Thursday, October 20, 2011


More of Vincent Bugliosi’s Best – The Unanswerable-Questions Strategy

As was previously discussed here, a winning closing argument is often the product of learning from hard working, skilled trial lawyers. In the book Outrage: The Five Reasons Why O. J. Simpson Got Away with Murder, Vincent Bugliosi, who successfully prosecuted Charles Manson (chronicled in his book Helter Skelter) and 20 other murder trials, not only describes his approach to preparing closing argument and strategies for closing but also provides illustrations of well crafted arguments. Although the focus of the Outrage is the O. J. Simpson criminal case, it is an informative book for trial lawyers, particularly prosecutors, who are hunting for convincing arguments and effective strategies.

An example of a winning closing argument line of attack is the unanswerable-questions strategy. To carry out this strategy, plaintiff’s counsel, in the initial closing, poses unanswerable questions to defense counsel, and then in rebuttal, plaintiff’s counsel either refutes defense counsel’s attempts to answer or comments on defense counsel’s failure to address the questions. The concept is that the questions will expose the defense as meritless, and, therefore, the questions must go to the heart of the defense. For example, the questions show that Simpson made contradictory statements about where he was at the time of the murders, and those discrepancies cannot be explained away.

The unanswerable-questions strategy puts the defense on the defensive. Defense counsel cannot rely on a canned closing that ignores the questions without running the risk of looking like the questions are unanswerable and that the defense is dodging them. Worse, the defense will hear about the failure to answer in rebuttal. Instead of plain argument, such as arguing that the fact that Simpson’s conflicting statements about his whereabouts at the time of the murders is proof that he was responsible, plaintiff’s counsel gives power and emphasis to the argument by posing unanswerable questions.

Bugliosi offers this illustration of the unanswerable-question strategy in his imaginary initial closing argument in the O.J. Simpson case: “For instance, Mr. Cochran, these folks on the jury and I want you to reconcile three contradictory statements. In your opening statement, you told the jury that Mr. Simpson was practicing his golf at the time of the murders. But, Mr. Simpson told the limo driver he was sleeping, and in his statement to the police, which we have all heard in this courtroom, when they asked him everything he had done that evening, all he said was that he was very busy packing and getting ready for his trip to Chicago. He said nothing about playing golf or sleeping. Again, we want you to reconcile these three contradictory statements, and we want you to do so confining yourself to the evidence that came from that witness stand at this trial. When I later address the jury, I’ll of course respond to what you have to say, or comment on the fact that you refused to answer the question.”

This is but one of the strategies and arguments offered in Bugliosi’s chapter on “Final Summation.” It is an argument and strategy that may be adopted and modified to fit another case. Perhaps yours. Outrage is available for $10 or less through Amazon.

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