TIP 19 - PROVIDE YOUR SUPPORTERS ON THE JURY WITH THE POSITIVE ARGUMENTS THEY WILL NEED TO WIN OVER THE "FENCE SITTERS," BUT DON'T FORGET TO ADDRESS AND DILUTE THE OPPOSITION ARGUMENTS THAT THE INFIDEL JURORS WILL MAKE.
It's popular these days to advise young advocates that they must use jury argument as the place to arm the true-believers with affirmative arguments to carry into the jury deliberation room. The goal is to provide your supporters with positive forensic ammunition that will overcome the arguments of the non-believers. Since we anticipate that the jury argument will continue in the jury deliberation room, as the jurors voice their individual feelings and opinions, we want those who are for us to persuade both the fence-hangers and those that are dead set against us. This is as it should be. Of course, as mentioned in Tip 3, it's not enough. The danger in concentrating our attention on the affirmative arguments that support our position is that we will forget to address and undermine the strongest points of the opposition. Discussing the part of the opposition's case that scares you most isn't pleasant. But you have got to do it! Unless you dilute the strengths of the opposition's strongest arguments, you can't expect your juror-emissaries to bring any of the infidels or doubter's over to your side with those affirmative arguments that you have so carefully presented. [This advice is predicated on having watched hundreds of jury deliberations in mock trials.]
TIP 14 - MAXIMIZE THE PERSUASIVE INFLUENCE OF THE VISUALS (GRAPHICS) YOU WILL USE DURING ARGUMENT.
Your goal in trial is to have each juror saying "When I hear, I see. When I see, I hear." To maximize the optical portion of your argument, try to limit the subject matter of each visual to the fact, inference, or deduction that you will be arguing while displaying the visual. Don't lose the jurors' attention with data overload. This does not mean that your visual has to contain only one or two words. Au contraire (On the contrary), a single visual may convey a substantial amount of information. For example, in a murder case, if there have been several expert forensic entomologists testifying to bug activity on a corpse and coming up with similar or different PMI'S (post-mortem intervals), your visual may be a large chart that summarizes the concurring and/or differing conclusions of the experts. The comparison chart may be somewhat large and long, but you are using it for a single purpose, e.g., to show either that the experts agreed or disagreed. You want the jurors' attention. You don't want to mislead them with an irrelevant or overly busy visual. Take responsibility for your own visuals. Make sure that all the information on the visual is relevant to your oral message. If the visual is verbal, work it from top to bottom. If it contains more than one point, the best point should be at the top. Get rid of the fog, fluff, foam, filler, fuzz, froth, and froufrou. If you aren't going to argue something verbally, it probably doesn't belong on your visual. If your visual is on a board, stay close to it. Your proximity will cause the jurors to associate the visual with what you are saying. If you are displaying the visual on a screen or flat-screen or plasma monitor, you can associate yourself with the visual by using a pointer, e.g., a pocket held laser-pointer [I bought a pen-sized laser pointer for less than $40 several years ago. It still works like a charm. Take the batteries out when you are not using it, and be sure not to point the laser beam at anyone, especially jurors.] on the monitor or screen, a pencil pointer on the video platform (document camera, Elmo). Keep your visual and your oral argument in sync. When you point at information on the visual, look at the visual yourself, and indicate what it says. When you look at it, the jurors will look at it. Then, when you are ready to argue the inference or deduction the jurors should draw from the information, put away your pointer, look at the jurors, and explain the significance of the information. Keep the visual out of sight until you are ready to talk about what it depicts. Your visual and your oral argument have to be in sync. One can't get ahead of or lag behind the other. It's within your power to choreograph the role of the visual. The jury will direct its attention as you direct yours. When you are finished arguing the point supported by your visual, remove it. You don't want your last visual to be competing for juror attention with your current argument. The one time when you may want to leave your visual up is when it is truly your last visual and ties into your concluding statements, e.g., when it is a list of questions that you challenge the other side to answer.
jury argument tips and tactics 3
Nos. 14 - 30
making the most of your talent
copyright © 2001 Ray Moses
all rights reserved
TIP 15 - RELAX WITH SIMPLE EXERCISES AS YOU SIT AT COUNSEL TABLE.
If you feel nervous as you sit at counsel table waiting for the judge's signal to proceed with your argument, try a simple breathing exercise to oxygenate your system. Without calling attention to yourself, fill your lungs with a deep breath, breathing through your nose. Hold the air for a count of five and breathe out through your mouth. Do this three or four times, holding for one count less each time. Breath control is one of the best methods for lessening anxiety. Here's another suggested exercise to relieve nervous tension as you await your turn: Breathe through your nose, fill your lungs, hold the breath for a four count while tightening the muscles of your trunk and legs. Breathe out through your mouth while relaxing your muscular tension. Make it a habit to breathe deeply, regularly, and slowly. Another breath control exercise you can try is to breathe in for four counts, hold the breath for two counts, and breathe out for six counts. You'll find numerous breathing exercises and techniques in books and web sites, e.g., (1), ( 2), (3), (4), (5), (6), (7), many of which are devoted to the practice of yoga. Progressive muscle relaxation can also be done while sitting at counsel table: Progressively tense and release the muscles of your body, starting with your feet and going up to your head.
TACTIC 16 - "DISMOUNT" ("HOOK OUT," EXIT) ON A HIGH NOTE WITH A MEMORABLE CONCLUSION.
A jury argument is like a love affair. Any fool can start one, but to end it requires considerable skill. Arguments have a beginning, a middle, and an end. The ending provides a jury argument with a sense of completion and wholeness. Your conclusion, in rhetoric it's called the peroration, should be brief, e.g., about 5% of your total argument. The purpose of peroration is to make the effect of the preceding argument more palatable and memorable. Your conclusion must be powerful and your jury should know when you are concluding. First, your conclusion is almost as important as your beginning. The end of argument is your last opportunity to summarize your strong points and convey a gripping emotional tone. Some lawyers will blend a question, a quote, or an illustration into the concluding statement. Others will end with a warning or a challenge. Come up with your own appeal to the jury, exhortation to duty, and /or expression of confidence in the jurors. If you need inspiration in devising a strong conclusion, take a look at the hundred of examples in the jury argument book. Second, the conclusion is where you let your jurors know that your communication with them is coming to a close. You want the jurors to know that you have come to the end of your argument. You do this by telling them, e.g., "In conclusion," "In closing, and I must close," " I am about to close my task," etc. Don't give false signals. Don't indicate that you are concluding and then take flight with another sermonette. Jurors don't appreciate false expectancies. When you say you are concluding, conclude. I believe in thanking the jurors for their "kind and patient attention." Jurors are not allowed to applaud, but you can end as if they were. For example, immediately after your exit line (closing sentences), e.g., "You can put an end to this nightmare. You can go out and write a "not guilty" to each count of this indictment." take a step back, do a Z-glance at the jurors, and say "Thank you for your kind attention." If you don't want to break the dramatic effect by verbally thanking the jurors, simply substitute a nod for the verbal thanks. Turn and return to your seat at counsel table.
TIP 17 - CONSULT THE INTERNET FOR A RELEVANT DATE IN HISTORY THAT WILL SPICE UP YOUR ARGUMENT.
Use the web to provide you with meat for your argument. For example, you may want to rely on a relevant event in history to underscore a point. To find an historical event that is consistent with your theory to the case use your search engine to consult the many web sites, e.g., (1), (2), (3), (4), (5), (6), (7), (8), (9), etc., that recount historical events by date. Work the relevant historical event into the text of your argument to underscore the importance of your message, e.g., "On this date (Indicate the number) years ago, something happened in our history that bears mentioning. [Follow with the reference to the relevant event.] " Even if an historical event didn't occur on the day in question, learn about history (1) and plug it into your argument when apropos.
TIP 18 - FIND AND TELL ILLUSTRATIVE SHORT STORIES ARGUMENT.
Your ability to tell a good story will enhance your persuasive powers in jury argument (and opening statement). To learn to tell a good story, one must, first ,have a good story and, second, be able to tell it. Where do you find stories? They abound. We start our lives listening to children's stories. Stories, our own and those of others, are addictive. Our lives are a series of unfolding stories. The movies and TV are full of them. Preachers will tell two or three short ones in a good sermon. (Lots of these are on the web.) The nightly newscast is crammed full with mini-stories. All of us, jurors included, pay attention to stories. It's one way we learn. Take a look at the discussion of storytelling on the CCJA Pretrial page and the plethora of storytelling suggestions and resources at the storytelling page of the Open & Close web site.
But, back to earth. About finding stories for use in argument, a good single source for a plethora of folktales is Professor D.L. Ashliman's folklore-mythology web site. You might find another resource, but you should be able to find a relevant short story that will fit into your jury argument and give it some bona fide pizzazz! There's always Aesop's Fables. You may find a brief story set to rhyme in poetry (1), (2).
About learning to be a better teller of stories, a quick suggestion is to hook up with the national storytelling network. Another suggestion is to take a public speaking course at a local university or college with an evening public education division. Join Toastmasters. Read old Dale Carnegie tomes. Join the speakers bureau of your local Bar Association.
TIP 20 - DON'T SCOLD, CRITICIZE, OR ATTACK OPPOSING COUNSEL.
Personal (ad hominem) attacks on opposing counsel will get you nowhere. Prosecution attacks on defenders are viewed by most courts as an indirect attack on the accused and, thus, error. In Texas, we call it "striking at the defendant over the shoulders of counsel." On the other hand, attacks on the weaknesses of the opposition's argument are appropriate either in response or in anticipatory reply. See Ethics.
TIP 21 - MOVE JURORS IN ARGUMENT BY YOUR COMPETENCE, LIKEABILTY, & CHARACTER.
If you can't trust the messenger, you can't trust the message. Unlike bosses in the workplace, you have no authority to demand a verdict. You can't punish jurors for an adverse verdict or affect their livelihood for failure to carry out your requests. Your personal ability to persuade and move the jurors to a favorable verdict depends, in part, on three factors over which you have almost total control. Your credibility with the jury depends on how they perceive your competence, your likeability, and your character. First, demonstrate your competence by displaying the skills of an advocate, i.e., proficiency in jury selection, clarity in opening statement, continuity in direct, incisiveness in cross, accuracy in making and meeting objections, logic in presenting expert testimony, and command of facts and law in jury argument. A competent lawyer is one who seems to know his stuff. Second, is the likeability factor. Conduct yourself throughout the trial in a way that will gain you friends on the jury, i.e., act ethically in such a way that the jurors will like you. Be authentic in manner. Share something of yourself with the jurors. You can be vulnerable without appearing weak. Establish some common ground that lets jurors feel they know you as a person. We like those that we know more than we like strangers. Jurors that like you are more inclined to support your efforts. Lastly, is the character factor. This is what is known as ethos - your integrity. To trust a person we must think of the individual as a person of integrity and sincerity - a straight shooter. Your passionate belief and enthusiasm about your case shows that you care. Turn the mirror on yourself, and work on these three factors. The more you do, the more receptive your jurors will be to the message you deliver in argument.
TACTIC 22- SILENCE IS GOLDEN - IT PROVIDES A DRAMATIC BALANCE THAT WILL CAPTURE THE JURORS' ATTENTION.
Use a pregnant pause after making a good point to dramatically underscore the message., e.g., after asking a rhetorical question, wait three counts before you answer it. If you give the jurors time to answer the question first, you'll be agreeing with their answer rather than telling them the answer Also, use brief silence to recapture or arrest the attention of jurors before making an important argument.
TIP 23 - EXERCISE CAUTION NOT TO UNNECESSARILY EXPRESS VALUE JUDGMENTS THAT WILL OFFEND MEMBERS OF YOUR JURY.
It's not easy to make a jury want to decide in your favor if you express personal core values that are inconsistent with theirs. In these days of political correctness, you must be sensitive to individual sensitivities that may be offended by unnecessary expression of your individual values or those of your client. For example, if the issue of the "gay agenda" or abortion is part of a criminal case, it is risky for the advocate to argue his or her personal views, beliefs, or values on the controversial topic. The reason is obvious: No matter what your view, belief, or value judgment of the hotly debated issue is, you will probably offend some jurors because some of them will have an opposite belief system. If you have to condemn or praise the merits of a hotly debated moral issue in argument, explore its morality from the viewpoint of the evidence, i.e., what third party witnesses have said in testimony and what is a matter of common knowledge among the jurors. Link the moral judgment to the evidence, not to your own world view. In effect, you put the blame for the moral belief or value judgment on the backs of someone other than yourself or your client. The point: Don't alienate some of your jurors by crossing swords on sensitive moral values when you can avoid it.
TIP 24 - USE THE MAGIC PHRASES "DON'T YOU KNOW" AND "DON'T YOU THINK" TO UNDERSCORE THE OPPOSITION'S FAILURE TO INTRODUCE EVIDENCE TO SUPPORT A FACTUAL CONTENTION TO AVOID INJECTION OF YOUR OWN OPINION.
The rules of argument impose a fiction of personal detachment upon the advocates, i.e., trial lawyers are not allowed to speak for themselves. At the argument phase, we must refrain from expressions of personal opinion, e.g., the "in my opinion," "I believe," and "I think" arguments. So, how do you drive a point home without injecting your own heartfelt opinion? Here's one way. When you want to comment on the opposition's failure to produce evidence consistent with it's theory of the case but want to avoid offering your personal opinion or speculation about the absence of such proof, two magic phrases to remember are "Don't you know" and "Don't you think." Just place one of these phrases in front of the factual proposition that the opposition would have tried to prove had there been any evidence, e.g., "Don't you know (or Don't you think, See TIP 26) that if there had been any proof of (state the relevant fact) they (indicating the opposition) would have brought it to you."
TIP 25 - CONSIDER BORROWING SOME IDEAS FROM THE MOST PERSUASIVE SPEAKERS ON THE PLANET - THE ONES PEOPLE GET DRESSED UP FOR, SEEK GUIDANCE FROM, AND PAY TO HEAR, i.e., PREACHERS.
The speaker's ethos, i.e., his or her distinguishing character, sentiment, moral nature, or guiding beliefs, can have great influence on an audience of jurors. Is there any group of speakers in our society who embody this spirit of ethos? Which group of speakers do we dress up for, donate to, and look to for guidance. Politicians? To some, politicians may be viewed as people of character. But I suggest that clerics have it going away. These folks are chock full of parables. Regardless of ones religious beliefs or lack of them, the persuasive power of those behind the pulpit cannot be discounted. Statistics teach us that seventy percent of adult Americans classify themselves as "born again." If you want to examine the inspirational words of clerics for concepts, intrinsic values, or ideas that might be modified for use in secular courtroom arguments, start with the Internet and TV broadcasts of sermons. You'll find many resources, e.g., this one contains several thousand sermons. Some "feel good" TV preachers, e.g., Joel Osteen, (1) have published books that contain "everything always turns up roses" and "God is gonna update your ticket from coach to first class" vignettes and homilies that you might adapt into your jury speeches. [No disrespect intended, but prosecutors and defenders sometimes refer to religiously based arguments by the opposition as "going Pentecostal."]
TIP 26: USE THE MAGIC PHRASE "DO YOU THINK IT'S JUST A COINCIDENCE THAT" TO HIGHLIGHT THE PROBABILITY OF THE CONDUCT AND/OR MENTAL STATE YOU ARE TRYING TO PROVE BASED ON CIRCUMSTANTIAL EVIDENCE.
Suppose you want to emphasize the probability that a defendant, complainant, or other individual engaged in criminal conduct and/or acted with a culpable mental state, e.g., intentionally, knowingly, wilfully, maliciously, consciously disregarding a known risk, etc. One way to do so is to underscore that the antecedent actions of the person question would not have occurred in the way it did unless the actor had a culpable mental state and/or committed the criminal act that caused the social harm. This can be done by use of the rhetorical question, "Do you think it was just a coincidence that (recount all the cumulative factually compelling circumstances, e.g., 'one, two months before his wife Debbie, was shot to death in the kitchen of her home, the defendant purchased a two million dollar life insurance policy on Debbie's life and, two, that a month before the killing the defendant told his mistress that he would 'be coming into a lot of money soon and would be able to marry her' and, three, that the defendant secretly purchased an unregistered .38 caliber pistol from a convicted felon at local carwash and, four, that the defendant, for the first time in six years, gave the family housekeeper the weekend off, the very weekend that Debbie was shot in the head with a .38 caliber pistol, and, five, that in his voluntary statement to the police the defendant was unable to account for his whereabouts at the time of the killing, other than to say he had 'gone camping in the desert, etc.')." The "do you think it was just a coincidence" argument works nicely with a simultaneous PowerPoint slide display that presents each incriminating "coincidence." The visual can be presented in a time line of "coincidences" or in a simple list of "coincidences" or by circling or cornering a photo of the disputed event or the individual in question with the "coincidences."
TIP 27: USE COMMON PHRASES TO HEADLINE THE THEME OF YOUR CASE.
Your case theme is the brief recurring representation that characterizes your case. It may be one word, one phrase, or one or two sentences. The theme of your case can oftentimes be headlined in opening and closing by use of a common phrase. Take a look at this site that provides you with a couple of thousand phrases, some swank and some hackneyed, for free and ten thousand more for a price. See also (1).
TIP 28: IF YOU HAVE SOME DYNAMITE EXHIBITS, DON'T FORGET TO TELL THE JURORS THAT THEY HAVE A RIGHT TO REQUEST THE EXHIBITS FOR EXAMINATION DURING THEIR DELIBERATIONS.
Many trial judges do not sent exhibits back to the jury deliberation room as a matter of everyday practice. These judges leave it to the jurors to ask for any exhibits if they want to examine. So, if you have exhibits that help prove your theory of the case, don't forget to remind the jurors in argument that they have a right to examine the exhibits during their deliberations. I have seen many mock trials where the lawyers assumed that the exhibits would be sent to the jury as a matter of course. The attorneys forget to mention that the jurors can call for the exhibits. Then the jurors discuss whether they have the right to see the exhibits again. Sometimes they send a note asking if they can have certain exhibits. But sometimes they assume that they have no further right to see the exhibits and continue their deliberations without asking to see the exhibit. .
TIP 29: IDENTIFY YOUR GOAL(S), AND STAY ON TARGET.
All trials are about argument, and all argument is goal directed. Antecedent to framing your argument is the determination of what you want to accomplish with it. What is your purpose in trying the case. What is it that you want the jurors to conclude? Do you seek a conviction or an acquittal. Do you hope to persuade the jury to convict of a lesser included offense? Is the case all about the level of punishment that will be inflicted? Your ultimate goal is directly related to the contention or claim that you make to the trier of fact. Your contention or claim is, in turn, directly related to the evidence and logical inferences that are available to you and your opponent. Do you have a fallback position? For example, if your think that your argument that a killing was in justifiable self-defense may not be accepted by the jury, do you have a secondary voluntary manslaughter argument that the killing was done when the accused was in the grip of "heat of passion"? Know where you are going with your argument. That way you'll know when you get there.
TIP 30: DON'T DISPUTE FACTS THAT ARE BEYOND DISPUTE, BUT BE CAUTIOUS IN CONCEDING FACTS THAT DEPEND UPON THE CREDIBILITY OF IMPEACHABLE OPPOSITION WITNESSES.
It makes no sense to contest facts that are clearly and unmistakably true. Some facts are simply beyond dispute. You may put a positive spin (premise) on them, but you destroy your credibility by arguing their non-existence. On the other hand, do not concede negative facts that depend for their veracity upon the credibility of impeachable opposition witnesses.
