This is a snippet from closing argument in a catastrophic brain injury case I tried with attorney Gordon Johnson.
The courtroom is wired for videoecording. But the microphones are not that great so you have to turn up the volume.
The video is here: http://youtu.be/xoMJYITY5Vc
We have been in trial for a month. Many times he's told me to back off. We have been Going. At. It.
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.
Nick
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.
The only health condition the defense won't try to spin - is death.
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.
— Edgar Allan PoeWords have no power to impress the mind without the exquisite horror of their reality.
— Jane AustenThere is no charm equal to tenderness of heart.
— Langston HughesHold fast to dreams For if dreams die Life is a broken-winged bird That cannot fly.
— Stephen HawkingIntelligence is the ability to adapt to change.
— Oliver Wendell Holmes, Sr.Truth, when not sought after, rarely comes to light.
— Virginia WoolfIf you do not tell the truth about yourself you cannot tell it about other people.
— La RochefoucauldTrue eloquence consists in saying all that is required and only what is required.
— Desmond TutuIf you are neutral in situations of injustice, you have chosen the side of the oppressor.
— Abraham LincolnBe sure you put your feet in the right place, then stand firm.
— Dr. SuessBe who you are and say what you feel because those who mind don’t matter and those who matter don’t mind.
— Margaret ThatcherIf you just set out to be liked, you would be prepared to compromise on anything, wouldn't you, at any time? And you would achieve nothing!
— Katharine HepburnWhy slap them on the wrist with a feather when you can belt them over the head with a sledgehammer.
— AristotleThe soul never thinks without a picture.
— Woody AllenIf you're not failing every now and again, it's a sign you're not doing anything very innovative.
— Oprah WinfreyThe thing you fear most has no power. Your fear of it is what has the power. Facing the truth really will set you free.
— AesopNo act of kindness, no matter how small, is ever wasted.
— Muhammad AliFloat like a butterfly, sting like a bee.
— William ShakespeareTo thine own self be true, and it must follow, as the night the day, thou canst not then be false to any man.
— Anne FrankHow wonderful it is that nobody need wait a single moment before starting to improve the world.
— Dalai LamaPeople take different roads seeking fulfillment and happiness. Just because they're not on your road doesn't mean they've gotten lost.
— Apache proverbIt is better to have less thunder in the mouth and more lightning in the hand.
— PythagorasA thought is an idea in transit.
— Martha GrahamThere is a vitality, a life-force, an energy, a quickening that is translated through you into action and because there is only one of you in all of time, this expression is unique.
— ConfuciusOf what use is eloquence?
He who engages in fluency of words to control men
often finds himself hated by them.
— Oliver Wendell Holmes Jr.No generalization is wholly true, not even this one.
— Old Japanese proverbFall seven times, stand up eight.
— William ShakespeareMine honor is my life;
both grow in one;
Take honor from me,
and my life is done.
— Annie DillardHow we spend our days is, of course, how we spend our lives.
— Desmond TutuIt is very easy to break down something. You can take a stone and throw it through that window; that is easy. Try fixing it, and that takes longer. It takes longer to help someone who has been broken. That’s the work you’re doing.
— Robert SchullerI had rather attempt something great and fail, than to attempt nothing at all and succeed.
— Martin Luther King Jr.The time is always right to do what is right.
— Bill CosbyI don’t know the key to success, but the key to failure is trying to please everybody.
— Richard J. FosterLearn to laugh; it is a discipline to be mastered. Let go of the everlasting burden of always needing to sound profound.
— Helen KellerBelieve, when you are most unhappy, that there is something for you to do in the world. So long as you can sweeten another’s pain, life is not in vain.
— Albert EinsteinImagination is more important than knowledge. Knowledge is limited. Imagination encircles the world.
— Elie WieselThe opposite of love is not hate, it’s indifference. The opposite of art is not ugliness, it’s indifference. And the opposite of life is not death, it’s indifference.
— Albert EinsteinIt is high time that the ideal of success should be replaced by the ideal of service.
— Alexander SolzhenitsynIt is not the level of prosperity that makes for happiness but the kinship of heart to heart and the way we look at the world.
— Simone WeilTo be rooted is perhaps the most important and least recognized need of the human soul.
— Jimmy CarterWe must adjust to changing times and still hold to unchanging principles.
— Oliver Wendell Holmes JrLife is painting a picture, not doing a sum.
— Flannery O'ConnorThe truth does not change according to our ability to stomach it emotionally.
— Mahatma GhandiAn eye for an eye makes the whole world blind.
— Howard ThurmanHe who keeps his eye on results cannot give himself wholeheartedly to his task, however simple or complex that task may be.
— Benjamin TuckerThe moment that justice must be paid for by the victim of injustice it becomes itself injustice.
— Maya AngelouYou may shoot me with your words, You may cut me with your eyes, You may kill me with your hatefullness, But still, like air, I'll rise.
— Judge Learned HandWords are chameleons, which reflect the color of their environment.
— Erica JongAnd the trouble is, if you don't risk anything, you risk even more.
— LudacrisI'd rather die on my feet than live on my knees.
— 7th Amendment of the U.S. ConstitutionThe right of trial by jury shall be preserved.
— Gertrude SteinEverybody gets so much information all day long that they lose their common sense.
— Albert EinsteinIt is harder to crack a prejudice than an atom.
— Proverbs 24:10If thou faint in the day of adversity thy strength is small. ~ Proverbs 24:10
— Thomas á KempisRemember that lost time does not return.
— BuddhaTo straighten the crooked you must first do a harder thing – straighten yourself.
