[blindlaw] Moving Around in front of Jury during closingargument?

[Ross Doerr]

This article may be of help overall with reference to trial work. I copied 
it off of a list, may even have been this one, several months ago. I look at 
it before hearings now and then, just to keep an eye open for things that I 
may be doing wrong.
Hope this helps out a little bit.
Ross A. Doerr - Esquire
Marty Sanchez's big employment discrimination case was getting close to 
trial when he suddenly was bombarded with a cluster of troublesome motions 
by that new defense boutique firm, Strickland & Michaelman.



So Tuesday evening, Marty was over at the office, where Angus and I were 
helping him prepare for these last-minute threats.



"Those guys must have been lying in wait for months so they could hit me all 
of a sudden with these 13 different motions," said Marty.



"That's the way 'Tricky' Strickland and Joyce Michaelman approached every 
case when they were at Windstrom & Crusher," I said. "They're even worse now 
that they've got their own firm."



"It looks to me like their motion for a partial summary judgment is the most 
dangerous one in the bunch," said Angus. "It seems harmless, but I think it 
would severely limit how you could prove your client's damages."



"I'm loaded for bear on that one," said Marty. "Let's start with it."



I played Judge Standwell while Angus gave a powerful-sounding argument in 
favor of the defendant's motion.



The videotape was running when Marty stood up-fire in his eyes-and said, 
"Your honor, I have 13 compelling reasons why this specious motion should be 
summarily denied."



"Sorry to interrupt so soon," said Angus, "but do you really want to start 
your argument like that?"

"Absolutely!" said Marty. "Give them some of their own medicine. I've got 13 
objections to every one of their 13 motions."



I reached for my pencil to multiply 13 by 13, but Angus had already done it 
in his head. "You've actually got 169 objections to these 13 motions?" he 
said.



Marty nodded. "It's poetic justice," he said.



"But why punish the judge with all those objections for what the defendant 
is doing?" I said.



Marty stayed in his role. "You're wrong, judge," he said. "You do not 
comprehend what is at issue with the defendant's dishonest and unethical 
motions. They present a serious threat to the basic scope and fairness of 
these proceedings, and my clients are entitled to be heard on them!"



Angus stood up. "Marty," he said. "Mellow out a little. It's Tuesday night, 
and the trial doesn't start for over a month. But actually I'm glad you said 
that here and not in Judge Standwell's courtroom.



"I'm giving a talk for the bar association's dinner this Friday, called 
Seven Ways to Make a Losing Argument. And you know what? In less than 30 
seconds you already made one losing argument and promised to make another."



"Oh, come on," said Marty. "What did I do to make a losing argument?"



"See if you can find it in this list," said Angus, handing it to Marty:



Argue with the judge

Bury your argument in clutter

Misstate the facts

Base your argument on obscure technicalities

Read your argument

Push a good point too far

Give in to sudden inspiration



"Argue with the judge?" said Marty.



"That's one," said Angus. "Jimmy was letting you know that you were taking 
out your anger on the judge with 13 objections to every motion, and you 
started

lecturing him on his lack of understanding the 'basic scope and fairness' of 
the proceedings. What's worse, you actually said, 'You're wrong, judge.' You 
didn't even call him 'your honor.'



"Remember: Never argue with the judge, argue to the judge."



"But what's the big deal?" said Marty. "I hear lawyers argue with the judge 
all the time."



"Do they win?" said Angus.



Marty thought for a minute, then said, "No, but at least they preserve their 
objections for the record."



"That and $2.49 will buy you a fast-food double cheeseburger," said Angus, 
"but it won't get the judge reversed on appeal.



"The most important reason for arguing to the judge instead of with the 
judge is that people like their own ideas. Telling the judge he's wrong 
amounts to a personal attack. On top of that, it pushes the judge into 
adopting your opponent's position out of self-defense."



"OK," said Marty. "What's the losing argument I promised to make?"



"You promised to bury whatever good points you had in a mountain of 
 clutter," I said. "It's theoretically possible you have 169 brilliant 
objections to make, but I doubt it."



"I admit I had to stretch to come up with even 15 or 20 decent arguments," 
said Marty. "But what's the harm in tossing a few losers on the judge's lap? 
It's part of the legal tradition. Law schools reward you for coming up with 
every remotely plausible rule you can think of."



Angus snorted. "A trial is not a law school examination," he said. "The 
problem with making losing arguments is that they become the lowest common 
denominator by which your whole presentation is evaluated. Judges don't 
trust lawyers who make dumb arguments."



Despite Marty's enthusiasm, I could see the discussion was taking its toll. 
So I stood up and said, "The court is declaring a coffee break. As it 
happens, I have a thermos of dark mountain roast and a box of warm blueberry 
scones."



Ten minutes later, Marty said, "Angus, would you mind commenting on the 
other five ways to make a losing argument before we go on? I'd rather know 
what to avoid ahead of time than find out the hard way."



Here are the notes I took:



Misstate the facts. Be scrupulously careful what you say-and how. Judges and 
juries are suspicious of comments and evaluations you make about the 
evidence, especially when they're not supported by the witnesses' testimony 
or documentary proof.



One of the difficulties of trying a case with no assistant or co-counsel is 
there is no one to catch any inadvertent misstatements you make before you 
hear about them in your opponent's final argument.



And tell the jurors in your final argument to rely on their recollection of 
what the witnesses said, and if their recollection differs from yours, to 
hold it against you and not your client.



Base your argument on obscure technicalities. Jeanne Fleming of Metricus, a 
jury research firm in Palo Alto, Calif., says, "When it comes to technical 
matters, most people have a limited attention span. The heart of the case is 
plot, motive and character.



"When the jury can't understand what you're presenting, they turn their 
attention to something they can understand, particularly motive and 
character. So don't make the centerpiece of your case something that doesn't 
relate to the interests or abilities of the fact-finders."



Read your argument. The problem is, no one writes the way they 
talk-especially lawyers. We can't resist decorating our compound and complex 
sentences with words that would send a crossword puzzle editor to the Oxford 
English Dictionary.



And even if you write with charming simplicity, you are not a professional 
reader. The results will be awkward and stilted.



So never work from a script. Instead, use an outline and speak 
extemporaneously-but not impromptu. So what if not everything you say is 
grammatically correct? It never is anyway.



Push a good point too far. Understatement is more powerful than 
overstatement. The harder you push-the more you tell people how to think-the 
more sales resistance you will get from anyone who is listening-especially 
the judge and jury, who know you're being paid to convince them.



The problem is, the words you should avoid are the ones that tug at you the 
hardest: adjectives and adverbs -those exciting, seductive words that keep 
sneaking into what you write and how you talk.



Stay away from them. They're poison. With adjectives and adverbs, you're 
telling people how to think. Simple verbs and nouns are the workhorses of 
good speaking and writing. They show, not tell.



Give in to sudden inspiration. You're in the middle of final argument when 
out of the blue comes a flash of brilliance. Suddenly you see a connection 
between events that had eluded you through years of working on the 
case-until now.



Like a sparkling gem lying on the floor, it calls you. You have found the 
winning climax for your argument.



The problem is, you only have time to see how to use this great idea-but not 
to test whether it might turn and bite you.



Take the case of the Illinois farmer who came across the river to shop in 
St. Louis, where he slipped and fell on the defendant's floor and seriously 
injured his back.



During final argument, the defense lawyer thought of a great way to 
"hometown" the plaintiff. He would appeal to the Missouri sense of resenting 
out-of-towners who were always trying to take advantage of the home folks. 
So he worked himself into a serious snit in his argument over "these 
Illinois farmers who come here trying to put their hands into some St. Louis 
businessman's pockets."



The late Jim Jeans, the St. Louis lawyer who was representing the Illinois 
farmer, didn't object. He waited until rebuttal, when he said, "We're not 
trying to put our hands into some local businessman's pocket-we're trying to 
put them into the pockets of the Royal Indemnity Insurance Co. that's 
defending this case."



The defense lawyer's sudden inspiration had opened the door to the 
admissibility of insurance.



James W. McElhaney is the Baker and Hostetler Distinguished Scholar in Trial 
Practice at Case Western Reserve University School of Law in Cleveland and

the Joseph C. Hutcheson Dis­tinguished Lecturer in Trial Advocacy at South 
Texas College of Law in Houston. He is a senior editor and columnist for 
Litigation,

the journal of the ABA Section of Litigation.