The Art of Advocacy

“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.

Classical Rhetoric

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 info@baltimorebar.org.

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.

Continue reading "The Ted Stevens Trial and the Lesson of the Memorable Image" »

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.

Slippery Slope
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.

Compound Question
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.

Continue reading "Fallacious Arguments" »

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."

Continue reading "Sean Bell Case Acquittal and Waiving the Right to a Jury Trial" »