ability of most trial attorneys and, thus, becomes a vice rather than a virtue.
If I were to look for a third link in your trifecta, I would probably adopt the concept of CREDIBILITY. Credibility of the cause, credibility of the attorney, credibility of the client, and credibility of the approach to the trial are essential. Obviously, that concept can overlap with other concepts, such as passion, etc., but I think it is deserving of being incorporated into your trifecta. With hard work and passion,‘ creativity’ will either naturally occur or simply become unnecessary because someone else already thought of the idea, and your hard work allowed you to make good use of it.
I suspect Bill Wheatley’ s concerns about the importance of creativity reflect the view of many accomplished defense attorneys. Plaintiffs’ lawyers face the burden of proof, are temperamentally inclined to be a bit more passionate and risktaking, and creatively challenge the edges of the common law when necessary. For obvious reasons, defense attorneys tend to stick with the facts …
Credibility of the cause, credibility of the attorney, credibility of the client, and credibility of the approach to the trial is essential.
How To Be More Creative It isn’ t necessary to jettison your ability to“ think like a lawyer.” I only ask that you attempt to recapture your lost ability to understand legal questions through the eyes of ordinary folks. People just like you used to be … The best jury trial lawyers I know are legally and psychologically ambidextrous. They deftly tiptoe between the mandates of positive law [ the court’ s instructions ] and the jurors’ sense of sidewalk justice [ common sense ]. When this occurs, a legal symphony is afoot.
Drop The Legal Jargon Think about all the synonyms the word contract has. How about“ bargain, deal, understanding, or agreement?” This is what your case is about. Lawyers talk about a“ breach of contract.” Jurors understand a deal or someone not keeping their word. Instead of discussing damages, consider talking about lost hopes and stolen dreams.
Tell A Story When presenting your case, it’ s kind of like the country-western song,“ Somebody done somebody wrong …” It is the jury’ s responsibility to right that wrong. Show them why and how. Don’ t just give the jurors a timeline on a big, laminated board. Focus on the key disagreements and explain why your client is being honest. You needn’ t call the opponents liars, but you can discuss human nature, choices, and profit motives. Leave ultimate conclusions about an opponent’ s honesty to the jury. They know what to do. Judging is their job, not yours. Winning the motive battle puts you squarely in the driver’ s seat.
Keep It Simple, Stupid It is your job to make every case you try simple. I don’ t care if it isn’ t. Harry Truman, the only President to serve in the 20th century never to attend college, was fond of saying,“ I make complex things simple, and refuse to make simple things complex.” Easy to say, tough to do.
It is difficult to“ be” creative or“ be” passionate. Maybe it just isn’ t your nature. I appreciate that. It takes a few trials to get the basic mechanics down. Once you are comfortable with the procedure, it then becomes easier to shift your focus to the more sophisticated aspects of advocacy. In the beginning, you are consumed with not embarrassing yourself by doing something stupid. You go to advocacy seminars and are told“ Don’ t do this,” and“ Don’ t do that.” It seems difficult to do anything right, particularly when you are focused on avoiding everything you shouldn’ t do.
Academics and judges are really good at telling you what not to do. They are O. K. when it comes to telling you what to do; however, they often don’ t do well when it comes to actually showing or demonstrating. Why? Think about it …
Start At The End Begin your case at the end, meaning the jury instructions. Good lawyers build their cases teleologically, meaning everything is constructed with the final instructions in mind. What are the phrases that capture the key legal concepts? Build your case theme around those phrases and ideas. Do this, and the judge’ s instructions will be a chorus for your closing. You are not a thief when foreshadowing the exact words of the judge’ s instructions, although your opponent might think so.
Consider requesting written instructions. [ ORCP 59B ]. If you file a written request, then the judge must instruct the jury in writing. Prepare a separate set of instructions for each juror. This is discretionary with the court, but if you don’ t prepare them and ask for them, you know you won’ t get them.
Use The Verdict Form It is the framework around which to construct your closing. Enlarge it( with an overhead projector) and then during your closing, write the answers you are arguing for in the proper spaces on the special verdict form. You’ re not telling the jurors what to think; you’ re a guide, you’ re teaching. When arguing money, fill in the amount you claim the proof supports. Psychologists call your prayer an“ anchoring number.” Jurors can’ t agree with you if you don’ t explain to them what you think is fair, i. e., why the defendant should pay large sums of money, and thus, why your client deserves large sums of money.
Closings Should Explain Why, Not What The closing for average lawyers is a verbal rock fight wherein they continuously repeat, with increasing volume, their three to five best facts. This is of no assistance to the jury.( Closings should explain why, not what, and then argue the reasonable inferences.) Here is where all the witnesses’ biases and interests are discussed
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