JURY ARGUMENT
TIPS & TACTICS 4
Tips #31-44
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TIP 31 - FAMILIARIZE YOURSELF WITH FIGURES OF SPEECH THAT CAN ENHANCE YOUR ARGUMENT.
There are a raft of figures of speech, some of which are worth working into your courtroom arguments. For example, Apophasis (uh-pah-fuh-sis) is the technique of raising an issue by claiming not to mention it, e.g., "I won't spend any time talking about (insert the issue you want the jury to discuss)." It's a debater's ploy or stratagem to put an issue into the argument while maintaining plausible deniability. This rhetorical device is also known as preterition and paralepsis. In my course on opening statements and jury argument, we consider how to best employ some of these rhetorical flourishes to juice up our courtroom speeches. Here are a few resources that we use in the course: (1), (2), (3), (4), (5), (6 - Wiki), (7 - Blog). These are several figures of speech that you already use in your openings and closings, maybe without knowing it: Adynation, Antanaclasis, Antiphrasis, Aposiopesis, Apostrophe, Autonomasia, Auxesis, Hyperbole, Irony, Liotes, Meiosis, Metalepsis, Metonymy, Onomatopoeia, Paralipsis, Personification, Syllepsis, Synecdoche. Look 'em up on the resources listed above..
Similes, metaphors, extended metaphor are suggestive figures of speech that appeal to the jurors' emotions. Used sparingly, they can jazz up your opening or closing. You don't have to give reasons for them, but you should not use them unless they clearly apply. If you use a metaphor or simile to say more than the facts justify, expect that the jury will consider the rhetoric as unfair. The use of inappropriate comparisons invites your opponent to point out the foul blow. Having said that, here area few samples of similes : fighting like two scorpions in a bottle; salivating like Pavlov's dog; like watching paint peel (longer than "dry"); wild as mountain scenery; like a dog in season so blind with lust that he will mount whatever falls in its path; as difficult as trying to untie a sack full of knots; screaming like a school room sissy; hanging like a putrefied albatross around his neck; good-hearted as Forest Gump; like using a screwdriver to cut roast; as pretty as a convention of angels; as reckless as giving a teenager a loaded pistol, a bottle of whiskey and a set of car keys; as idle as a painted ship upon a painted ocean; like a lightning flash, it made a loud noise, lit up the place, and was gone; collapsed like a wet taco; a long ordeal like being nibbled to death by ducks. See Wiki for some stock metaphors.
TIP 33 - GET RID OF "I." - LEARN TO RELAX THE SELF IN A WAY THAT FREES YOU FROM STRESSFUL SELF-CONSCIOUSNESS.
Each of us must achieve a relaxed sense of self his or her own world. Each of us is a fragment of the universe. Albert Einstein said, "The true value of a human being is determined primarily by the measure and sense in which he has attained liberation from the self." Aldous Huxley advised us, "The only corner of the universe that you can be certain of improving is your own self ... The urge to transcend self-consciousness and selfhood is a principle appetite of the soul." How can we master ourselves and at the same time liberate ourselves? I find comfort in the words of the Buddha: "What is the way of Buddha? It is to study the self. What is the study of self? It is to forget oneself. To forget oneself is to be enlightened by everything in the world.... It is better to conquer yourself than to win a thousand battles. Then the victory is yours. It cannot be taken from you, not by angels or by demons, heaven or hell."
TIP 35 - PUT DESCRIPTIVE LABELS ON OPPOSITION WITNESSES.
It is easier for jurors to remember witnesses when you can place a descriptive label on them. Typically you will label the players in your opening statement and will stick with those labels throughout the case. However, sometimes something happens during the case that allows you to give a witness a more descriptive label than their proper name. For example, suppose that when you begin a cross-examination of witness Linda Smith you ask, "How are you this afternoon?" and the witness responds, "Fair to partly cloudy" For reference in jury argument, that opposition witness may become Linda "Fair to Partly Cloudy" Smith. In my experience listening to jurors deliberate, they typically refer to witnesses with labels rather than names. So if you don't come up with labels, expect that your jurors will.
TIP 36 - CONSIDER THE POINT OF VIEW FROM WHICH YOU WANT TO RECALL THE STORY OF THE CASE.
When arguing the case, what point of view do you want to take? Consider replaying critical events or conversations with act outs or present tense dialog. If You are a risk taker, know your case, and want some drama in your argument - try putting yourself in the shoes of your client/victim and argue from the first person; unless you prepare your jurors for the first person argument, e.g., "Let's think about the situation looking through the eyes of (name the client/victim)," the jurors will be a bit confused when you go directly into the first person, but they will soon understand what you are doing. Use props where appropriate, e.g., you could use a courtroom chair and argue from a seated position when recounting a conversation or observation of a witness who was seated when the observation or conversation occurred.
TIP 37 - USE THE CARTOON METHOD IN PLANNING AND PREPARING YOUR ARGUMENT.
When trying to decide what facts to emphasize in argument, draw a four panel cartoon depicting the vivid mental images you want the jurors to recall when they deliberate upon a verdict. Draw your cartoon figure with verbal bubbles of each actor's important statements at the time. These are the mental images you want to leave firmly fixed in the minds of your jurors as they retire to deliberate upon a verdict. More about the Cartoon Method of painting verbal pictures in the your opening statement and jury argument.
TIP 38 - USE A FLIP CHART TO MEMORIALIZE KEY STATEMENTS BY WITNESSES.
Position a flip chart near the place from which you will question witnesses. Make sure the flip chart is close enough to the jurors for them to see what you write on it. When a witness makes a crucial statement that you want to refer to in jury argument, write the witness name at the top of the page and then write exactly what the witness said on the flip chart; add the date and time of the testimony underneath the answer. Make sure the witness verifies that your chart accurately quotes the witness' answer. In jury argument, when you want to refer to the crucial testimony, display the flip chart and use it to remind the jurors exactly what the witness said and when. There can be no question about what the testimony was because the jurors saw you write it and heard the witness verify the accuracy of what you wrote. This self-created visual can be very effective when opposition witnesses give you gems that want to use against them in argument.
TIP 39 - MEMORIZE THOUGHTS NOT WORDS
TIP 34 - USE THE PRONOUNS "WE" AND "US" WHEN TALKING TO AND ABOUT THE JURORS.
It is easy to fall into the habit of thinking of the jury as yourself as a lawyer (me) trying to persuade a group of jurors (them). But you will be better served to argue as though you were a member of their group. Rather than saying, "You know the proper conclusion to draw from ..., say "We know the proper conclusion to draw from ..." " Rather than saying, "When the witness told you about the car..." say "When the witness told us about the car." When you use "we" and "us" you are putting yourself in subconscious agreement with your jurors.
TIP 39 - MEMORIZE POINTS, NOT WORDS.
We've all been told to memorize the opening and exit lines of our opening statements and jury argument. That's good advice because we want to be real confident that we will be able to start and end even if we lack a noticeable brain wave. But what about that great middle between the beginning and the end? I can't speak for you, but trying to memorize that is too tall a chore. Even if you could do it, you wouldn't want to lose that air of impromptu spontaneity that comes from choosing the words as you go along. So don't even think about trying to memorize those middle part words, even though you've written them out, edited them, and practiced delivering them several times. The only things your want to memorize for the guts of your jury argument are the three to five points you want to cover in the middle. In short, you need to memorize thoughts not words. If you've practiced and prepared beforehand, the proper words will come as you deliver the jury speech.
TIP 40 - USE THE PHRASE "DOES THAT MAKE SENSE?"
The phrase "Does that make sense?" provides you with one of the best rhetorical questions that you can pose when it is prefaced by a review of facts that you either want the jurors to reject or accept. In the former case, you want the answer to be "no," and in the latter "yes."
TIP 41 - TAKE A CHAIR FOR A FEW MINUTES AND ARGUE FROM A SEATED POSITION
If you are arguing for an extended period, consider drawing a counsel chair toward the jury box, sitting down, and saying "Now I want to take a couple of moments and, forgetting about all the legal mumbo jumbo aspects of this case, speak nothing to you but the language of common sense. Let's just visit about what sound and prudent judgment tells us about the crucial issue in this case" This technique will recapture the juror's attention and if done in a subtle manner will resemble a "fireside chat." Don't spend too much time in the chair, five minutes for a half-hour argument. Practice this technique beforehand. Do it only if it feels comfortable.
TIP 45 - ATTACK YOUR OPPONENT'S ARGUMENT BY CHARACTERIZING IT AS "AN INSULT TO THE JURY'S INTELLIGENCE"
Case law in your jurisdiction probably prohibits you from employing a direct argumentum ad hominem argument against your opponent. The ad hominem argument is one that is directed at your opponent as a person rather at what s/he is saying. Typically, we don't allow one advocate to launch a personal attack against the other. See objections to jury argument. The ad hominem argument goes this way: Opposing counsel is telling you X; but opposing counsel is a rogue, a scoundrel, a scamp, a prevaricator, and a fabulist; therefore, you you must discount and disapprove what opposing counsel is telling you. The purpose of the ad hominem argument is to transfer negative feelings about the speaker to what the speaker is saying. The "their argument regarding (state the subject) is an insult to your intelligence" blends a tacit (implied) ad hominem argument against opposing counsel with a more direct attack on the factual merits of his/her argument. Because it focuses on the merits of the opposition's argument, it is less likely to suffer an objection. When you give this argument look directly at the jury but motion behind you with one hand toward the opponent's counsel table. The argument might go this way: They (motioning) argue to you that (state the ridiculous assertion of the opponent). Ladies and gentlemen, that argument is an insult to your intelligence. (Proceed to explain the reasons why the argument is ridiculous and explain why the opposition's case is so weak that they had to resort to it.)
TIP 42 - "WHERE'S WALDO?" - CALL ATTENTION TO MISSING WITNESSES WHO WOULD HAVE BEEN EXPECTED TO GIVE FAVORABLE TESTIMONY FOR THE OPPOSITION IF THE OPPOSITION'S THEORY OF THE CASE HAD BEEN TRUE.
If there has been testimony concerning persons who were fact witnesses and neither you nor the opposition called the person to testify before the jury, consider whether the juxtapostion of the facts is such that the jury would expect that the person would testify in favor of the opposition. If the answer is "yes," you may want to raise a question in argument as to where that person is. If the burden of proof is on the opposition, you can point out that you have no burden to call any witnesses and the other side has the burden of persuading the jurors of its claims beyond any and all reasonable doubt. You can remind the jurors that their job includes considering not only what is in evidence but what isn't in evidence, i.e., the failure of the party with the burden of proof to bring the jurors all credible evidence in support of its assertions and allegations. You might put a label on the missing witness or draw a stick figure picture of the missing witness and supoerimpose a big question mark on it. This is a good place for one of those "Don't ya think" arguments, e.g. "Don't ya think it would be natural in painting the complete picture of this case that they wouldn't leave a great big hole in the middle of it?"
TIP 43 - DON'T PUSH TOO HARD. JURORS CONVINCED AGAINST THEIR WILL ARE OF THE SAME OPINION STILL.
Rather than trying to force the jurors to accede to your will - convince them with your information, and let them decide. Think about what influence you want your argument to have on your jurors. What do you want these folks to do? If you want a favorable verdict, as you certainly must, you must explain why you are entitled to it. You are the "iron fist" in the "velvet glove." Collect the evidence, prioritize it, and point it out, so the jurors will understand what you are driving at. Use logic if it favors your position, but remember that you are reaching for the consciousness of the jurors. If your argument doesn't move your jurors, it doesn't succeed. In 65 A.D., the Roman orator Seneca said, "Laws do not persuade just because they threaten." The same is true with lawyers. You are never going to be able to harangue or cajole jurors to set their willpower and good sense aside and blindly do as you implore. Eschew the bombastic ranting. Lead them, coax them, guide them in forming the mental images of your case story.
TIP 44 - USE PARALEPSIS (APOPHASIS) TO STRENGTHEN YOUR PRINCIPAL ARGUMENTS BY DECLARING THAT YOU WON'T MENTION OR SPEND ANY TIME ON THE MINOR POINTS THAT ALSO STREGTHEN YOUR CLAIM OR CONTENTION
Paralepsis or paralipsis (apophasis) is the technique of mentioning something by declaring that it shall not be mentioned or treated only cursorily. (1 - example) (2 - example). I recall an article by trial advocacy guru Professor James McElhaney in the March 2007 of the ABA Journal that provided this paraphrased example of a variation of paralepsis to highlight minor supporting points without putting too much stress on them: "Ladies and gentlemen, I'm not going to ask you to do something that Judge ___ has told you must do. Forget about the evidence that showed (state your minor point and the evidence supporting it). Forget about the evidence that showed (state another of your minor points and the evidence supporting it). Forget about the evidence that showed (state another of your minor points and the evidence supporting it). I want you to forget about that evidence for now so you can concentrate on (indicate your principal point).
