[blindlaw] Moving Around in front of Jury duringclosingargument?
Nightingale, Noel
Noel.Nightingale at ed.gov
Wed Jan 16 10:14:48 CST 2008
This discussion reminds me of my NITA mock trial experience when I was
an associate at Heller ehrman.
We were in a courtroom in San Francisco. There was roughly a two feet
space between the counsel tables. I walked through that space to
examine my witness. When I returned to go back to my seat, my opponent
had in the intervening time placed his trial bag in that two feet space.
he had apparently hoped that I would trip over it because I would not be
expecting it and would be made to look silly in front of our real jury.
Fortunately, I was using my cane and found the bag before my feet did
and stepped over it. The jury never knew what happened I am sure.
Noel Nightingale
-----Original Message-----
From: blindlaw-bounces at nfbnet.org [mailto:blindlaw-bounces at nfbnet.org]
On Behalf Of Rod Alcidonis
Sent: Monday, January 14, 2008 8:53 PM
To: NFBnet Blind Law Mailing List
Subject: Re: [blindlaw] Moving Around in front of Jury
duringclosingargument?
Thanks, Ronza, Parnell and Ray for the additional thoughts -- they are
very helpful to me.
Then, I guess it boils down to knowing the courtroom as best as possible
so one can move around confidently and not become disoriented after five
minutes of arguments...
Thanks...
Rod Alcidonis
Juris Doctor Candidate, 2009.
Roger Williams University School of Law
10 Metacom Ave., Box: 9003
Bristol, RI 02809
Cell: 718-704-4651
Home: 401-824-8685
Visit my Law School Blog at:
http://blogs.rwu.edu/law/ralcidonis
----- Original Message -----
From: <AZNOR99 at aol.com>
To: <blindlaw at nfbnet.org>
Sent: Monday, January 14, 2008 10:19 PM
Subject: Re: [blindlaw] Moving Around in front of Jury
duringclosingargument?
> Hi Rod,
>
> I tend to do the same things as Parnell. I like moving around because
> it helps me release some energy and maybe walk off a little
> nervousness. I also like to do it because it keeps the jury's eyes on
> me. If I'm mobile, they
> tend to pay more attention. Closing arguments should flow. You'll
want
> them to
> seem natural, like a conversation. I like to choose a catch phrase
> they can take away with them. For example, when I prosecuted a
> certain case, the
> catch phrase was "coincidence, I don't think so." Then, as I went
> through the
> evidence and testimony that came out of the trial, I'd insert that
> statement when I had a particularly compelling piece of evidence. It
> also gave me a chance to collect my thoughts, because eventually,
> that statement became sort of automatic.
>
> I choose wehther or not to use notes depending on the nature of the
> closing argument. For a criminal case with a lot of evidence, I might
> Braille out some key points I want to highlight. For a deportation
> hearing, I almost never do. A deportation hearing has no jury, and I
> need to make sure the judge sees my client in the most human and
> vulnerable light I can portray him.
> For
> me, notes get in the way of that. Plus, by that time, I'm so
> familiar with my client's life that I know the details in my sleep.
> In a divorce, I'll probably use notes more. I'll need exact figures
> like income and assets, and I want to make sure I don't get them
> wrong.
>
> I suppose my point is this: different sorts of litigation will require
> different strategies. You'll have to figure out what makes you the
> most comfortable and what seems natural to you. And in the meantime,
> it's OK to be nervous and anxious. Most good lawyers are always
> nervous going into a high-stakes court appearance.
>
> Hope this helps.
>
> Ronza
>
>
>
> In a message dated 1/14/2008 9:06:09 P.M. Central Standard Time,
> RWayne1 at nyc.rr.com writes:
>
> Rod:
> We must remember that we are all lawyers first: each with our own
> strengths and weaknesses; each with our own stile; and each with our
> own ways of doing things. For us, blindness is one, but only one, of
> the characteristics that affects how we practice our trade. We learn
> from our colleagues, both sighted and blind, and we make our way.
> Ray
> PS: This exchange has been terrific; it is just what this listserv
> is all about.
>
> ----- Original Message -----
> From: "Rod Alcidonis" <roddj12 at hotmail.com>
> To: "NFBnet Blind Law Mailing List" <blindlaw at nfbnet.org>
> Sent: Monday, January 14, 2008 10:40 AM
> Subject: Re: [blindlaw] Moving Around in front of Jury
> duringclosingargument?
>
>
> Thanks Ross for the article but I was more interested in blindness
> litigation techniques in order to litigate as competently as my
> sighted counterparts.
>
> Appreciate it though....
>
> Great article...
>
> Rod Alcidonis
> Juris Doctor Candidate, 2009.
> Roger Williams University School of Law 10 Metacom Ave., Box: 9003
> Bristol, RI 02809
> Cell: 718-704-4651
> Home: 401-824-8685
> Visit my Law School Blog at:
> http://blogs.rwu.edu/law/ralcidonis
>
>
> ----- Original Message -----
> From: "Ross Doerr" <rumpole at roadrunner.com>
> To: "NFBnet Blind Law Mailing List" <blindlaw at nfbnet.org>
> Sent: Monday, January 14, 2008 1:30 PM
> Subject: Re: [blindlaw] Moving Around in front of Jury
> duringclosingargument?
>
>
> 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.
>
>
>
>
>
>
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>
>
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