Posted On: August 27, 2009

Discovery Problems and their Solutions

The American Bar Association (ABA) has just released the second edition of Discovery Problems and their Solutions, a book I co-authored with Paul W. Grimm and Charles S. Fax. It is available for purchase on the ABA website.

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Posted On: August 3, 2009

Avoiding Ethical Minefields When Preparing and Examining Witnesses

At a recent ABA annual meeting in Chicago, I had the pleasure of moderating a session on ethical issues in the legal industry. The Maryland Daily Record did a nice job of writing up the session in an article entitled, ABA panel tackles 'ethical minefields.'

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Posted On: August 3, 2009

Lemon of a Metaphor

They don’t teach storytelling in law school, but the skill goes hand in hand with trial advocacy, especially when it comes to closing arguments. Figurative language is often key to the telling of complex stories, in that it simplifies and helps listeners visualize abstract concepts and large amounts of information. A case in point: the defense attorney's closing argument in the trial of ex-Rep. William Jefferson (D-La.). Last week, the lawyer repeatedly called the government's a “lemon of a case.” (As reported on in The Blog of Legal Times). While the “lemon” is certainly not the most unique of metaphors, people are quick to understand the idea--and it's a metaphor that you can develop. The attorney accuses the government of taking a bad case and "squeezing lemons" to "make lemonade", but when it comes down to it, a lemon's a lemon. It may be cliche, but it's a memorable verbal hook on which to hang the entire prosecutorial effort.

For closing arguments, I am partial to using figurative analogies. Unlike literal analogies, which compare cases that are similar in relevant characteristics, a figurative analogy is a kind of story, sometimes a metaphor, developed to compare unlike characteristics. Listeners, judges or juries often create their own “stories” or themes in making decisions. A figurative analogy in a closing argument can help the listener accept your point in the terms of a narrative, thus allowing him or her to subconsciously come to the conclusion you desire.

When a listener believes he or she has come to a conclusion independently, your argument and case theory become more acceptable. When you use a figurative analogy, it is important that you relate the facts of your case to the analogy’s elements. Frequently, analogies are left undeveloped; hence, their full effectiveness is lost. There are a number of tried-and-true figurative analogies passed among trial attorneys. Don’t be shy in using such material. As defense counsel, I relied on one familiar analogy in a recent criminal case (See Anatomy of a Trial for further details) to illustrate the concept of reasonable doubt and bring up the subject of holes in the government’s case:

"Let’s assume you go home tonight and you have a box, and you put a cat in the box and a mouse. You close the lid. You come back an hour later, the mouse is gone. One could firmly believe that the cat ate the mouse. What if you come back later and you put the same – it has to be the same cat this time. You put the cat in a box and the mouse, close the lid, come back an hour later again, and there are holes in the box. No longer would you firmly believe the cat ate the mouse.

And I want to talk to you now about some of the holes in the government’s case, about the burden they failed to meet.”

Such analogies can hold the jury’s attention and encourage your audience to envision the case in terms that are favorable to your client. The parallels between the case and the analogy may surprise the jurors and cast the decision in a new light. A figurative analogy is a general comparison, a broad-brush image of the case that will remain in the jurors’ minds and hopefully shape the decision in your favor.

When used effectively, figurative language, which might seem trivial or window dressing (such as the repetition of a metaphor), when combined with a strong grasp of tone, style and language, can be very persuasive. In a closing argument, reliance on vivid language powerfully and effectively communicates the message you want your listener to receive. Give consideration to the arrangement of your works, developing a rhythm and injecting appropriate similes and metaphors to help enrich your style. We remember best what we hear first and last.

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