He is one of the best defense lawyers I've tried a case against. Nick started as an associate with his law firm when I was in the 8th grade. But he's not old fashioned. He used powerpoint in opening and closing. All of his trial exhibits were projected just like ours - electronically via a 70" LCD screen.
Through the extensive pretrial process, I described him as that character from Terminator. You know, the bad cop. No matter how many times you blew holes into him, he kept reconstituting himself. Relentlessly coming at you.
Anyway, this is what he writes:
Karen, if you recall, right after your closing argument, I said, “Well done, Karen.” But “well done” does not do your final argument justice. Indeed, you gave one of the best closing arguments and rebuttals I have ever heard. And from talking to others who watched you that day, I know I am not alone in my assessment. It was truly inspired, and delivered in a measured, deliberate pace which added even more to the drama. I’m sure you noticed the jurors were visibly moved by your words and simple expressions of compassion for your client, and respect for the process. You made all of us in the courtroom – judge, jury and counsel proud to be a part of the system. You are a zealous and inspired advocate, and I admire you for that.
Later I showed this to Rick Friedman. We discussed the sometimes inverse relationship between doing a fantastic job in closing and the jury verdict result. As much as I appreciate Nick's kind words, I would rather have fumbled and bumbled if it would have meant a better result for my client.
Photo: Taken during cross exam by a court observer. I am on the floor demonstrating how hard it is to put on and walk in a rigid leg brace. Notice how happy and engaged the jurors are. An unamused Nick is on the far left.
One technique used against plaintiffs, is to paint them as negative whiners. The defense mocks the injured person by saying they are overly focusing on their injury and see the glass as half empty. The logic is - if the person had a better mindset - they would see the glass is half full and everything would be better.
If the glass is half full defense works as planned, the jurors will feel nothing but irritation towards the injured person. Because no one feels compassion for a person who only sees and wants the worst in every situation.
In this trial, a drunk driver hit a man and crushed various bones throughout his body. Defense doctors were hired to testify that his injuries were not really so bad. Bones do heal ...with the help of metal plates and screws okay sure - but they do heal, they said.
In closing, I collected all of the "minimizing" statements of these doctor experts. Used the above photo. And roasted them by co-opting and presenting "Defendant's Glass Half Full List."
• He can walk even if he has to stop (after a few blocks)
• He can write with his left hand (even though he wrote with his right before)
• He can ride and drive in a car (but is still scared of trucks)
• He can travel (though he avoids it and has to move around constantly)
• He can cook to a certain extent
• He has range of motion (though he had to give up being a professional spin instructor and can no longer climb mountains, run, or engage in professional dance)
• He is off of narcotics (but still has pain daily)
and so on.
Co-opt this defense. Show the jury that your client believes that the glass is half full - even though bad things have happened.
Photo: From a PPT slide used in seveal trials last year.
We are rewarded in school for using sentences so complex, that the reader or listener is virtually tortured by them. As grown up lawyers this means we tend to spout legalese to normal people. How as trial lawyers do we shrug off these intellectual habits. So we can tell a good story.
Look at these tips from C.S. Lewis (he of The Chronicles of Narnia fame). This is taken from a letter he wrote to a young Fan in 1956.
What really matters is:–
1. Always try to use the language so as to make quite clear what you mean and make sure your sentence couldn't mean anything else.
2. Always prefer the plain direct word to the long, vague one. Don't implement promises, but keep them.
3. Never use abstract nouns when concrete ones will do. If you mean "More people died" don't say "Mortality rose."
4. In writing. Don't use adjectives which merely tell us how you want us to feel about the thing you are describing. I mean, instead of telling us a thing was "terrible," describe it so that we'll be terrified. Don't say it was "delightful"; make us say "delightful" when we've read the description. You see, all those words (horrifying, wonderful, hideous, exquisite) are only like saying to your readers, "Please will you do my job for me."
5. Don't use words too big for the subject. Don't say "infinitely" when you mean "very"; otherwise you'll have no word left when you want to talk about something really infinite.
This is pretty good advice.
Photo from C.S. Lewis Wikipedia
The lawyer is incensed.
Has come up to the podium to speak to me following a CLE presentation to the WSBA (state bar association).
I can't believe any defense lawyer would ever let you show a PPT like that in court! He is practically gasping for breath. So angry.
What's the big deal. What's so awful about showing as well as telling. Well, he doesn't like the "Where's the beef" slide. When popped little granny up on the screen, simply smiled at the jury. Then they mouthed the famous words for me.
How! Dare! You! He stomps off.
Actually wish more defense attorneys would emerge from the stone age. Give technology a try. It would make trial more interesting for everyone involved.
This is the closing argument from a basic motor vehicle collision case I tried on a week's notice. Imbedded the PPT slides into the transcript so you can get a feel for how it flowed.