Opening & Closing                                                   

Once the opposition's advocate has begun to argue, the only way you can control the flow and tempo of the opponent's argument is by interruption. The only permissible basis for interrupting opposing counsel is by valid objection. So, if you want to have any control over what the opposition is saying to the jurors, you must  learn how to object to improper argument. If you break into your opponent's argument with invalid objections that are overruled, the jury will punish you for your rudeness in interrupting the story.

Become conversant with what constitutes impermissible argument and understand the appropriate evidentiary grounds for objecting to improper argument. Make yourself a objection cheat sheet that lists the standard objections to jury argument. You'll find our CCJA Jury Argument Objection Checklist on this web site. Download a copy and put it in your trial notebook as a ready reference for objecting to improper argument. Read the cases on improper argument in your jurisdiction and pencil them in. Your objection must be specific. It must identify the portion of the argument that is objectionable.

Your objection must be timely. Mechanically, you've got to be a quick thinker; you have to be able to recognize the impropriety of the other side's argument, determine the correct ground for your objection,  stand, and mouth a verbal objection, all at that very moment. If you wait too long to object to something that shouldn't have been said, your otherwise valid objection can legitimately  be overruled. More important from a strategic standpoint, you will lose the blunting force that your objection would otherwise have had on the persuasive impact of the tempo and flow of the argument. Listen to your opponent's argument. Don't spend much time watching your opponent. Watch the jury while your opponent is arguing, but listen (I'm repeating myself on purpose for emphasis.) to what your opponent is saying. If you aren't listening, you may miss the opportunity to interrupt with a valid and useful objection.


DELIVERY OF ARGUMENT
TIPS & TACTICS III
FEATURED ARGUMENT

TIP 13: USE JURY ARGUMENT TO HELP YOUR ALPHA JURORS CONVINCE THE OMEGAS IN DELIBERATIONS BY (1) REMINDING THEM OF THE VERBAL ARGUMENTS THEY MAY USE IN FAVOR OF YOUR POINT AND (2) SHOWING THEM HOW TO USE THE EXHIBITS IN THE DELIBERATION ROOM TO DEMONSTRATE THE MERIT OF YOUR POINT TO THE "DOUBTING THOMASES," CONTRARIANS,  AND THE FENCE SITTERS.

Behavioral scientists tell us that jurors use the exhibits during deliberations to prove the merit of their position to the other jurors. [My personal experience observing juries in over two hundred mock trial deliberations supports this finding.] Therefore, use jury argument to remind the jurors who may favor your position of the verbal language of the arguments they can use when explaining the meaning of the exhibits to other jurors, and show these favorably inclined jurors just how they can use the exhibits to demonstrate your point during juror discussions. [Note: This presupposes that you have done everything within your power to ensure that the exhibits favorable to your position are sent back to the jury  deliberation room. If the court's policy is to send exhibits back only as the jury calls for them, use argument as your opportunity to urge the jurors to ask for the exhibits that support your position.]  


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