JURY ARGUMENT

TIPS & TACTICS 4

Tips #31-53

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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. See Tip 44. 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..   

TIP 32 - MAKE YOURSELF A LIST OF EVOCATIVE, EXPRESSIVE SIMILES AND METAPHORS AND EXTENDED METAPHORS.

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. Caveat: Avoid commonplace cliches (tired, trite, overused, hackneyed phrases).   

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 (1): "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."

TACTIC 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. 

TACTIC 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."

TACTIC 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.

TACTIC 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. See Tip 20. 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 must discount and disapprove what opposing counsel is telling you." The purpose of the ad hominem argument is to transfer negative feelings about the credibility of the opposing speaker as a person to what the opposing speaker is saying. Note that "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.)"   

TACTIC 42 - "WHERE'S WALDO?" - CALL ATTENTION TO MISSING BUT AVAILABLE 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 juxtaposition 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 with the missing witness' name on an empty chair or draw a stick figure picture of the missing witness on the whiteboard or flipchart and superimpose 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 (indicating the opposing counsel) 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 (1) 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.

TACTIC 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)." The mention of something in disclaiming the intention of mentioning it, e.g., "not to mention," "we're not making a point of," "it's not necessary to consider," etc., is one of those rhetorical devices that good persuaders employ, whether they know it's paralepsis or not.

TACTIC 46 - REENACT SCENES FROM YOUR CASE STORY IN THE PRESENT TENSE, BECOMING THE KEY CHARACTERS IN QUESTION.

When retelling key segments of the story of your case, assume the role of the character you are talking about. For example, if you are reenacting present tense dialogue, assume the manner of the actor in question, e.g., if you are talking about a brusque and overbearing cop trying to intimidate a witness, adopt the tone of voice and mannerisms of the cop to the extent consistent with the evidence; if you are talking about how the babysitter violently shook the baby, get a doll and shake it while adopting  the aggressive attitude and words of the babysitter. The idea is to convey the mental image that you want the jurors to carry into the deliberation room. You do this by providing them with a live dramatic reenactment during the body of your argument

TIP 47 - WHEN TRYING TO PERSUADE HUMANS, CONSIDER HUMAN NATURE.

When we are trying to persuade laypersons with arguments in a courtroom, we need to think about the nature of our audience. They are all homo sapiens, i.e., human beings, with some similar traits. What is human nature? What makes human beings tick? Here are a few possible principles of human nature that may bear consideration by those of us who are trying to persuade an audience of jurors. Each of these observations that is correct confirms in a small way the fact that humans tend to arrive at conclusions and make decisions subjectively rather than through objective critical thinking and reason:

• People tend to believe what they want to believe.
  

• People tend to project their own biases or prejudices upon situations and want to have their biases and prejudices confirmed .
  

• People tend to generalize from a specific event.
  

• People tend to get personally involved in the analysis of an issue and tend to let their feelings overcome a sense of objectivity.
  

• People are not good listeners and hear selectively, hearing only what they want to hear.
  

• People are eager to rationalize their opinions and decisions.
  

• People are often unable to distinguish  what is relevant (facts of consequence)  from what is irrelevant (facts that do not make an event, occurrence, act, or state of mind either more or less probable than not).
  

• People are easily diverted from the specific issue at hand.
  

• People are usually unwilling to explore thoroughly the ramifications of an issue, tending to over-simplify the complex.
  

• People often judge from appearances. They observe something, misinterpret what they observe, and make errors in judgment.
  

• People rarely think carefully before they speak, allowing their feelings, prejudices, biases, likes, dislikes, hopes, and frustrations to supersede careful thinking.
  

• People rarely act according to a set of consistent standards. Rarely in their lives do they critically examine the evidence and then form a conclusion. Rather, they tend to to do what they want to do and to believe what they want to believe and then find whatever evidence will support their actions or their beliefs. They often think selectively: in evaluating a situation they are eager to find reasons to support what they want to support and they are just as eager to ignore or disregard reasons that don't support what they want.
  

• People often do not say what they mean and often do not mean what they say.
  

• People feel the need to pinpoint an enemy to blame for their anxiety, frustration, and desperation.
  

• People want to feel that they 'belong" and that others do not. 
  

Some of these observations may be off the mark, but most of us will find more than a grain of truth in others. You probably could add a few to the list.  What's the point? The more we know about human nature, the better prepared we will be to deal with our audience of courtroom decision makers, all of whom are human.

TIP 48 - IF THE TRIAL JUDGE DOES NOT AUTOMATICALLY SEND THE ADMITTED EXHIBITS TO THE JURY ROOM FOR USE DURING DELIBERATIONS, REMIND THE JURORS TO ASK FOR THE EXHIBITS.

As a matter of course, some trial judges will send the admitted exhibits to the jury room at the end of the case when the jurors retire to deliberate. Other judges do not send exhibits to the jury room during deliberations unless the jurors call for them. From watching many mock trial deliberations, I can assure you that not every jury will realize it has the right to ask the court to have the exhibits send back to the deliberation room. Thus, if there are exhibits that support your theory of the case, be certain to tell the jurors that they have a right to ask for the exhibits. Urge them to do so by a note as soon as they have elected a foreperson: "There are a number of important exhibits in this case. You have a right to examine the exhibits as part of your deliberations. So I urge you, as your first order of business after you've elected a foreperson, to send a note to His/Her Honor Judge ___ asking to have all the exhibits sent back to the jury deliberation room. There is no substitute for having these exhibits in front of you when you are discussing the case."

TIP 49 - DON'T MAKE AN ARGUMENT THAT DOESN'T PASS YOUR SMELL TEST.

Trial lawyers have a nose for natural fertilizer. As the great trial lawyer Percy Foreman once said, "I sell bullshit. I don't buy it." So when an argument doesn't pass your smell test, don't make it. Even if you think you can sell it, chances are that one or more of your jurors will have an olfactory sense as good or better than yours, recognizing the smell emanating from your words as barnyard droppings (or as "rotten mackeral by moonlight*," shining and stinking at the same time).

" He is a man of splendid abilities, but utterly corrupt. He shines and stinks like rotten mackerel by moonlight." Senator John Randolph of Virginia, commenting on fellow lawmaker Edward Livingston.

 

TIP 51 - IF YOU ARE GOING TO USE EXPLANATORY SELF-GENERATED WORD TEXT VISUALS IN ARGUMENT, MAKE THEM WORK FOR YOU.

Software presentation systems such as PowerPoint or Keynote can be used effectively in argument to support your story, to illustrate the application of the jury instructions (law) to the facts, to support your claim (contention), and/or to add emotional impact. The best slides are often the ones with very few words, e.g., an aerial view of a key scene downloaded from Google Earth, a photo of a crime scene or witness, etc. These "few words" slides are winners because they have little meaning without your narration. They force you to be a vital part of the message. But sometimes you need a slide with explanatory word text. If so, here are some things to consider when using explanatory text slides.

Use presentation slides sparingly in argument when presenting word text. Use a clear sans serif type font, e.g., Helvetica. Be generous with white space. Avoid slides with too many words. Use short words in short sentences. Jurors don't like explanatory slides containing only a centered title of one or two words. They prefer full sentences. Use proper grammar. Proofread your spelling. Left justify margins. Avoid overly bright colors that distract the viewer. Black on white or white or yellow on dark navy blue are okay. You will find lots of software presentation tips on the Internet, e.g., here are some for PowerPoint presentations: (1)(2),(3),(4) Consult the Internet as part of the prosess of designing your own jury argument slides.  

TIP 50 - WHEN THE FIRST "GOOD MORNING" GOES OVER LIKE A LEAD BALLOON, SAY "LET ME TRY THAT AGAIN"

Picture this. It's the morning of your jury argument. You're sitting at counsel table, ready to begin your argument. You have butterflies in your stomach, but they are flying in formation. The judge says, "You may begin your argument at will, counsel." You stand and approach your chosen spot in the courtroom. You look at the jurors and say, "Good morning." Two of the jurors mumble back what might be a "Good morning." The rest are silent. If you accept the lackluster response of the jurors, you've started with a whimper not a bang.

Here's the tip that will change whimper into a bang. When you get a disheartened response to your greeting, in a strong voice say "Let me try again. Good morning ladies and gentlemen!"  The jurors will almost always respond to that second "Good morning" with a Hallelujah chorus of enthusiastic "Good mornings." Everyone will have a good natured laugh, and all will be right for you to begin your argument. (This also works with "Good afternoon." )  

TIP 52 - USE VERBAL COMMANDS TO GAIN THE JUROR'S ATTENTION.

Listen to some good speakers and you'll find that many of then use verbal commands. Try using them in your openings and closings when you want the jurors to pay particular attention to a point you are getting ready to make. (Did you notice that each of the previous sentences were commands.) Here are some examples of verbal commands: listen, listen to this, now listen, hear me on this, now look, look here, look at this, keep in mind, this will make sense if  you __, I want you to __, consider this, consider __, critically evaluate __, examine __, try to __, think about __, think of an example, use __, use your common sense to __, calculate __, draw on your common life experience, draw on your intelligence, outline __, organize__, compare and contrast __, discuss __, discuss among yourselves whether __,   

TIP 53 - USE THE WORD "NOW" AS A VERBAL SIGNPOST FOR CHANGES IN TOPIC

Some of the best lawyers I know use the short word "NOW" in argument (and in openings) as a verbal signal to the jurors that a new topic is going to be discussed. It helps if you presage the word "NOW" with physical movement of your position, e.g., take a couple of relaxed steps  to the side or diagonally immediately before3 saying "NOW." [You may have your own favorite words or phrases, e.g., "skip a line," "new paragraph," "let's change the subject," "we need to move to another issue," etc., to  to alert the jurors to topic change; if not, "NOW" does the trick.]

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The Presumption Flowing from an

Absent Witness Jury Instruction

Note that the trial judge in some jurisdictions will give an absent witness instruction to the effect that if a party has it peculiarly within its power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable. See Graves v. United States, 150 U.S. 118 (1893). It is typically held that the propriety of giving the absent witness instruction is within the discretion of the trial court. Such an instruction is not warranted if the defense does not adequately show that the government possesses the sole power to produce the witness. (1) (2 - In some jurisdictions, e.g., MA, a party must obtain approval from the trial court before making a "failure to call witnesses" jury argument) (3 - NY instruction) (4 - NJ). But see Livermore, Absent Evidence, 26 Ariz. L. Rev. 27, 28-29, 40 (1984); (1) (2) (3)

Texas Case Law Re Comment on the Other Side's Failure to Call Wtinesses: During its jury argument, the prosecution may comment on the defense's failure to call a competent and material witness who was available to testify and whose existence is reflected in the record. The prosecution may even argue the defense failed to call the witness because the witness's testimony would have been unfavorable to the defense.See Lemon v. State, 298 S.W.3d 705 (Tex. App. [San Antonio] 2009] where the comment was improper because the witness' existence was not reflected in the record before the jury.

Aside from the presumption flowing from an absent witness instruction, don't forget that the defense can always argue that reasonable doubt may arise not only from the evidence produced, but also from a lack of evidence.