Posted On: April 28, 2009

Breaking The Spell

When a theme is powerfully presented, a lawyer can cast a spell over a jury. Whenever a spell is created by opposing counsel, it must be broken as soon as possible.

To do so in an opening, you may want to invoke a dramatic statement that shifts attention to your case, the theme of which is compellingly distinct from that of the opposing counsel’s. For example, in a case alleging sexual harassment the defense began as follows: “Ladies and gentlemen, this case will demonstrate that just as it is important to eliminate sexual harassment in the workplace, it is equally important to eliminate false claims of harassment, which is exactly what we have here today.”

Other techniques of introduction include clearly stating your purpose or asking a question central to the case. For example: “The government is going to ask you to take away the freedom of Sergeant Smith for defending our freedom. … Now, what crime did he commit? His military working dog barked at people.” (The Baltimore Sun, March 14, 2006, quoting Capt. Jason Duncan in the opening for the defense of Sgt. Michael J. Smith in the Abu Ghraib prison case.) You can also begin by paying a compliment to the jury or appealing to the jury’s sense of self-importance: “In deciding this case you will be establishing the industry standard for the next 20 years.” Avoid introducing your case by stating that the opening cannot be considered as evidence. This only suggests that the jury should not listen to you and that what you are about to say is unimportant.

Because your listeners’ impressions of you bear on your persuasiveness, within the first five minutes of the opening you should ingratiate yourself with the jury. This isn’t hard to do. A courteous smile and a word of gratitude can help you establish much-needed rapport. There are different opinions about whether you should thank the jury for its attention during the opening, but I believe doing so can help humanize you and your client. A little courtesy can go a long way.

Ideally, within the first few minutes of your opening statement, each juror will have a favorable impression of you and a clear understanding of your overarching theme. Such themes are vital. In addition to drawing attention to your case, they can give the jurors a figurative lens through which to view all the information that is to follow and help them organize it as you wish them to.

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Posted On: April 10, 2009

Moral Emotions and Persuasion

Yesterday the New York Times ran a fascinating column from David Brooks on the concept of "moral emotions." Citing recent studies by neuroscientists and others, the column suggests that the moral reasoning we learn in philosophy classes is merely an "aesthetic" justification for instinctive convictions we have about right and wrong. In the same way a bad smell repels, moral error repels. We know beauty when we see it; so, too, with moral goodness. Moral decisions, Brooks suggests, are driven by emotion.

Trial lawyers should familiarize themselves with the research Brooks cites. It matters to our profession, though I question whether it will change how we argue cases. Skilled advocates know, and have known for centuries, that a key component or persuasion is pathos. In speaking to juries, we always appeal to emotions. As Abraham Lincoln said during his trial lawyer days, to persuade a person, one first has to capture the heart. If a case concerns a traffic accident, we describe the wreckage in vivid detail or speak movingly of the plaintiff's struggle to walk afterwards. This is common, effective if not overwrought, and often wins verdicts.

But some lawyers concentrate primarily on logos. If the research Brooks cites stands the test of time, logic in legal argumentation may come to be seen as merely the "window-dressing" for what we know by instinct to be right or wrong.

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Posted On: April 1, 2009

Bringing in New Clients

In an earlier post, I discussed finding a mentor as one solid strategy for associates looking to land new clients. The key phrase on this subject, in my view, is “one day at a time.” Developing business tends to be a gradual process for young lawyers. Don’t discount the kindness or wrath of Lady Luck, but here is another tip for those looking to build a practice: Establish yourself as an expert.

The task is accomplished in small steps over a long period of time. If you are a litigation associate focusing on discovery, learn everything there is to know, and then some, about discovery problems. Once you master the nuances of interrogatories, requests for production of documents and privilege logs, seek experience in taking and defending depositions. Start second-chairing in trials and work your way forward to assuming more responsibility.

Don’t wait for colleagues or partners to lead you to the water. Improve yourself at every opportunity. Read all you can about the areas of law you wish to master. Talk to more experienced lawyers, attend educational programs, and study the work product of those you respect.

In other words, pickle yourself in the subject. Day by day, your expertise will grow--and so will your reputation.

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