under the heading of motives. Jurors will remember the proof. It is your job to explain what the evidence means, not what it was.
McElhaney On Creativity My friend, Jim McElhaney, who writes the monthly“ Trial Tips” column in the American Bar Association Journal, advocates gastronomical jurisprudence. Your facts should provoke a visceral response that tells the story of an injustice. Arguments appeal to the intellect. Lead with a punch. Lead with facts.(“ Balance Persuasion,” American Bar Association Journal, March 2002.)
Tension is the product of conflict. If the listener doesn’ t care what might happen next, then the dialogue isn’ t working. Start with a crisis. Speak in the first person rather than a chronological third-person narrative. Use literary techniques like foreshadowing in your opening statement:“ This is a case about a woman’ s eyes.” Explain what happened, why it happened, and who’ s responsible.
Jim says,“ Write to the ear and speak to the eye.” When people read what I write, I want them to hear me talking, and when I talk, I want them to see what I’ m saying.(“ Empty Words,” American Bar Association Journal, December 2001)
3. Passion
Most trials are mechanical pre-sentations long on“ stack-a-facts.” Passion may abound in life; however, I don’ t see much in the courtroom. Maybe it is there, but it is certainly well hidden, and when spotted, it is easily mistaken for virtuosity and overt appeals to sympathy.
What I often see from lawyers in trial are well-organized presentations that could be faxed to the jury with little loss of enthusiasm, energy, or passion. Representing a client’ s interests isn’ t just another day at the office. What we do is really important, at least it is to our clients …
Don’ t talk about a“ breach of a duty,” or some other legal incantation. Talk about“ choice.” This is what $ 350-an-hour jury consultants will tell you, whether it is the defendant’ s negligence, the plaintiff’ s comparative fault or any other affirmative defense. Turn fault into choice. With choice comes responsibility, and with responsibility comes culpability. Get indignant when explaining why your opponent made the wrong choices. Motive is the key.
Being passionate doesn’ t mean you need to raise your voice. In fact, it is more effective to lower it. Silence can be deafening! For women litigators who are worried about striking the difficult balance between being assertive, but not too aggressive, it is gender congruent to lower your voice, while concurrently reducing the space between you and the jury. This fosters a powerful intimacy.
Let’ s not forget about the money, and yes, I know the legal term is“ damages.” This is my leading criticism of most trial advocacy teachers, colleges, and institutes. Neither the faculty nor the students appear comfortable when talking money. Think about the character Jerry Maguire, from the movie by the same name, when he said,“ Show me the money!” After all, that’ s why we are here!
You ask,“ What is there to get passionate about in a simple negligence action, or a garden variety contract case?” Try putting yourself in your client’ s shoes. What really hurts? Start there. The case you end up trying says as much about you as the core facts you work with. Search until you find the human story within the facts, then emphasize the moral imperative. Where is the wrong that demands correction?
Lawyers want to talk, talk, and talk about liability. More“ stack-a-fact.” Everyone seems so much more comfortable when NOT talking about pain and suffering, and the money owed because of it. Why shouldn’ t you be sharing with the jury why every dime you have asked for is reasonable? Ask yourself,“ Why are we here?”
The answer for the jury is“ To right a wrong and deliver justice. Ladies and Gentlemen of the jury, in our legal system, justice can only be expressed in dollars.” One of the rules inexperienced lawyers have difficulty learning is not to express their personal opinions. The reason isn’ t a rule of evidence. It’ s one of ethics. See Oregon Rule of Professional Conduct 3.4( e), which states in part that“[ a ] lawyer shall not... state a personal opinion as to justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.” A simple way to address this is to drop the“ I, me and lie” from your closings. When your arguments contain tempered passion, you don’ t need to state your personal opinions. It will be obvious what you think! Why give your opponents the opportunity to state that the basis for their objection is a lack of ethics on your part, and then have the judge agree, and all this happens in front of the jury. How embarrassing! Not knowing your evidence is one thing, acting unethically is quite another …
There are clear economic incentives to being passionate. When you fight for your clients and lose [ as you will about half of the time ], your clients won’ t blame you. They will blame the judge or jury! This means they will write you a check that doesn’ t bounce, will hire you in the future, and will send all their friends and relatives to you. The greatest compliment is when jurors from one of your past trials want to hire you. Why all the new and repeat business? It’ s because you are a fighter. I promise you, if you lose without passion, the clients will blame you. It really doesn’ t matter whether this is fair, because we can agree that losing without passion is simply bad business. All lawyers lose their share of cases. What I am talking about here is how you lose. Clients ask, nay, demand, that you lose mightily, with enthusiasm and great heart.
You needn’ t act maudlin, shrill, or wear the constitution on your sleeve. Nor am I talking about sympathy or pandering to the jurors’ emotions. What I am talking about is representing your clients with a commitment and earnestness that shows you care. Everyone can do that. After all, if you don’ t care, why should the jurors?
PARTING THOUGHTS
Take A Speech Class
Read some books on public speaking. Yes, I know you were on the debate team in high school, took a speech class as an undergrad, and did moot court in law school. That was for credits and a
84 The Trial Lawyer