The Art of Advocacy

As a long-time trial lawyer who has spent many years advising the next generation of trial lawyers, I was buoyed by the response to last month’s Anatomy of a Trial One-Day Boot Camp for Young Trial Lawyers. When I got back home to Baltimore following the event, several participants emailed me to tell me how eager they now are to put their newly learned strategies to work trying their own cases. Keep in mind, many of the 100-plus lawyers who attended this year’s boot camp have yet to try a case. That they are still enthusiastically preparing for their first trial could not please me more.

In a day when negative press on law schools and professional prospects for graduates is ubiquitous, it’s good to know that young lawyers are still landing jobs and staying focused on what matters most in their careers: representing their clients to the best of their abilities.

It’s been nearly ten years since the ABA’s Section of Litigation, in conjunction with my Litigation Institute for Trial Training (LITT), held our first boot camp for young trial lawyers. I was pleased to see that the excitement for this annual event has not waned at all.

Last month's boot camp was held in Chicago, as part of the Section of Litigation’s annual conference. We took a different approach to the event this year -- focusing on the tragically notorious trial of Sacco and Vanzetti, two Italian immigrants who were found guilty of murder and armed robbery following a short, politically-laced trial fraught with poor lawyering and even poorer officiating. The original trial, back in 1921, took place at the height of the Red Scare. The two defendants had been branded as anarchists, which turned public opinion – as well as the jury’s – against them. This profoundly affected their trial to such an extent that we will never know whether their guilty verdict was a just one. Though this case is more than 90 years old, the lessons it offers trial lawyers are timeless.

With the Honorable Judge Marvin J. Garbis of the US District Court of Maryland presiding, participants in the boot camp were guided by some of the country’s most respected trial attorneys and judges through a mock trial of Sacco and Vanzetti today – with demonstrations of opening statements, direct examinations, cross-examination and closing arguments. Woven into the schedule were lectures by several outstanding speakers and question-and-answer sessions featuring panels of some of today’s brightest legal minds. Click here for a full list of speakers and details of the day’s events.

It is good to know that the terrible misfortune that befell Ferdinando Sacco and Bartolomeo Vanzetti nearly a century ago will not be repeated. That is, so long as our next generation of trial lawyers remains vigilant to the goal of ensuring that all their clients receive the best possible legal representation and, of course, a fair trial. If last month’s “Anatomy of a Trial” boot camp is any indication, the next generation is right on track.

When Jim Archibald and I wrote Pleading Causes of Action in Maryland several years ago, our goal was to help every courtroom attorney in Maryland better analyze the strengths and weaknesses of their cases as they prepared initial pleadings in both state and federal courts. We wanted to offer straightforward, yet comprehensive advice, individually tailored to address the specifics of virtually every cause of action in Maryland.

Now, in response to public demand, we’ve brought the book even more up-to-date, with Pleading Causes of Action in Maryland, Fifth Edition, available for purchase, starting this month, through the Maryland State Bar Association. With this Fifth Edition, we not only bring the book current through December 2012 but we’ve also done our best to make the book even more comprehensive, with concise, yet individual treatment of more than 130 causes of action – including citations to over 1,700 cases, 380 sections of the Maryland Code Annotated, and 200 provisions of the Maryland Rules.

One area of extensive revision in Pleading Causes of Action in Maryland, Fifth Edition, is Section 6.19, which focuses on foreclosure proceedings. Our revisions reflect the myriad new rules and regulations created by the Maryland legislature since 2008, in response to the avalanche of foreclosure filings – and the widespread abuses – that have occurred in recent years. As the legislature is likely to continue revising foreclosure laws going forward, practitioners are advised to consult the latest statutory enactments, along with amendments to the Code of Maryland Regulations and Title 14 of the Maryland Rules.

To purchase a copy of Pleading Causes of Action in Maryland, Fifth Edition, click here or contact the Maryland State Bar Association.

Nearly 100 years ago, our country experienced one of the most tragic court cases in our judicial history: that of two Italian immigrants who received death sentences following a jury trial, marked by blatant judicial bias, attorney missteps, and heartbreaking circumstances.
 
Though I wrote about this case about five years ago, the lessons learned from studying the case, Sacco and Vanzetti, are as valuable to young trial lawyers today as they were in 1921, when a jury exclusively comprised of white males, after only five hours of deliberations, found these two men guilty of armed robbery and murder. They were sentenced to death, due to the unfortunate combination of a biased judge, mediocre defense attorneys, a vastly unfair trial and public fears of anarchy that dominated newspaper headlines in the days following World War I. 

The case provides plenty of fodder for a detailed analysis of how trial attorneys today – and their clients -- benefit from techniques in direct examination, cross examination, opening and closing statements that were absent in the case against Sacco and Vanzetti. We will study these components in detail at my Anatomy of a Trial: One-day Boot Camp for Young Trial Lawyers, which is being held at the Section of Litigation Annual Conference in Chicago on April 24, 2013, from 8:00 am until 5:30 pm, at the JW Marriott.

The Honorable Marvin J. Garbis, of the US District Court for the District of Maryland, will serve as presiding judge for the program. Click here for a full list of speakers. To register, go to www.ambar.org/sac2013 and click on the Anatomy of a Trial tab.  

The Blog of Legal Times posted a helpful article last week on the liberal use of acronyms and abbreviations in legal writing. Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit doesn't like them. The article cites a June opinion in which Judge Silberman complained about the excessive use of acronyms by both sides of a case: "Here both parties abandoned any attempt to write in plain English, instead abbreviating every conceivable agency and statute involved, familiar or not," he wrote. The same frustration surfaced in court last week, according to Legal Times, as the Judge chided counsel in a different case for using arcane acronyms.

The Judge makes a valuable point. A cardinal rule of legal writing is to respect your audience's need for clarity. In most instances, the judge (or judges) hearing your case will not be as familiar with the abbreviations and jargon of the matter as you are. Of course, acronyms are handy; they often seem to make sentences read more smoothly. But there is always a way to avoid them--especially if they will confuse or annoy the court.

Trial lawyers are professional arguers. Clients employ us to argue on their behalf -- to be their advocates. Notwithstanding this paramount role of argument in our work, few of us have given much attention to argument as the subject of study.

In learning to think like a lawyer during law school, most of us develop a sense for recognizing a strong legal argument, the kind a judge is likely to find compelling. There is, however, much more to the process of crafting a winning argument than possession of the analytical tools learned in law school.

Your argument as a lawyer is purposeful speech. Its purpose is to persuade a decision-maker to decide in your client’s favor. Your argument as a lawyer should not be confused with the logician’s concept of argument. The logician’s concern is not with persuasion, but with arriving at a valid conclusion from a series of premises.

As a professional arguer, you are retained not merely to influence beliefs but to induce the action of a favorable decision by a judge or jury. This desired action is the goal that should guide the preparation and presentation of your argument. A possibly apocryphal story is that when people heard the Greek orator Demosthenes, they often remarked, “My, what a pretty speech.” When they heard Cicero, they shouted, “Let us march!” Your goal, then, is to make the argument that not merely impresses but, like Cicero’s, induces the desired action.

Before preparing an argument, whatever the context, you should first determine precisely what it is you hope to achieve. As Casey Stengel warned, “If you don’t know where you’re going, you might end up someplace else.” Sometimes your goal will be obvious, such as winning a defense verdict for your client. Often, though, your goal may not be this clear. Think about your goal carefully. Then, describe it in one clear sentence so you know exactly where you are heading.

Circumstances sometimes dictate that your sights be set on a lesser target than the total victory your client may demand. In defending a civil case in which a defense verdict appears impossible, for example, your goal might be to limit damages. In some cases, you may identify multiple goals; in a summary judgment argument, for example, you may seek to win the motion but, if that fails, your goal becomes to persuade the judge and opposing counsel that the case has less settlement value than they think. Winning the motion may be the primary goal and the secondary goal to posture the case for a favorable settlement.

There may be intermediate goals that, if achieved, will facilitate retaliation of the ultimate goal. To understand the intermediate goals of an argument, consider the concept of claim. As Stephen E. Toulmin, in his 1983 book, The Uses of Argument, explains: claim, in this context, refers to a proposition that you, as an advocate, seek to have accepted by your listener.

In a routine personal injury case, much of your argument for the plaintiff would be concerned with the reasons, supported by the law and evidence, that the plaintiff’s claim of negligence should be accepted. The jury’s acceptance of this claim is an intermediate goal of your argument. The ultimate goal of your argument, of course, is the award of a substantial plaintiff’s verdict. In your typical argument, there may be several claims that provide the logistical building blocks that lead your listener to the desired outcome.

In the example of the personal injury case, these claims might be that the defendant was negligent by driving drunk, the defendant’s negligence caused the plaintiff’s back injury, and the back injury prevented the plaintiff from returning to work for two years. The jury’s acceptance of each of these claims is the intermediate goal of your argument.

Other goals include Clarence Darrow’s belief that “the main work of a trial attorney is to make a jury like his client,” or inducing the jurors to identify with you – to believe you are similar to them and, therefore, a person they can trust. If the jury identifies with you and likes your client, the probability of a favorable verdict is materially enhanced.

When preparing an argument, keep your ultimate goal clearly in mind. As you think through your case, continually test any point you might make by asking, “How will this help to achieve my goal?” In golf, every stroke you take should advance your ball toward the hole. In argument, every point you make should also advance your goal.

The great thing about expert witnesses is they are, well, experts. Most likely, they know all there is to know about the subject matter your case involves or you wouldn’t have hired them. You may well be tempted to huddle up with these brilliant minds and involve them in your litigation strategy and preparations.

To some extent this instinct is correct, especially in cases dealing with issues unfamiliar to you. If you are handling a medical malpractice suit involving a cerebral hemorrhage, a subject you have never encountered before in your career, a good expert can become a valuable guide through the uncharted wilderness of neurosurgery.

In general, but especially in very technical litigation, consider your expert a full member of the team. You can review deposition testimony with your expert and ask him or her for help in planning the deposition of adverse witnesses. Sometimes it’s helpful to invite your expert to sit in during depositions so that you can obtain immediate advice.

But be careful. Much of what you communicate to your expert is subject to discovery. Even information you consider protected under the lawyer/client privilege or work product doctrine may be discoverable if you share the information with the expert.

Before opening communications, be sure to familiarize yourself with the rules of evidence. The challenges of discovery relating to experts can leave you in turmoil unless you meld knowledge of the rules with local customs and case strategies. Even so, take care not to show any material to a testifying expert that could, if produced in discovery, damage your case irreparably. Similarly, do not have conversations with the expert that you don’t want disclosed.

In federal court, you must also be mindful of writing used to refresh an expert’s memory prior to or during testimony. Rule 612 provides that the opposing party has a right to the production of such material. State rules of evidence governing discovery and disclosure will vary; for example, the Maryland counterpart to Rule 612 only requires production of the writing if it is used during the hearing. The requirements also vary according to the type of expert (testifying, hybrid/fact, or non-testifying or consultant expert).

Federal disclosure requirements for experts retained to testify solely regarding opinions are the most complex. You must disclose the expert’s name as well as a written report containing:

• A complete statement of all opinions to be expressed and the basis and reasons for the opinions;
• The data or other information informing these opinions;
• Any exhibits to be used in conjunction with the opinions;
• The qualifications of the witness, including a list of publications authored within the last ten years;
• The compensation received for the study and testimony performed; and
• A list of any other cases in which the witness has provided expert testimony, either in trial or deposition, for the preceding four years.

These initial disclosures may not be enough if you later develop additional opinions or evidence of importance. In that case, be sure to supplement the original disclosure or you may have to do without your expert. Rule 37 (c) provides for the exclusion of expert testimony if it is not properly disclosed to opposing counsel.

The federal requirements for hyrid/fact experts (for example, a physician who treated the plaintiff and will also render opinions) demand only that you disclose the witness’ name. Hence opposing counsel may wish to pose an interrogatory to ascertain further details and follow up with a deposition.

Experts engaged to consult but not testify are usually immune from discovery, though extreme circumstances can arise to pierce this immunity. For example, what if a testifying expert engages in extensive meetings with the consultant? The opinions shared between them could be brought to light – to the detriment of your case.

In state courts, the rules may vary. In Maryland, for example, there are fewer mandatory disclosure requirements for experts. Maryland law holds that the expert may prepare a report but it is not required. Maryland Rule 2-402(e)(1) provides that a party may, by interrogatories, require: the identification of experts intended to testify; the subject of the testimony; the findings and opinions about which the expert is expected to testify; the grounds of each opinion; and a report made by the expert, if one was prepared.

While these evidentiary matters are arcane, ignoring their intricacies can be devastating. If you write your neurosurgeon expert detailed letters about the client, you may find your own words coming right back at you in court. Ultimately, you want to get the most out of your expert’s knowledge without compromising your case.

The heart of most trials is direct examination, through which you persuade the judge or jury of your case. My previous blog focused on the art of avoiding leading questions when conducting direct. This post discusses other essential aspects of direct, including preparation, organization, and immunization.

Lawyers talented at direct examination are well prepared, as are their witnesses, and they appreciate how to elicit vivid testimony. Much of the work transpires well before a lawyer calls the witness to the stand. Of course, you should master the law and facts of the case – your case and the opposing side’s. You should also be cognizant of your overall theme and the core elements you need to establish.

As you organize individual examinations and the lineup of witnesses, assure yourself that you are proving each necessary element. For example, if the case is breach of contract, make sure the witnesses will allow you to establish the elements of contract and breach, as well as the appropriate damages.

You should also prepare for what may happen on cross-examination. If your witness is vulnerable on a particular subject, consider “immunizing” him or her by raising that very subject on direct.

Of equal importance is your preparation of the witness. To ready your witness for the courtroom, you may want to ask practice questions, explain the pertinent themes and discuss your goals. You can also review documents with the witness and even videotape mock testimony. Whatever you do, avoid calling a witness before you know what his or her answers will be.

Once you and the witness are prepared, how do you proceed? Generally, it’s best to start and end an examination with the strongest testimony. Judges and juries tend to remember best the beginning and conclusion of a given experience. During an examination, strive for short, clear and precise queries. Seek fluency between question and answer. Develop a rhythm to capture the attention of the listener.

Establish the dialogue with the witness so that questions vary from open-ended to closed-ended to transitional. An open-ended query might be: “Mr. Smith, tell the jury what you observed when you arrived at the scene.” Here is a closed-ended question: “Mr. Smith, when you arrived at the scene, did you actually see the automobile collision?” And a transition: “Mr. Smith, I would like to turn to the subject matter of your health on the day of the collision.” Such variety helps stimulate your audience.

You can also vary and support your testimony with the use of exhibits and demonstrative aids. For example, after asking a witness if he saw Mr. Smith hit Mr. Johnson on the head with a chair in a bar, you could ask that witness to diagram the position of the two men within the room. The ensuing sketch will accentuate and affirm the testimony.

Similarly, it is helpful to use corroboration and repetition to delve into the details of a given event. For example, if you want to emphasize the viciousness of an alleged assailant, here is how you might heighten the jury or judge’s attention to the matter:

Q: What happened after you saw Mr. Smith hitting Mr. Johnson over the head with the chair?
A: Mr. Johnson fell to the ground unconscious.
Q: Could you see Mr. Smith’s hands clenched around the legs of the chair during this incident?
A: Yes.
Q: How tightly was he holding the chair?
A: He was gripping the chair hard with both hands.
Q: How could you tell?
A: I could see his knuckles bulging.
Q: Could you see his face at the time?
A: Yes.
Q: What did you observe about his face?
A: His teeth were clenched and he had an angry facial expression.
Q: When he was hitting Mr. Johnson over the head with the chair, how high did he raise the chair?
A: Smith raised the chair over his head the full length of his arm.
Q: Can you demonstrate to us how Mr. Smith was swinging the chair without actually using the chair?
A: I believe I can.
Q: With Your Honor’s permission, may the witness stand up?”

COURT: No, let’s move on.

Such dramatic testimony doesn’t happen by accident. The lawyer in this example has probably prepared the witness for those questions and determined that such imagery would aid the overall case. An effective direct examination, then, presents credible and vivid testimony that develops the right themes, using a variety of evocative questions.

Direct examination is considered to be the most difficult part of a trial, even more difficult than most cross-examinations. My years as a Baltimore trial lawyer have taught me that one of the main challenges of direct examination is the prohibition against asking leading questions. The reason leading questions are prohibited on direct is that the jury must hear evidence from the witness and not from the lawyer.

Such questions can be posed only in limited circumstances, for example, when confronting a hostile witness, reviewing uncontroversial matters, questioning children or senior citizens, or introducing new topics in your examination with a topical oral sentence.

What then is the distinction between leading and non-leading questions? Simply stated, a leading question suggests the answer. A non-leading question does not. “It rained last night?” is a leading question. “Did it rain last night?” or “Do you recall whether or not it rained last night?” are both non-leading questions.

Asking non-leading questions creates difficulties in controlling the testimony and the witness. When you ask skillful leading questions, as permitted on cross-examination, you control the testimony by almost testifying for the witness: “It rained last night?” “You came home after midnight?” When you must ask non-leading questions (“Can you tell us what the weather was last night?” you could get more explanation than you want. (“Well, I can’t recall, but I do remember that the road was very slippery and cars were skidding all over the place.”) Many lawyers have been stunned by a witness’s response to an open-ended question on direct exam. Frequently even the most careful preparation of a witness is no safeguard against the witness’s desultory response to your questions.

As you ask questions during direct, beware of the distinction between prohibited leading questions and leading questions that may be tolerated. These include questions that are used to save time and do not relate to important facts, or that refer to facts that are generally in evidence. “You attended the Spago tea”” is leading, but it is more efficient than “Did you attend the Spago tea at noon on June 11, 2000.” If the record is saturated with testimony that the witness was at the Spago tea at noon on June 11, the shorter, leading question will probably be tolerated by opposing counsel and the court.

Sometimes in the heat of trial you may have trouble asking a non-leading question after an objection is sustained. This predicament is not unusual, especially for young trial lawyers. Don’t panic. Try rephrasing the query using the word “whether.” For example: “You then went to the bar after the reception?” could be rephrased: “Can you tell us whether you went to the bar after the reception?”

Generally, however, leading questions should be avoided on direct and saved for cross-examination, where you can use your questioning to greater control the testimony.

When Abraham Lincoln was asked his secret for winning lawsuits, he reportedly replied that he understood the opposition case better than the opposition understood its own case. Lincoln was articulating a basic truth about trial strategy: that winning involves the art of immunization and refutation. In simplest terms, this means persuading the judge and jury that your argument makes more sense than the opposition’s – something you can only do when you know the opposition’s case as well as your own. Yet immunization and direct refutation are two important aspects of persuasion that -- while understood by many -- are mastered by few.

In refutation, you reveal weaknesses in your opponent’s argument in a way that makes them unacceptable to the judge or jury. To prepare a good refutation, consider all possible points you can use to undermine your opponent’s case. Use “blocking” to identify the best ones. Blocking involves writing the opponent’s main points in an outline or diagram form, followed by a list of refutation points. Once you have blocked your opponent’s argument, you can more easily select the points you need to refute and the method of refutation that will work best. Be selective in choosing what to refute: you want to go with the strongest points and not over-saturate your listener.

Methods of refutation can include immunization, direct response and rebuttal. Immunization involves introducing your own case’s weak points before your opponent has the chance to introduce them for you. Proper immunization shows your listener that you have considered all sides of the case – both sides’ strengths and weaknesses -- and are convinced that your position is the only one that makes sense. When you are the first to present an argument, provide an explanation of any week points in your case up front. This often has the added benefit of putting your opponent off balance so that he or she cannot present an effective response.

There are two basic types of immunization: forewarning and inoculation. Forewarning involves alerting your listener to what you anticipate your adversary will argue. In a personal injury case where contributory negligence is a defense, you might argue: “The defense will contend that Mr. Smith was also negligent and that his contributory negligence bars his right to recover from the defendants.” Alerting your listener to the opposing point of view prepares your listener to absorb the opponent’s attack without abandoning your point of view.

Inoculation involves forewarning followed by some explanation of why the adversary’s argument is defective. This fuller explanation can be reserved for a subsequent time, such as during rebuttal, but it is sometimes better to give a full explanation at the outset of your argument. This is particularly true when you know the defense is going to raise a crucial issue in the case and you want your listener to hear your version and explanation first.

Before you attack your opponent’s argument, however, you must first have built a superior case of your own. Almost all refutation involves not only destroying your opponent’s view of the case but also substituting your own theme or version. Exceptions are limited but do exist. For example, if you are arguing that your opponent has failed to satisfy a burden of proof, you may not need to present a counterpoint.

When you create a positive theory you do more than simply give your listener a more believable alternative scenario. A positive theory may also help persuade the judge or jury that the other side’s burden of proof has not been met. In a case where contributory negligence bars recovery, a plaintiff may want to emphasize the defendant’s own negligence as she argues that she was not contributorily negligent. The theory here is that the stronger your argument regarding the defendant’s negligence, the less likely the judge or jury will find the plaintiff’s negligence contributed to the event.

As you study your opponent’s case, consider whether the opposing side is staying true to the facts or running contrary to the evidence. If your opponent’s argument plays fast and loose with documents or testimony at key points, prepare to demonstrate this to the listener. This is a key part of refutation, and it is important in these instances to use a direct and forceful approach: “Don Smith never testified that the light was green. Let us review what Don Smith actually said.” That said, do not select insignificant factual errors for attack. Doing so may annoy your listeners and come across as a waste of time.

As part of your direct response, you may also find opportunities to challenge your opponent’s evidence. For example, you can show an opposition witness’s bias by revealing that an alibi witness is the defendant’s mother or spouse, or that the government’s witness is testifying as the result of a plea bargain.

You may also find opportunities to demonstrate that your opponent’s version of the case is improbable or that it is based on irrelevancies or minor evidence that has been given undue weight. Additionally, you can also point out where significant evidence has been ignored by the other side. Take the following example: say that during argument in a civil case for assault, your opponent argues that the plaintiff was the first aggressor. However, your opponent avoids sharing the fact that before arriving at the scene, the defendant went home and searched for an old hunting knife that he brought with him to the scene. Clearly, you would argue that your opponent ignored the very conduct that shows the defendant’s intent.

There are many more ways to refute opposing points in a trial. In my book, The 12 Secrets of Persuasive Argument, I review them in more detail. The bottom line is, study your opponent’s case carefully. It could be the difference between winning your case and losing.

Recently I was reminiscing about a day long ago when I met briefly with one of our country’s most admired and iconic men – Supreme Court Justice Thurgood Marshall – and what I learned from him about the value of moot court in preparation for trial. I had shared my recollections in a speech I presented at a ceremony of the American College of Trial Lawyers but I think the values of the lesson are worth sharing here as well.

I was an 18-year-old college student when I had the opportunity to meet with Justice Marshall, who was then Solicitor General of the United States. I had been writing a thesis about him for a college class and thought it might be interesting to meet him in person. I called and explained myself to his secretary who laughed at my apparent naiveté but remarkably arranged the meeting. Once I was at his office, Justice Marshall made me feel comfortable and at ease almost instantly. He had a great buoyant laugh and a wonderful, slightly baudy sense of humor. Once we got down to business, I questioned him about Brown v. Board of Education.

This is what he told me: In preparing for oral argument in the Brown case, he had conducted a moot court session at Howard University Law School. Shortly thereafter he was scheduled to begin oral arguments before the United States Supreme Court. As a young college student, I wasn’t familiar with the expression “moot court,” so he explained to me that moot court was the term used to describe a simulated argument for practice. With moot court, he elucidated, “You can iron out the wrinkles of your argument and observe the reaction of your listeners for purposes of strengthening your case.”

Justice Marshall went on to explain that the moot court session for the Brown case seemed to go on forever, with law students – in their roles as mock judges -- peppering him with an endless stream of questions. At around midnight, one particular student asked him a question he simply could not answer: “By this time I was shocked and also weary,” he said. “It was after midnight, but, young fella, the duty of a lawyer is to push forward. And so we did, and we worked out an answer.”

At this point in the story, Justice Marshall paused briefly, but then continued: “Then the day of the hearing, damned if one of the Justices didn’t ask the same question. I just looked at the Justice; put my hand on my chin, looked down and gathered my thoughts, and pow – right in the kisser -- nailed the question.”

This remarkable meeting confirmed my desire to become a trial lawyer. More than forty years later, I often think about my brief time spent with Justice Marshall and the stories he took the time to share with a young college boy who simply had the audacity to call him up and ask for an interview. I also think often about the value of moot court and what our country might be like today had not this great man also seen its value.

“To see is to believe,” we hear quite often. For trial lawyers today, it’s an important message to keep in mind. Visual aids work wonders in the courtroom and thanks to the myriad technologies offered today, creating a visual impact has never been easier.

As a longtime Baltimore trial lawyer I regularly use visual aids ranging from simple charts and diagrams sketched on an easel to multifaceted PowerPoint presentations. The combination of high-tech imagery and low-tech witness examination often creates vivid, lasting memories in the minds of jurors. As technology has evolved, there are now even more ways to show exhibits in a courtroom. Keep in mind, however, that it is not sophistication that counts but how well the imagery persuades.

Studies indeed show that people are more likely to believe what they see than what they hear, but different people process information in different ways. With that in mind, it is best to vary your visuals so that your message is fully received, in one version or another, by each of your listeners. Some individuals are most receptive to logical and straightforward information – best expressed in charts, graphs and technical exhibits. Others benefit most from comparisons, stories, examples and familiar analogies. Photos and more vivid images may be a better conduit of information for this latter group. Increasingly, judges and younger jurors are far more accustomed to visual images than are older baby boomers, so it is more important than ever to maximize your use of visuals and their variety.

Remember, even with a heavy use of visual aids, uniformity and monotony will reduce their impact. Your challenge is to capture and hold your listeners’ attention throughout your arguments. After an hour of videotape, for example, move into a colorful, high-tech PowerPoint presentation, and follow that with information on a chart that you highlight using a manual pointer. The art of balancing demonstrative aids and testimony can be comparable to directing a play or film. When you show the evidence, how you display it and what you say about it play a role in how effective you will be.

As is true with the presentation of any evidence, the use of exhibits in argument should be strategic. Consider whether to use exhibits that already exist and were introduced as evidence during the trial as well as exhibits created solely to enhance your argument. In a contract dispute, for example, the written contract constitutes not only the formal embodiment of the agreement of the parties at the time but also concrete evidence of the parties’ true intent. You can argue effectively that it is not necessary to rely solely on the plaintiff’s present recollection of events surrounding the execution of the contract. Instead, you can find in the actual contract a record of the parties’ intent. You may, however, need to create a new exhibit for that contract to have maximum impact: Would a model or reproduction help hit the mark? Would a timeline help make the alleged sequence of events easier to follow?

Though most courtrooms today have projectors, monitors and other devices at the ready for attorneys to use, it is always advisable to meet with the judge’s law clerk or the court’s technology advisor to discuss in advance your technology needs, both generally and logistically. Details such as where a projector and monitor should be positioned for optimal juror viewing, and where best to set up your other demonstrative aids for maximum impact, are best planned out well in advance.

Another thing to consider as you iron out your visual aids is how to respond if opposing counsel seeks to use your exhibits. You may or may not find it appropriate to accede to the request. Your opponent might effectively discount or reverse the power of your exhibits and use them to his or her own advantage. On the other hand, you might appear ungracious or petty to the jury if you were to refuse. Therefore, discuss in advance how your opponent may use your exhibits. One of the advantages of PowerPoint or other downloadable presentations is that they are controlled from your laptop computer. When you are finished with your argument, you can turn off your computer and return to your seat. Rarely would opposing counsel gather the courage at that point to ask if he or she could use your laptop.

Finally, despite the numerous advances in technology and their ease of use, always come prepared for the worst. Be sure to have a backup copy of all your presentations, and make sure you have an appropriate programmer or technical advisor on hand in case something requires immediate attention. Know your visuals sufficiently so that you can face the jury while you present, and not focus your attention solely on the demonstration at hand.

Keep in mind that though demonstrative aids can be a powerful weapon in your arsenal, American juries can quickly become cynical if the gloss is stronger than the message you are conveying. High-tech presentations can be and should be used to support your argument, not detract from it.

Several weeks ago, the Bar Association of Baltimore City honored me with the Charles H. Dorsey, Jr. Mentor Award. While it is gratifying to be honored by friends and colleagues, what made this award even more special was that I knew Mr. Dorsey well and respected him deeply. As long-time Executive Director of Maryland’s Legal Aid Bureau, Mr. Dorsey was a champion of the poor and underprivileged. He was also a patient and dedicated mentor to young lawyers trying to give back to society. I was just a law student in the early 1970s when I clerked for him and the Maryland Legal Aid Bureau. Yet the lessons I learned during that time still impact me more than 40 years later.

I remember Mr. Dorsey’s words when I spoke with him after a particularly unpleasant encounter at the clerk’s office of the circuit court. I had gone to court to file some papers and the clerk was blatantly discourteous. It was clear she viewed work for the Legal Aid Bureau as somehow of less merit than other cases filed there. The encounter had left me both disheartened and frustrated. Yet Mr. Dorsey took the high road, as he always did.

“It is our job by the strength of words and persuasion to change this attitude, which is not just in Baltimore but in many jurisdictions in the United States – and even within the legal profession,” he said. “The best way to help change people’s minds about the importance and value in what we do is by our actions in becoming involved with those who need our legal assistance and are too poor to afford a lawyer.”

Mr. Dorsey’s words carried me through many other unpleasant encounters, and I still believe there is no higher service we can perform as lawyers than to support the Legal Aid Bureau and its goal of ensuring that even the poor and infirm have equal access to the legal system.

I also try to heed Mr. Dorsey’s example of mentoring young lawyers striving to be outstanding attorneys and community leaders. A few straightforward suggestions to that end:

· Find a mentor -- not just inside your office but also outside;
· Give your best to every assignment, no matter how small or seemingly inconsequential;
· Learn from your mistakes;
· Tailor your work or your legal arguments to your particular audience, noting carefully what resonates and what does not;
· Become involved in your local and state bar associations, as well as in your community and in the issues that matter most to you; and
· Exhibit civility, professionalism and high ethical standards in everything you do.