Over the weekend, Sarah Lyall of the New York Times posted an interesting story on the Oscar Pistorius murder trial in Pretoria. It seems the famous South African runner with prosthetic legs has been something of a basket case while testifying in his own defense. “He retched. He cried, then sobbed, then grew hysterical,” writes Lyall. “It got so bad that at times the judge Thokozile Matilda Masipa, had to adjourn the court while Mr. Pistorius regained his equilibrium.”
What effect might this outpouring have on the outcome of the trial? It’s impossible to read the mind of the decision maker – in this case, the judge, as South Africa doesn’t have a jury system like ours – but I am generally wary of expressing emotions so ardently in court. And not because the emotional content of argument is unimportant. On the contrary, because emotion is so crucial, it must be handled with care.
I never forget this Cicero quote: “Mankind makes far more determinations through hatred, or love, or desire, or anger, or grief, or joy, or hope, or fear, or error, or some other affection of mind, than from regard to truth, or any settled maxim, or principle of right, or judicial form, or adherence to the laws.”
Rhetoricians consistently agree that emotion plays an essential role in persuasion, and psychologists teach that people usually make decisions by emotion and then validate them by logic.
Even judges who must make logical decisions, are no automatons who merely plug facts into a legal framework. Indeed, the presumed dichotomy between reason and emotions is in some respects misleading. Emotion, in fact, provides motive and meaning for even our most “rational” decisions.
That’s why I encourage lawyers to consider the emotional content of their overall cases. At every stage of the trial, emotion plays a role. But if emotion is overdone – if quiet tears become sobs, if frustration blows into a tantrum – listeners may find it difficult to relate.
In the Pistorius case, according to Lyall’s story, observers of the trial are wondering whether the defendant is being sincere or acting. And if his anguish on the stand is sincere, what is its source?
Ideally, when a defendant takes the stand, the emotional content of his claims will support the logic of the overall argument. In this case, his torment seems to be eclipsing the argument altogether and causing people to question his sincerity.
To some extent, judges and juries will question the sincerity of all witnesses. That’s part of the job. Still, defense lawyers should strive to present testimony that compels the audience to set aside its skepticism, at least for awhile.
Over the weekend, Sarah Lyall of the New York Times posted an interesting story on the Oscar Pistorius murder trial in Pretoria. It seems the famous South African runner with prosthetic legs has been something of a basket case while testifying in his own defense. “He retched. He cried, then sobbed, then grew hysterical,” writes Lyall. “It got so bad that at times the judge Thokozile Matilda Masipa, had to adjourn the court while Mr. Pistorius regained his equilibrium.”
I have always believed that persuasion is an art form and that trial lawyers who master it will find themselves on the winning end of many of the cases they bring to trial. Rhetoric is the art of selecting how to persuade others to your side. Therefore it too is an art form and, indeed, lawyers who master the art of rhetoric will be the most persuasive. In the second edition of my book, Anatomy of a Trial: A Handbook for Young Lawyers, which was released last month by the American Bar Association, I outline in detail the ways in which mastering the art of rhetoric can work to a lawyer’s advantage in the courtroom. Many of my examples and inclusions are new to this edition.
In Anatomy of a Trial, I use real-life, running commentary to show how to hone your persuasive approach to the audience you are trying to reach. For example, the persuasive technique you might use to get your significant other to agree to some bold purchase would likely not be the same as what you might use to ask your boss or the managing partner at your firm to spend company dollars on an equally bold purchase. For some audiences, an emotional appeal might be the most persuasive, as in, “Honey, how many times in our lives will we have an opportunity like this – let’s live it up!” On the other hand, with the boss, you would likely find that an emphasis on long-term cost cutting or business development would be far more persuasive rhetoric.
Similarly, the most persuasive rhetoric in a trial before a jury of 12 in Los Angeles might not be the most persuasive rhetoric for a trial before a jury of six in Kansas, or before a judge, with no jury, in Maryland. For this reason, in my second edition of Anatomy of a Trial, I include commentary and examples from three trials. Two of the trials were featured in the original edition of the book and the third is new to this edition. The first trial involves a high-profile criminal case featuring several famous names on the political scene; the second is a civil case involving a medical malpractice claim in Maryland. The trial added to the second edition of the book involves a non-jury civil case I tried in federal court in Maryland. I have included it to show how the rhetoric you might choose for a case tried before a judge will likely differ from the rhetoric you would use before a jury.
You can find the new edition of Anatomy of a Trial: A Handbook for Young Lawyers on the ABA webstore. It will soon be available in an e-reader version as well.
While opinions vary on which aspect of trial is most important, I suggest it is voir dire, the process of selecting the jury. The term has its origin in the oath taken by jurors to speak the truth. The word “voir” is said to derive from the Latin word “verum” meaning truth. Many cases are lost the second the jury is sworn in. Great advocacy cannot save the day when the wrong jury is in the box. Trial lawyers should pay more attention to preparing for voir dire, and even consider asking the court to permit submission of a jury questionnaire.
Many years ago there was a trial lawyer who was known to state confidently in open court during jury selection, “Your Honor, I have no need to strike any of these good people seated in the jury box. They all are very satisfactory to the defense.” This same lawyer could never understand why he lost so many cases. He lacked appreciation for the importance of attempting to learn the jurors’ predispositions, beliefs and values, the keys to reaching minds and hearts of jurors in the courtroom deciding the case. All of us possess predispositions to think and behave in a particular way. These predispositions are based on experience and play a role in jury deliberations.
While the process of voir dire permits trial counsel to pose questions to the jury panel to discover bias, only some courts, such as Texas state courts, permit full voir dire where lawyers directly ask questions to the individual prospective jurors. In Maryland, state courts offer a limited voir dire. This is true for mosts courts across the country, including most federal courts, barring a cause celebre. The process involves counsel preparing questions for the trial judge to pose. A few states, including Maryland, further limit voir dire questions to elicit responses only for the purpose of using strikes for cause as distinguished from posing a question to determine if peremptory challenge should be made.
Last week the Maryland Daily Record gave us a helpful rundown of several new Maryland Court of Appeals modifications to some often-asked voir dire questions. The Court of Appeals, while rendering a couple of recent opinions, clarified when certain questions proposed by counsel should be asked: In Pearson v. State, 432 Md., Court of Appeals, No. 49, September Term, 2013, Maryland's highest court held that (1) a trial court need not ask during voir dire whether any prospective juror has ever been a victim of a crime, but, on request, a trial court must ask during voir dire: “Do any of you have strong feelings about [the crime with which the defendant is charged]?” and (2) when all of the state’s witnesses are members of law enforcement agencies and/or when the basis for a conviction is reasonably likely to be the testimony of members of law enforcement agencies, on request, a trial court must ask during voir dire: “Have any of you ever been a member of a law enforcement agency?”
Pearson emphasized my previous point that Maryland employs limited voir dire. That is, in Maryland, the sole purpose of voir dire is to ensure a fair and impartial jury by determining the existence of specific cause for disqualification. Unlike many other jurisdictions, facilitating the intelligent exercise of preemptory challenges is not a proper purpose of voir dire in Maryland. Thus, a trial court need not ask a voir dire question that is not directed at a specific cause for disqualification or is merely fishing for information to assist in the exercise of preemptory challenges.
The court explained its reasoning why a trial court need not ask during voir dire whether any prospective juror has ever been the victim of a crime: a prospective juror’s experience as the victim of a crime lacks a demonstrably strong correlation to a mental state on the part of the juror that would give rise to specific cause for disqualification. However, the Court of Appeals held that on request, a trial judge must ask during voir dire whether any prospective juror has strong feelings about the crime with which the defendant is charged. State v. Shim, 418 Md. 37, 54, 12 A.3d 671 (2011). The “strong feelings” voir dire question makes the “victim” voir dire question unnecessary by revealing the specific cause for disqualification at which the victim voir dire question is aimed.
Pearson held that on request a trial court must ask the “strong feelings" question with the following phraseology: “Do any of you have strong feelings about [the crime with which the defendant is charged]?” Pearson disapproved phrasing the question as a compound question, i.e., “Does any member of the jury have such strong feelings about [the charges in this case] that it would be difficult for you to fairly and impartially weigh the facts?” The reason the court disapproved of the compound question is that it shifts from the trial judge to the prospective jurors the responsibility to determine if the prospective juror is biased.
If a prospective juror responds affirmatively to the “strong feelings” voir dire question, that juror should be individually questioned by the attorneys; or on request, by the trial judge, and the trial judge would then determine whether that prospective juror’s strong feelings about the crime with which the defendant is charged constitutes specific cause for disqualification.
Pearson also held that where all of the state’s witnesses are members of law enforcement agencies and/or where the basis for a conviction is likely to be the testimony of members of law enforcement agencies, a trial court on request must ask during voir dire: “Have any of you been a member of a law enforcement agency?” A defendant is entitled to know whether a prospective juror has worked in the law enforcement field if all of the state’s witnesses and/or the witnesses whose testimony is reasonably likely to be the basis for a conviction are members of law enforcement.
Just as with the “strong feelings” question, the appeals court stressed that a juror is not automatically disqualified just because she responds affirmatively to the “member of the law enforcement agency” voir dire question. After the prospective juror is individually questioned by the attorneys or, upon request, by the trial court, the trial court determines whether or not the prospective juror’s having been a member of a law enforcement agency constitutes specific cause for disqualification. The court noted in Pearson that its holdings in that case shall apply prospectively as of February 21, 2004, the date Pearson was decided.
Trial lawyers in Maryland are eager for the Rules Committee of the Court of Appeals to adopt individual voir dire. Alas this wish is unlikely to come true. For more insight into voir dire, see Anatomy of a Trial: A Handbook for Young Lawyers, 2nd Edition (ABA, March 2014)
Even the most careful pleader will sometimes learn new facts or change views of a case after filing an initial pleading. This new information or perspective may very well develop after the running of the statute of limitations. Fortunately federal and state law provides some recourse to attorneys in this potentially troubling situation.
To accommodate for changes in strategy or new revelations, the relation back doctrine gives attorneys the opportunity to amend their complaints well after the limitations deadline has passed. But courts will not always approve of late-breaking amendments. For attorneys who find themselves shifting gears in the middle of a case, knowing the relevant rules can be crucial.
In federal court, Federal Rule of Civil Procedure 15 (c) is the key text allowing amendments to pleadings to “relate back” in time to the filing of the original pleading. The point of the rule is to prevent parties from hiding behind the statute of limitations to fend off new but legitimate claims or defenses arising out of the same conduct, transaction or occurrence set forth in the original pleading. State laws will vary. In Maryland, for example, there is no specific relation back provision but the doctrine is sometimes recognized as a result of common law court decisions.
To illustrate how relation back works, let’s consider the troubles of Mr. Smith, who has been fired from his job as head concierge at The Bloomfield Hotel. According to the manager, Mr. Wells, Smith was fired because he had stolen a television. Smith denied the allegations. Even so, two weeks later Wells circulated an internal newsletter explaining Smith’s firing in an attempt to curb future theft. Smith consulted a lawyer and filed a complaint against the hotel alleging wrongful termination and libel. A week after the complaint’s filing the hotel’s counsel filed a motion to dismiss the libel count for failure to state a claim upon which relief could be granted. Smith’s counsel decided to amend the complaint to clarify the libel count, but he filed the amendment after the running of the one-year statute of limitations.
Question: Will Smith’s amendment to the complaint to clarify or change the libel claim relate back?
Most likely yes. In both Maryland and federal court, relation back will be permitted to modify claims for clarity as long as the operative factual scenario in the amendment remains essentially the same as the scenario articulated in the original complaint. However, if Smith discovered that his claim actually ought to be for slander (against an employee who told others about the alleged theft), the answer becomes more opaque.
In federal court and in Maryland, an amendment is generally permitted to relate back if it shifts from one legal theory to another -- for example from libel to slander -- as long as the alteration relates to the same facts as originally alleged. But if the shift is so drastic that the defendant arguably had not been given adequate notice of the conduct that gave rise to the original claim, the amendment might not relate back.
In other words, relation back works only if the desired modifications focus on the same basic dispute. You can change weapons mid-battle, but you can’t move the battlefield altogether.
In our hypothetical, an amendment that changes the claim from libel to slander would relate back because the new legal theory is based upon the same facts as the initial claim (the allegations of theft, the firing, and the newsletter).
Suppose, however, that two weeks later, Smith discovers that Bill, the hotel’s head of housekeeping, was the person who had told manager Wells that Smith had stolen the television. Smith believed that Bill was lying and Smith’s lawyer added him as a new defendant.
Will the amendment adding Bill to the case relate back?
In federal court, Bill could be added, and the amendment would relate back. When an amendment seeks to substitute a defendant, correct a mistake made in the naming of the defendant, or even add another defendant, the amended pleading will still relate back to the original pleading. Again, this rule is subject to the “same conduct, transaction or occurrence” standard. In Maryland however, relation back is often not permitted when a new defendant is added, but is permitted to correct a mistake made in naming the defendant.
Interestingly, in Maryland, the addition of a plaintiff will relate back as long as the defendant was on notice of the claim against him. In federal court, adding a plaintiff requires analysis of multiple factors, e.g., whether or not the defendant is prejudiced by the amendment and whether the defendant had adequate notice of the claim against him. Overall, however, the federal rule remains slightly more liberal than the Maryland policy.
Given the complications of the relation back doctrine, litigants should do all they can to settle on a core theory, strategy, and factual foundation well before the statute of limitations becomes an obstacle. This isn’t always possible, of course, and when it isn’t, a good first step is to brush up on Federal Rule 15(c) and Maryland cases on the “relation back” doctrine.
Defendant’s Counsel: “Your Honor I would like to call to the stand Mr. Smith, the defendant in this case.”
Plaintiff’s Counsel: “Objection Your Honor, may I approach?”
The Court: “Counsel, please approach.”
Plaintiff’s Counsel: “Your Honor, I object to Mr. Smith’s desire to now testify about the underlying facts of the case in light of his invocation of his Fifth Amendment right against self-incrimination during the discovery phase of this case.”
Defendant’s Counsel: “Your Honor, Mr. Smith during the discovery phase was confronting criminal charges based upon the same underlying facts of this civil case. Smith couldn’t respond to interrogatories or deposition questions while his freedom was at stake. Now the criminal case has been resolved, and Smith is able to testify.”
The Court: “Counsel I’m going to have to review the case law on this issue. Let’s take a brief recess.”
Will the court sustain the objection? Most likely the answer is yes.
While there is no bright line rule that controls situations like this, federal and state courts have established what is known as the “midnight witness rule.” Developed through many cases over the years, this “rule” effectively prevents a civil litigant from putting on the stand at trial a surprise witness who had previously invoked his or her Fifth Amendment privilege during the discovery phase.
In the annals of Maryland case law, Kramer v. Levitt, 79 Md. App. 575, 588 (1989), perhaps best articulates the reasoning behind the midnight witness rule. The court held that “when a defendant in a civil action pleads his privilege against self-incrimination in response to discovery requests, the defendant is prohibited from testifying at trial on matters pertaining to these requests.”
The Kramer court added that “if a party is free to shield himself with the privilege during discovery, while having the full benefit of his testimony at trial, the whole process of discovery could be seriously hampered.”
Faith v. Keefer
The Kramer decision, however, is not the last word on the subject. In Faith v. Keefer, 127 Md. App. 706, 724 (1999), the Court of Special Appeals made it crystal clear that an individual who invokes his Fifth Amendment privilege is not “forever precluded from giving testimony in any form about the previously undisclosed matter.” (Emphasis on original.)
In Faith, the plaintiff’s wife had been killed while a passenger in a car driven by the defendant Keefer, who was allegedly intoxicated and speeding. As a result of the accident, Keefer was charged with various crimes in addition to being named as a defendant in the civil suit filed by the decedent’s husband and children. At the outset of Keefer’s civil deposition, his attorney noted that Keefer intended to invoke the Fifth Amendment because of the pending criminal charges, and clearly stated that at the conclusion of the criminal matter his client would be available to answer questions. Keefer’s attorney had notified opposing counsel of this position well before the deposition.
After the conclusion of the criminal matter, and four days after the close of discovery, Keefer’s attorney wrote to opposing counsel that Keefer was available for deposition. Keefer also provided answers to interrogatories. But the plaintiff opted not to depose Keefer.
Almost a month after Keefer’s offer to be deposed, the plaintiff filed a motion in limine that sought to exclude Keefer’s testimony and belated interrogatory answers because he had earlier invoked his Fifth Amendment privilege. The trial court denied the plaintiff’s motion, finding that the plaintiff was not prejudiced by the late answers. The trial court’s decision was affirmed on appeal.
The Court of Special Appeals identified several key factors that supported the trial court’s decision to allow Keefer’s belated testimony, including:
(1) Keefer was seeking a relatively brief delay in discovery, until the resolution of his pending criminal charges;
(2) Keefer advised the plaintiff of his intent to assert the privilege for a limited time in advance of the deposition; and
(3) Keefer offered to resume the deposition when the criminal charges were resolved.
Importantly, the Faith court noted that the discovery process was not “seriously hampered” by a deponent asserting his Fifth Amendment privilege when “it [was made] clear at his deposition in February of 1998 that he intended to rely on his privilege only during the pendency of the criminal charges.”
In the scenario described above, since the defense counsel did not attempt to comply with Faith and notify plaintiff’s counsel in advance that Smith would testify at trial, the court will not allow Smith to testify. Had defense counsel notified plaintiff’s counsel before trial that Smith was prepared to either waive or abandon his Fifth Amendment right against self incrimination, the decision may or may not be different. The ruling would be fact-specific and depend on the circumstances.
When your client is confronted by the need to exercise the Fifth Amendment right against self incrimination in a civil case while a parallel criminal case is pending, consider the discovery deadline and the proposed trial date in the civil case. Notify opposing counsel in writing and by motion that your client intends to invoke his or her Fifth Amendment privilege. You should also make it clear to opposing counsel that your client will assert this privilege until the criminal matter has been resolved, which includes the appeal process, if that is a factor.
The key, as described in Faith, is that as long as your adversary has time to depose your client before trial, the discovery process will not be “seriously hampered,” and you can keep the option of having your client testify at trial.
If your troubled client waits until the eve of trial to waive his or her Fifth Amendment privilege, Maryland law would support a trial court’s decision to bar the testimony, thus invoking the so called “midnight witness rule.”
I’ve encountered my share of mendacious witnesses on the stand over the years. Sometimes the witnesses have been blatant perjurers. Other times witnesses have feigned lack of memory. I’ve learned that how to deal with duplicitous witnesses depends on one’s style, the nature of the case and the facts available with which to confront the witness. Here are some tips on how to deal with the dishonest witness testifying against your client:
- You can impeach the witness by demonstrating that the testimony is unbelievable in leading the witness to exaggerate and extend his or her false statements to the improbable;
- You can impeach the witness by a prior inconsistent oral statement, using extrinsic evidence, i.e., calling another witness to demonstrate that the testimony of a prior witness is false;
- You can impeach the witness by a prior inconsistent written statement; and
- You can impeach the witness by demonstrating his or her bias.
Here are two historic illustrations of defense attorneys successfully employing some of these strategies to impeach mendacious witnesses. Consider them as you adapt your own style and method in your cases. The first example involves cross-examining a witness who feigns loss of memory: The 1820 trial of Queen Caroline, whom King George had charged with adultery.
The case involved one Teodoro Majocci, an Italian servant and purported eyewitness. If believed, his testimony was more than sufficient to establish the queen’s guilt. The great luminary of the day, Henry Brougham, later Lord Chancellor, appeared for the defense in the House of Lords. At first, Majocchi appeared immune to Brougham’s cross-examination. To each question he replied, “Non mi ricordo,” meaning, “I do not remember.” Brougham asked a series of questions to Majocchi that, if he were truly an eyewitness to wrongdoing, he would be able to answer. To each question Majocchi responded “non mi ricordo.” Among the many things to which Majocchi responded “non mi ricordo” was a question about the position of the rooms of the queen and her alleged paramour, Bergami. This was striking in that the case against the queen relied in part on the position of the queen and Bergami’s rooms, signifying closeness and ease of communication.
In closing argument, Brougham demonstrated that Majocchi’s repeated answers of “non mi ricordo” defied belief. As John Lord Campbell explained in his book, Lives of the Lord Chancellors and Keepers of the Great Seal of England, Brougham argued that Teodoro Majocchi was a witness of great importance and went on to say:
He was the first called and the last examined…There is an end, then, of innocent forgetfulness, if when I come to ask where the rest slept, he either tells me, “I do not know,” or “I do not recollect”; because he had known and must have recollected that when he presumed to say to my learned friends, “these two rooms were alone, near and connected, and others were distant and apart”: when he said that, he affirmed his recollection of the proximity of those rooms and the remoteness of the others. He swore that at first and afterward said, “I know not,” “I recollect not” and perjured himself as plainly as if he had told your Lordships one day that he saw a person and the next day he never saw him in his life.
This impeachment of the Italian servant is an example of ridiculing a perjured witness in closing argument without direct impeachment during the examination of the witness.
Now consider the cross-examination of a blatant perjurer on the witness stand: The attorney conducting the cross-examination was Weymouth Kirkland, a prominent Chicago attorney in the early 1900s who was defending an insurance company against a plaintiff claiming entitlement to funds because the policyholder had drowned after falling off a ship. As recounted by Paul Stryker in The Art of Advocacy, the defense asserted that the policyholder, Mr. Peck, did not fall from a ship and drown but rather, that he walked off the ship very much alive. In cross-examining the ship’s cook, Mr. Weymouth proceeded as follows:
Q: How long had you known Peck?
A: Fifteen years.
Q: You knew him well?
A: Yes, sir.
Q: How did you happen to see his body?
A: I looked out of the porthole.
Q: You recognized it beyond doubt as the body of Peck?
A: Yes, sir.
Q: Did you make an outcry when you saw the body?
A: No, sir.
Q: Did you ask the captain to stop the ship?
A: No, sir.
Q: What were you doing when you happened to look out of the window and saw the body?
A: I was peeling potatoes.
Q: And when the body of your old friend, Peck, floated by, you just kept on peeling potatoes?
A: Yes, sir.
During closing argument Kirkland did not argue to the jury that the cook’s testimony was false. Instead, he took a potato and knife from his pocket (you could bring knives into the courtroom in those days), rested his foot on a chair and began to peel the potato. As he did this, he said to the jury, “What ho! What have we here? Who is this floating past? As I live and breathe, if it isn’t my old friend Peck! I shall tell the captain about this in the morning. In the meantime, I must go right on peeling my potatoes.”
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.
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 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?
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?
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.
Trial lawyers be advised: don’t forget the five-minute rule. This rule pertains to the first five minutes of your opening statement. Some say it’s the most important part of the trial because jurors who form opinions about the case after the opening statement rarely change their minds during the rest of the case. And the first five minutes have the strongest impact.
The general rule is that, if you can’t engage your listeners immediately and take full advantage of the doctrine of primacy (also known as the first-impression effect), you might as well stay seated. The five-minute rule holds true whether you represent a plaintiff or a defendant, and whether you are the first to present the opening or the second.
When you present the opening for the plaintiff, the jury or judge will likely be hearing for the first time the nature of your case and what you will attempt to prove. When you represent the defense, you may confront the challenge of breaking the spell cast by the plaintiff’s counsel. In both circumstances, you had better present your side aggressively in the first five minutes or you will lose your listeners’ attention.
Here are four considerations for your next opening statement:
First, present a strong introduction. There are several ways to accomplish this. You might start with a compelling question that is central to the case, or you could start by telling a story. Humor and the creation of suspense are proven methods of captivating a jury. Another way to grab your jury’s attention right away is to begin with the main point of your case – but with no build up. For example: “In this case an innocent woman who dearly loved her husband is now falsely accused of hiring someone to kill him. Let me tell you about Mary Smith.”
Your second consideration should be to how to present a favorable impression of yourself. The judge or jury’s impression of you as a person directly bears on your persuasiveness. Demonstrate sincerity in your cause, compassion for the situation and appreciation for the attention of the listener. A courteous smile and a word of gratitude can go far. Be mindful to avoid obsequious behavior and body language that contradict for presentation. For example, when you introduce your client in a criminal case, keep your expression pleasant and your physical presence close so that the jury sees he is not a dangerous person or someone from whom to keep a distance.
Another thing to consider is the theme of your case. Every case should have a theme and, within the first five minutes of your opening, your judge and jurors should know what it is. Themes appeal to the organizational structure of our interpretation of events, they help listeners make sense of all the facts presented and they help hold listeners’ attention. The theme might embrace the facts of the case and reach to a higher or universal level. Here is an example: “This is the case of the careless landlord. He was careless because he failed to consider the safety of his occupants; he was careless because he failed to repair the screen door on the porch after he received numerous complaints; and he was careless because he could not care less about the children who lived there.”
Finally, once your theme is introduced, consider providing the judge or jury with a verbal outline of the main points and facts of your case. An outline can facilitate the learning process and help the listener focus on your theme as the case progresses. Studies show that we learn best when we are first provided with an outline of the subject matter that will follow.
Take the example mentioned above. If we want to outline the main facts of the case after we present our theme, we might consider something like this: “The landlord’s carelessness will be exposed by the following cold, hard facts: First, he ignored the calls of the child’s mother to repair the screen door; second, he did not repair the door even after receiving written notice from the neighbor that all the doors in the complex were defective and third, the landlord ignored his own contractor, who reported a problem with the defective door.”
While the first five minutes of the opening statement clearly offers challenges to any trial lawyer, these first five minutes also offer tremendous opportunities. They lay the groundwork for a winning case.
While trial and appellate lawyers today strive for that one technique that wins the case, it is often helpful to review historical approaches to client advocacy in mining for strategies. As far back as ancient times, advocates used many techniques of rhetoric that are still of value in today's courtrooms, as I have found in my practice as a Baltimore trial attorney.
In "Classical Rhetoric and the Modern Trial Lawyer," an article I wrote for the Winter 2010 issue of the American Bar Association's Litigation magazine, I covered this subject in great detail. I was joined by two colleagues, Ronald Waicukauski and and JoAnne Epps.
The article is embedded below. Click on the "+" button at the bottom of the embedded screen to enlarge the type. If the article interests you, consider reading The 12 Secrets of Persuasive Argument, published by the ABA in 2009.
I’ve written many times about the importance of hiring good jury consultants and the value of conducting mock trials. The Casey Anthony trial provides a perfect example of why it’s worth going through that time and expense.
While the media and the public have responded with shock and outrage at the verdict, jury consultants – including those who worked on the case – say they weren’t surprised. As reported in the Palm Beach Post, two mock juries, one conducted for television and one for the defense, both resulted in not-guilty verdicts.
Hiring a jury consultant certainly doesn't guarantee a win for your side, but it definitely helps you build a stronger case when you present before a jury. Jury consultants not only help in voir dire to “unseat” potential jurors who are most likely to be unsympathetic to your client. They are also the most qualified people to help your team conduct a mock trial – and there is no better way than a mock trial to explore how your overall case and all its parts will play with a jury. If done correctly, a mock trial will reveal your strategy’s general and particular flaws as well as its strengths. It will also give a feel for how individuals will react to – and think about – the evidence and arguments you intend to present.
To get the most out of the process, you have to provide the jury consultant with a summary of the case from both sides, jury instructions and a verdict sheet. It is also helpful to offer a draft of the pretrial order, which you should be developing by the time you are ready to present a mock trial.
The jury consultant will engage a research studio where you will eventually present the mock trial of your case to a group of strangers. These strangers – selected by the studio – should match the profile of the actual jurors who will hear your real case. How can you be sure that the “mock jurors” will match the profile of the actual jurors? You can’t – but you can make an effort to come close. Within a month or two of the trial, contact the jury commissioner for the court and, if possible, obtain a copy of the current jury list. The list is often available, though not always. Your jury consultant will pass the list on to the studio or research center, which will recruit people from its database who match the profile of the actual jurors. The participants are usually compensated about $100 per day, though that can vary by jurisdiction.
Before you come face to face with the group, you may need to consider which aspects of your case you should present. Be selective. It isn’t often that you can – or would even desire – to present your entire case at mock trial, particularly if the upcoming trial is complex and lengthy. Focus on the key aspects of your case: perhaps the opening statement and closing argument, crucial witnesses and any area about which you feel uncertain.
A good jury consultant can work with you to identify your goals of the mock trial. You may want to discern the type of jury that would be supportive of your case or identify the type of juror who could be harmful. You may want to learn how you are received as counsel. You may also need to know what further information the jury believes should be presented on behalf of your client.
Once you’ve sorted this out, the consultant can help you develop questions for a focus-group meeting following the mock trial and mock-jury deliberations. From this you can glean which witnesses were perceived as more credible than others – and why. You can also learn whether particular strategies you devised were stronger or weaker than you imagined.
To make the mock trial worthwhile, you have to give the opponent a fair shake by presenting the opposing side, including opposing witnesses and opposing counsel. Given that you obviously won’t have your real opponents to assist, you can ask colleagues to portray the other side’s counsel and witnesses. You may also have video depositions at your disposal.
Jury consultants and mock trials don’t come cheap. They can range from less than $10,000 to well more than $100,000. If money is a big issue, consider working with a jury consultant to create a mock trial that only deals with opening statements and perhaps one or two witnesses. Worse comes to worst, assemble your office staff in the conference room for a few hours and use them as mock jurors.
The bottom line is that preparation for a trial is key to its success. And there is no better way to prepare than with a good jury consultant and a well-run mock trial.
There will be cases in which victory will not be yours. In some of those cases, your client may want to appeal the court’s ruling. It is your job as her lawyer to protect this option to the best of your ability.
Bear in mind that appellate courts exist solely to review errors of law committed by the trial judge. In other words, your client cannot appeal simply because she wasn’t happy with the verdict.
Still, good trial lawyers try every case with a third eye – two eyes on the trial and the third on the record that an appellate court may ultimately review. They protect the appeal by making timely objections when appropriate and following up by a proffer when prevented from introducing evidence. Good trial lawyers get deeply familiar with the rules of procedure and evidence.
At all times during the trial, when good trial lawyers spot errors of any significance, they obtain a ruling from the judge. Without a ruling from the court, the trial lawyer has not preserved the right to appeal on that matter. Such was the fate of a lawyer who discovered what he considered to be jury misconduct. He never brought the matter to the attention to the judge. Ultimately, he found himself in court defending his omission.
This doesn’t mean that, as an alert trial lawyer, you must object to every infraction you see. Persistent objections will agitate judges and jurors alike, especially if many of these objections are overruled. A barrage of objections by you may cause jurors to think that you are trying to hide certain facts. Before you object, ask yourself: Will this objection help the case? Will it help in appeal? If not, it may be better left unspoken.
That said, certain objections are important in preserving an appeal: Be ready to object to summaries or charts coming into evidence that are not based on genuine data you have had the opportunity to inspect – or if that data is being misstated or mischaracterized by the opposing party.
Compound and leading questions, calls for a narrative, and “asked and answered” questions are often worthy of an objection, as are opposing counsel’s assumptions or misstatements of facts that are not in evidence, or that are argumentative or ambiguous.
Study the Federal Rules of Evidence, and, in particular, Federal Rule 404. This rule deals broadly with character evidence, providing that evidence of a person’s character is inadmissible to prove action in conformity with that character. It is only when character is an essential issue in a charge, claim or defense that the character evidence in question would be allowable. For example, if an individual is on trial for assault, evidence that underscores his peacefulness would be permitted. Federal Rule 404, and in particular, Rule 404 (b), which involves “prior bad acts,” is one of the most frequently cited rules of evidence. Objections can be made – and often are -- when the requirements of 404(b) are not fulfilled.
Be alert as well for times when your opponent asks a witness a question to which -- rather than answering -- the witness responds with a tangential narrative. At those points, you may need to object and ask that the testimony be stricken on the basis that the answer is not responsive or is otherwise improper. Similarly, it is your job to prevent lay witnesses from rendering opinions. Good trial lawyers will object when adverse witnesses stray from the facts of the case and into the realm of what they “think” or “assume.”
You must also object when a judge excludes your proposed jury instructions or gives a jury instruction to which you object. (Judges should give you an opportunity to make such objections at the bench.) If the judge does not grant your request to give a particular instruction, it is crucial that you include the proposed instruction in the record.
Oftentimes, trial lawyers are quick to object to comments and actions of opposing counsel and adverse witnesses, but less so when it comes to the judge’s questions. Keep in mind that objecting to a question or decision from the bench can be necessary to preserve the appeal. So too can the inclusion in the record of all exhibits. Before you rest your case, review all of the exhibits to confirm that you have not left anything out. It is a sad realization to discover, when preparing for an appeal, that the record is incomplete.
More about preserving and protecting the appeal can be found in chapter 11 of my new book, Anatomy of a Trial: A Handbook for Young Lawyers.
Closing arguments are one of the most pivotal parts of a trial. A well-tuned closing argument will sway both the hearts and minds of jurors, and will resonate with them as they begin deliberations. Occasionally, however, the boundaries of appropriate advocacy get crossed as trial lawyers endeavor to win at all costs on behalf of their clients. According to the New Jersey Law Journal, one such situation came to light just last week in the Garden State: the New Jersey Supreme Court set aside a $1.75 million verdict, saying a plaintiff’s lawyer went too far in his efforts to sway a jury.
In the case of Risko v. Thompson Muller Automotive Group, the plaintiff’s lawyer reportedly told the jury that if, during deliberations, a fellow juror says he or she doesn’t believe in awarding damages of over a million dollars, that juror is “ignoring the law” and should be reported to the judge. Though taken to task by the judge for that and other remarks, the jury still convened and awarded well over a million dollars in damages to the plaintiff’s estate. Ultimately the case found its way to the New Jersey Supreme Court, which determined that, indeed, the plaintiff’s lawyer’s remarks warranted a new damages trial.
The court’s verdict serves as a reminder about how to build a good closing argument – and the pitfalls to avoid. Start with the facts of the case that best support your theme, follow that with case law that corroborates the facts you’ve named, and deliver your message with your own engaging, personable style. In other words, follow a trail of logical reasoning and stay away from remarks that could be considered prejudicial or overreaching. It isn't always easy to deliver an emotionally engaging, persuasive closing without slipping into manipulation or hyperbole. But it's a challenge one is best advised to meet.
My latest book, Anatomy of a Trial: A Handbook for Young Lawyers, is now available for purchase through the American Bar Association website. The book demonstrates the techniques of effective trial advocacy by drawing on two real-life trials: a white-collar criminal prosecution and a medical negligence case. As a Baltimore trial attorney, I represented parties in both these trials. The book provides an overview of trials and trial strategy, with chapters on voir dire, opening statements, direct and cross examination, closing arguments, and protecting your case in appeal.
The book also features insightful commentary from five distinguished jurists: Hon. Marvin E. Aspen (Judge, United States District Court for the Northern District of Illinois); Hon. Mark A. Drummond (Circuit Judge, Eighth Judicial Circuit, Illinois); Hon. Marvin J. Garbis (Judge, United States District Court for the District of Maryland; Hon. Paul W. Grimm (Chief Magistrate Judge, United States District Court for the District of Maryland); and Hon. W. Michel Pierson, (Judge, Circuit Court of Maryland for Baltimore City).
The Wall Street Journal continues its postmortem of the Raj Rajaratnam trial in an article that offers insight into the potentials and the limits of jury research. The story reports that the jury consultants hired by Rajaratnam picked the jury they wanted--one that was skeptical of the government's case and sympathetic to the defendant.
A mock trial conducted in advance of the real trial told consultants that the defense counsel's case played best with "those without advanced-education degrees or financial sophistication and with relatively low- to middle-income jobs. Mock jurors who were members of the ethnic minority groups also were more sympathetic to Mr. Rajaratnam," the story reads. That description matched the jury that ultimately convicted the defendant, however, suggesting that jury research only gets you so far against a strong adversary.
That said, such reports shouldn't be taken as evidence against the value of mock trials and consultants. In some cases, they are essential to success. Given the comments of jurors after the trial, it would seem the defense had as good a jury as could be expected.
Had the government's case been a bit weaker, we could be talking about a surprise acquittal. In the end, the most one can do is position one's client as advantageously as possible relative to the evidence in question. Good, credible jury research generally advances that goal.
Judge Richard Holwell asked jurors not to discuss the trial of Raj Rajaratnam, but a few clever Wall Street Journal reporters managed to report this weekend about what went on during the 12 days of deliberations before the jurors delivered their guilty verdict.
For trial lawyers, any reading that offers a glimpse of the thinking and behavior of jurors can be helpful. The WSJ report surely isn't the whole story; it relies mostly on one juror's comments. Still, it confirms a few valuable lessons about trial advocacy.
In talking about the Rajaratnam's defense, the juror in the piece doesn't zero in on the substance of the argument. Rather, she emphasizes a weakness in the delivery. The attorney's voice, in particular, the jurors reportedly thought, was "monotone" and "tired." A problem like that has nothing to do with the facts in question or the law, but it does matter. How we speak colors what people hear. It determines more, perhaps, than our diction, although that, too, is critical.
The other lesson here I take as an encouraging one. The article states that the jurors believed from the beginning of deliberations that Rajaratnam was guilty, but they wanted to deliberate carefully. The juror who went on the record with the reporters said that the jurors "tried to poke holes in the government's case and wanted to like Mr. Rajaratnam[.]" They even "challenged each other, trying ot take the defendant's view to make sure they weren't blindly accepting the government's version."
In other words, the minds of the jurors were open to persuasion. The relatively superficial matter of the attorneys' delivery did not trump substance in the end. That's the sort of jury a defense attorney needs to prevail. Unfortunately for the defense counsel in this case, the fair-mindedness of jurors wasn't enough.
It has been widely reported that jurors’ cyber-surfing has wreaked havoc in the courtroom, with mistrials, appeals and overturned verdicts at record levels. Though largely the result of jurors’ chatting online about the trials on which they are serving, even jurors’ seemingly innocuous web expeditions have stopped trials in their tracks. Earlier this year, a judge in Florida declared a partial mistrial and threatened a juror with charges of criminal contempt after she was found to be conducting online research about head injuries during a capital-murder trial.
As judges grapple with the myriad complexities involved in keeping jurors off their Smart Phones, iPads and Facebook pages, lawyers can help mitigate the damage. Voir dire is a good place to start. In this social-networking age, trial lawyers should be routinely asking members of the jury pool whether they have Facebook accounts, Twitter accounts, even blogs. When hands go up, follow-up questions should include, “How often do you check your Facebook page?” “How often do you post?” “Do you Tweet?” and, if so, “How often?” This should tell you how plugged-in your potential jurors are.
Other questions will give you insight into where they go for information: You might ask, “Do you have blogs or websites you check daily or weekly?” and “What are they?” It might also be helpful to find out how they feel about Wikipedia – do they trust it as a source of information? And you might want to ask how often they Google. An individual who spends hours Googling and YouTubing may need to be reminded in no uncertain terms that trolling online for information relevant to the case is off limits.
As social-networking options evolve, trial lawyers should stay abreast of the latest forums so you not only know how to pose questions, but also how to conduct research. After all, ten years ago, no one would have needed to ask a juror if he Tweets. Today it’s a perfectly reasonable question.
If a potential juror shares that he has several blogs of his own, a few favored blogs on which he posts regularly, a couple of Facebook accounts he checks dozens of times a day and a Twitter account that keeps him hopping, it’s possible that he would ignore a judge’s instruction not to post anything about the case or not to do online research, even if said juror has the best of intentions. It’s just too pervasive. It’s akin to asking him to lock himself in a room with no windows for what could be a month or longer.
By no means is this post meant to suggest that every potential juror with an active social-media life be banned from serving on a jury. Increasingly, that runs contrary to the goal of selecting a jury of one’s peers. On the other hand, as a trial lawyer, it is your job to know what you are dealing with. Not only will this help you in jury selection, but also in how to present information to the jury once the trial is underway. That is, assuming you realize that at least some jurors may still log on.
“Beware of the Smiling Juror,” warns Melissa Gomez, a jury consultant blogging on The Legal Intelligencer website last week. Ms. Gomez points out, quite accurately, that trying to read jurors’ body language and other non-verbal cues is both “fruitless and tiring.” With regard to the smiling juror, she warns, we don’t know whether that person is grinning because he likes what we are saying, or because he can’t wait to stick it to us when jury deliberations begin.
Most disturbing about a trial lawyer trying to read jurors’ facial cues and body language is the potential it has to distract the lawyer from what’s most important: presenting one’s case as clearly, cleanly and fully as possible. Every time you look over to see if your jurors are nodding along with your argument, you run the risk of being thrown off course.
Rather than attempt to read facial cues, focus on getting to know your jurors before the action begins. Get the jury list in advance of trial. By reviewing the list, you can learn about the types of people you might find on your jury. You may observe, for example, that many of those on the list are retired farmers, or nurses, or teachers, as opposed to businesspeople. Read the questionnaires that many jurisdictions have jurors complete. Research your jurors online. All this knowledge will help you ultimately tailor your argument to your listeners. Be vigilant about using voir dire to “unpick” the potential jurors most likely to side against your client.
Jury consultants can help at many stages of the process. Not only can they assist in suggesting the best way to present evidence to the jury, but they can also help select jurors that are likely to be most receptive to your arguments. Once trial begins, you should have enough confidence in your preparation that you shouldn’t be thrown off by a juror’s crossed arms or unexpectedly sheepish expression.
That said, don’t ignore your jurors’ non-verbal cues completely, especially when their demeanor changes dramatically from one day to the next. In November 2010, I blogged about a case in which the defense noticed a juror’s sudden change in demeanor. The defense went back and did further investigation into this juror’s background. In doing so, the defense found she had much to hide and asked the judge to remove her from the trial. The judge did so, and, in the end, the defense won the case.
Still, proper research is a better bet overall than trying to figure out what that juror’s smile, smirk or grimace signifies. It may just mean that he had a lousy breakfast.
On Monday, December 13, The Honorable Paul W. Grimm and yours truly will be presenting at the Bar Association of Baltimore City. We will be leading a discussion on the "New Federal Rules of Civil Procedure." Judge Grimm is Chief Magistrate Judge for the United States District Court for the District of Maryland. The location: The Brown Room of the Baltimore Bar Library, 100 N. Calvert Street, Baltimore, Maryland. Time: 4 pm until 5:15 pm. For more information, e-mail the Baltimore Bar Association at email@example.com.
Whatever your opinion about controversial filmmaker Michael Moore, he did recently offer some unwittingly sage advice to trial lawyers everywhere: He reminded us why it's important to conduct juror research early and often. Last week, a judge in New York dismissed a juror in the final throes of a case against banking giant Citigroup, after it was discovered that the juror was listed in the credits of Moore’s 2009 documentary that berated Wall Street and the banking industry. Citigroup ultimately prevailed in the case but the question of the biased juror made for an awkward, if unavoidable, situation.
When reached by Bloomberg News for comment about the judge’s decision to remove the juror, Moore, who said the juror didn’t work on the film, added, “You’ve got to feel sorry for Citigroup. They’re paying all this money to their attorneys and they didn’t even bother to Google her ‘til last night.”
The filmmaker may have been too severe. Solid information about jurors' biases is generally hard to come by, even when online research can be done during voir dire. What’s more, it is not known how this juror answered questions during voir dire or how cleverly she hid any biases up to that late stage in the trial.
It’s also important to point out that Citigroup’s lawyers were wisely attentive to this juror’s behavior during the trial and that they smartly took action immediately upon sensing a subtle change in her demeanor. As the judge commented after deciding to dismiss her, she answered questions in a manner that struck him as deceptive. She may well have withheld important facts and biases just to be seated on the jury.
That said, the incident emphasizes the cardinal rule of persuasion: know your audience as well as you can. We have Michael Moore to thank for the reminder.
How much sarcasm is too much in court? That very question was brought before an appellate court in Connecticut earlier this month when a public defender challenged his client’s guilty verdict, claiming the defendant’s right to a fair trial was compromised by the prosecutor’s aggressively sarcastic style.
According to the Connecticut Law Tribune, the prosecutor used the phrase “lo and behold,” several times and prefaced questions with a heavily emphasized, “You claim….” He also announced, “Good luck for you,” when the defendant testified that he obtained his gun when it happened to fall out of a relative’s pocket.
Though the appellate court upheld the guilty verdict – ruling that sarcasm does not constitute an appeal – a good trial lawyer should proceed with caution when playing the sarcasm hand.
Though there is some case law indicating that a ruling could be overturned if the sarcasm is deemed excessive, your goal shouldn’t be to come too close to that line. You can’t know for sure how the jury will react to your sarcastic tone. Certainly, you don’t want to appear to abuse or bully the witness and lose the jury’s respect. Your goal, particularly in a cross-examination, is to control the witness and if appropriate, to discredit the witness’s testimony, but to do it in a more restrained way than by resorting to sarcasm.
A skillful trial lawyer ought to be able to lead a witness into revealing his foolishness or mendacity without directly mocking him. When you have an adverse witness that has made an improbable claim on direct, for instance, conduct the cross in such a way that you allow him to emphasize the very improbability of the testimony. Repeating back the witness’s hard-to-believe statements can help the jury focus on just how unlikely they really are: “So, the gun just fell out of your relative’s pocket, right on the floor of the living room, correct? And you just picked it up and put it in your pocket, correct?” can ultimately sway the jury in your favor, whether or not you add a sarcastic side note – and you won’t risk having yourself branded a bully.
With more and more courthouses providing easy Internet access to attorneys, it seems you now have no excuse for poor voir dire preparation. According to the New Jersey Law Journal, an appeals court in New Jersey has ruled that it’s perfectly fine for trial lawyers to bring their laptop computers to court and Google prospective jurors at the counsel table. The ruling overturned a trial judge’s decision to force a plaintiff’s counsel to turn off his laptop computer because it gave him an advantage over his less tech-prepared adversary.
In overturning the trial judge’s ruling, the court pointed out that just because plaintiff’s counsel “had the foresight to bring his laptop computer to court and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of fairness.” The wireless Internet service, the court reasoned, was available to both sides equally.
There are at least two points here to keep in mind. First, take your voir dire seriously. Make use of every opportunity you have to get to know the candidates in your jury pool. This entails asking good questions that uncover their leanings and predispositions, reading facial and body cues, and, especially now, researching each potential juror – using all the information that is available to you in the public domain. You never know what you’ll find. With so many of us broadcasting our political leanings, tastes and habits online, trial lawyers can’t afford to ignore the Internet. Second, stay current in all the technology that’s out there. And be prepared to use it to your advantage. Today it’s Google with Wi-Fi access. Tomorrow, who knows?
But always remember that innovative voir dire techniques must be consistent with ethics and professional responsibility. Moreover, your voir dire must also conform to the practices within the jurisdiction and court in which you are trying the case.
It's no secret that the general public has a low opinion of lawyers. That means you – as a trial lawyer – are at a disadvantage with a jury before you’ve even uttered your first syllable in court. Nevertheless, there are steps you can take to diminish jurors’ skepticism about you and your case.
For one thing, refrain from calling the party you represent your “client.” Always use the person’s name. Every time you say “my client,” you remind the jury of your role as a “hired gun.” Obviously the jury knows this is your role, but it certainly doesn’t need emphasizing.
Also, in court as in life, honesty is the best policy. Don’t try to conceal negative facts about your case: confront them head-on. Not only does that enhance your personal credibility, but it also minimizes the impact of those facts. If the jury doesn’t hear about the weaknesses of your case until the other side takes to the floor, your integrity will be questioned and the bad news that’s delivered by the other side will come across as even more incriminating.
Speak to the jury expressly in terms of the truth of the circumstances, and your hope for a fair and just resolution of the dispute. By talking about truth and fairness as shared values, you reinforce in the jury’s mind your own adherence to these values. As part of the same theme, avoid asserting facts that the jury is unlikely to believe. It’s better to omit details that will only undermine your credibility than confront a jury with information that just doesn’t sound plausible, regardless of its authenticity.
Finally, be nice. This may be easier said than done. The New York Times observed, “One reason companies lose lawsuits is that they are represented by obnoxious counsel.” So smile. Be civil. Never talk down to your audience. Use voir dire to establish rapport with jurors. And never appear hostile to the opposing side.
Thanks to the oft-cited and oft-interpreted “Kill all the lawyers” line from Shakespeare’s Henry VI Part 2, many have debated Shakespeare’s feelings about attorneys. And scholars have long deliberated Shakespeare’s familiarity with the laws of his day. Yet no one doubts the Bard’s grasp of human nature.
In a clever article entitled, “What Can Lawyers Learn from ‘Othello,’” Texas attorney Michael Maslanka focuses on this particular Shakespearean tragedy to offer trial lawyers what he calls a “cautionary tale” about the pitfalls of human behavior that often play out among attorneys, clients and witnesses. Among other pointers, Maslanka warns lawyers not to accept everything a client says as true and to beware of agendas that might not be what they seem. Wise advise.
The article also underscores the villain Iago’s skill in playing to his audience, suggesting that lawyers can learn from his tactics: “Iago-like lawyers probe others for core ethical beliefs,” writes Maslanka, “and then adroitly flip the switches to trigger action in conformity therewith.”
Indeed, when you argue a case, your audience – whether judge, jury or arbitrator -- ultimately decides whether your client wins or loses. It is a mistake to think of your audience as a passive receptacle for your line of reasoning. Rather, think of your audience as an active participant who may interpret things differently from the way you intend. For example, you may think of “home” as a quiet cottage with a white picket fence. Your audience may think of “home” as a cramped city apartment. Don’t let yourself forget that we all come to the courtroom with different perspectives and it is your audience’s perspective that ultimately counts.
Indicting a public official is always a cause for attention. The prosecutor believes he or she is duty bound to proceed based on the facts uncovered. The defense exclaims that the case is tissue thin. The fourth estate rallies to the cry of cause célèbre. The public reads, listens and waits for the wheels of the judiciary to grind forward as they inexorable do.
In Maryland the State Prosecutor indicted the Mayor of Baltimore in a twelve-count indictment. The charges included perjury for failing to report gifts from a developer on ethics forms, theft for stealing gift cards worth more than five hundred dollars, and misconduct in office. Last week the judge assigned to the case dismissed five of the counts, leaving seven remaining, those relating to the theft. The basis of the dismissal boils down to a doctrine known as legislative immunity, or the “speech and debate” principle, which holds that an elected official’s votes, or bills she may have introduced in a legislative body, cannot be used as evidence against her. (This principle exists to prevent politically motivated prosecutions against elected officials.) In this matter, the prosecutor had presented the grand jury with such evidence in building the perjury case against Mayor Dixon, thus compelling the judge to question the integrity of the indictment and dismiss five of the counts.
The question of whether the State Prosecutor should appeal is an important one. An appeal would cause delay of the trial. Delay often works to the advantage of the accused. On the other hand, the prosecutor may be thinking of his role as public servant and seek to reverse the court's decision on theory of legislative immunity to clear the way for other cases in the future. What should the prosecutor do? Analyze the law and consider the likelihood of reversal. If he believes he has a shot, he should go for it. His responsibility may be to advocate for reversal so that he can proceed with all of the charges and, when justified, prosecute others who would hide behind the immunity. The defense, of course, must continue to battle. In doing so, they will be not only fighting of their client, but also for the need for such immunity to protect the independence of the legislative branch of government.
As an alternative to an appeal, the prosecutor could take a narrower view of the matter and attempt to re-indict Mayor Dixon for perjury and misconduct in office, this time excluding the evidence the judge deemed improper. Indeed, the judge’s opinion suggested the prosecution might take this step, and the Sun advocated for it in a recent editorial.
The trial is scheduled for September unless the special prosecutor appeals. I look forward to following the proceedings. I am familiar with the lawyers and the judge in the case and expect it to be well tried.
If you can believe the Wall Street Journal, lawyers are dressing up these days. Christina Brinkley reports here that many attorneys are scorning business casual in favor of more formal attire. The argument for this? “[H]igh powered attorneys should look like high powered attorneys” and anything else is “sending the wrong signal.” The law firm cited is unusual in its adherence to a strict dress code, but I agree that lawyers should acknowledge the expectations of their various audiences, especially those inside the courtroom, and dress accordingly.
At trial, this becomes extremely important. During the first moments of an opening statement, your audience of judge, jury members and arbitrators will be forming key impressions of you and your case. I generally recommend conservative attire that is compatible with your personal style and the audience’s expectations. A couple of opinions on attire and appearance:
* Avoid bow ties. Keep to traditional suiting if at all possible.
* Choose jewelry carefully. Sparkles are distracting — including those in cuff links. And, expensive jewelry can create a gulf that interferes with having the jury “identify” with the lawyer.
* Arrange your materials in an organized and controlled manner. If you are constantly groping for exhibits, you might lose credibility.
* Use the space in the courtroom. Consult the rules and judge’s staff before trial on where and how freely you can move.
There is room to disagree about what to wear and how to look at trial, but there is no disagreement on the importance of appearing natural and comfortable. Whether or not you leave the bow tie at home, your appearance engenders confidence through projecting a powerful and controlled image.
Technology can work wonders in the courtroom. The combination of high-tech imagery and low-tech witness examination often creates vivid, lasting memories in the minds of jurors. As time goes on, the technology becomes more sophisticated, but its purpose remains the same: explaining your case and persuading the audience in a memorable fashion that trumps your opponent's story.
By way of example, see this piece on Law.com by David Horrigan: “Technology Puts a Dream House on Trial.” It relates how, in a dispute between DreamWorks CEO Jeffrey Katzenberg and Goodyear over heating hoses installed in his vacation home, both teams used video presentations. The plaintiff’s included a computer-aided tour of Katzenberg’s home and animated CAD drawings while the defense used a straightforward presentation of blueprints and related drawings through TrialDirector 5.0 software.
As technology has evolved, there are now more ways than ever of showing exhibits in a courtroom. In my view, though, it is not the sophistication that counts, but how well the imagery persuades. Lengthy presentations, no matter how elaborate and well done, may bore the audience. Perhaps the most effective way to work with video at trial is to weave imagery into witness examinations, so that the oral testimony is reinforced by the visual, the abstract becomes concrete, and everyone in the room can see what the witness is reviewing as he responds to questions. Particularly during long direct or cross examinations, use of audiovisual aids helps keep the jury engaged in your story.
The Washington Post recently wrote an interesting piece on trial attorneys using elaborate videos for jurors to gain some understanding of a victim’s life and the pain of the family. These videos offer pictures, performances and even emotional background music to represent the victim. The Supreme Court via Chief Justice Rehnquist allows videos to offer a “brief glimpse” into the lives of victims. While these videos may stretch the bounds of that glimpse, the Supreme Court refused to hear any appeals to cases using these types of exhibits.
The excellent article by Jerry Markon suggests that trial attorneys should consider this a “green light” for use of these videos in the future. While many of us take pride in making decisions based on logic, we all appreciate that most decisions are based in part on emotions. As you strive for credible, memorable, and clear testimony, video exhibits can help pull the “emotional heartstrings”.
Before attempting to show a video it is imperative to advise the opposing side of your intention to use the video and show it to them. This should be done with enough time before trial to obtain a court ruling. In most instances the applicable discovery rules will govern this situation. Additionally, when using videos it may be helpful to obtain testimony from a family member first and then introduce the video exhibit, which will corroborate key points. Once such a video has been viewed, you can ask the witness to review and explain the video, which will serve as a memory anchor for the jury.
Litigators should use caution, however, as histrionics are never appropriate. Avoid overly emotional appeals designed to manipulate the jurors. Such presentations may end up hurting your credibility.
There is something to be said about focusing a witness examination around one indelible image. For the prosecution in the trial of Alaskan Senator Ted Stevens, the image of choice was a $2,695 vibrating Shiatsu massage lounger from Brookstone.
Reporter Dana Milbank narrates the prosecution’s cross-examination of Sen. Stevens in today’s Washington Post. The senator faces seven felony counts charging that he deliberately concealed on Senate ethics forms $250,000 in goods and services he received for his home in Alaska. He contends that the massage chair, among other items, was borrowed from friends or given despite the fact he declined the offers.
To convince a jury of the merits of a case, attorneys want to provide memorable testimony that will overwhelm competing arguments. The prosecutor in the Stevens trial seems to know this lesson well. Brenda Morris used the massage chair as a prime example of the alleged goodies received by Sen. Stevens, describing the chair in her opening statement as the "expensive massage chair from Brookstone -- you know, that gadget store you see in all the malls."
The chair came up again in multiple witness examinations, most importantly in the cross of the defendant himself. Here is the penultimate moment cited by Milbank:
Prosecutor Brenda Morris, toward the end of her cross-examination of the senator yesterday, settled in for a long discussion about the chair, which Alaska restaurateur Bob Persons bought for Stevens as a gift seven years ago -- but which Stevens never reported on his Senate disclosure forms.
The Washington Post had an interesting piece yesterday on the art of evading questions. The story contrasts Alaska Governor Sarah Palin’s blunt refusal to answer questions during the VP debate last week with Obama, Biden and McCain’s more subtle techniques of evasion.
For advocates caught between a rock and a rhetorical hard place, the article might offer some helpful tips. But judges asking questions in court won’t be fooled the way “Joe six-pack” might. If you have no good answer for a question from the Bench, it is probably wiser to err on the side of honesty, frankly admitting that you cannot respond fully to the question at this time but will submit a supplemental memorandum if the court desires, or state "I am not sure but under the circumstances the answer could only be..." When pushed against the wall you might state, "while I am not certain, my guess would be..."
Best solution, be prepared and know your subject matter. Whatever you do, don't bluff. An evasive answer, even as artful a dodge as Obama’s answer cited in the Post article, will hurt your ethos with a sophisticated listener.
For those who plan to tune in to the presidential debate this Friday, here is a cheat sheet on some common logical fallacies. One can only hope these two fine candidates will steer clear of such foibles, but I, for one, am not holding my breath.
The “slippery slope” argument falsely assumes that once you take a moderate first step in a particular direction, a catastrophic chain of events will follow. In many cases, a better metaphor would be a staircase with many safe steps along the way.
For instance, one candidate told a radio show that choosing a vice president based on certain non-negotiable positions would send him down a “slippery slope.”
On the other hand, sometimes the slippery slope does exist and can be a legitimate basis for an argument. When you hear language like “opening the floodgates” and “slippery slope” your job is to make certain that the argument is true.
A question like, “Isn’t America tired of Democrats wanting to raise taxes?” is a compound question because it actually involves two or more issues that cannot be accurately answered with a single response. It assumes that Democrats have always wanted to raise taxes and also that you may have a position on the issue. The best response to a compound question is to point out that the questioner has made a false or unwarranted assumption.
The officer defendants in the Sean Bell case were acquitted Friday, prompting Mark Fass of the New York Law Journal to write an article about the strategic wisdom of waiving the right to a jury trial in certain cases. You can't argue with success; the defense counsel in the Bell case clearly did fine work and were correct to avoid pinning their clients' hopes to jurors who may well have been swayed by their emotions to convict. New York Supreme Court Justice Arthur J. Cooperman found the defendants not guilty on all counts.
As Fass points out, opting for a bench trial is a tried-and-true strategy for defense attorneys representing law enforcement clients in jurisdictions where citizens may have negative opinions of the police.
Fass quotes one defense attorney's explanation of the rationale:
"With a jury, there's always a chance that emotion can enter the process," said Mark Bederow of Thompson Hine, who recently represented R. Lindley Devecchio, the former FBI agent who opted for a bench trial in his successful defense of four murder charges.
"With a judge, the expectation is that [the decision] will be purely on the facts and the law, and that extra-judicial influences will not play a role. And I think you saw that specifically in the Bell case."
But defense attorneys should be careful not to presume that judges are immune from "extra-judicial influences."