Sunday, March 14, 2021

6 FAVORITE BOOKS ON TRIAL ADVOCACY

 

What follows is a list of six of my favorite books on trial advocacy. These books are not strangers to this blog that concentrates on the art and science of advocacy because I have blogged about most of them before. Below you will find the six favorites, including mine of course. With each book, you’ll find a link to where you could purchase it on Amazon as well as a gem from the earlier blogs and links to the full articles should you wish to visit them. 

#1—McElhaney’s Trial Notebook by James W. McElhaney

I treasure my autographed copy of McElhaney’s Trial Notebook. For decades McElhaney, the trial lawyer’s sage, wrote a lead articles for the ABA Journal. In his Trial Notebook, he covers everything from trial preparation through final argument. My favorite part of this favorite book is about Tactics in which you can find chapters on traps, how to deal with dirty tricks, ploys, stock phrases to employ as well as ones to avoid (in opening—“Nothing I say is evidence”), picking the right words, getting along with judges and keeping the client happy. 



I’m a firm believer that you can become your best by appropriating skills, strategies, concepts and words from skilled trial lawyers. As Picasso said, ““Good artists copy, great artists steal.” When you set out to craft your opening statement or closing argument, it is always helpful to refer to outstanding opening statements and closing arguments from the past, and In the Interest of Justice provides them.

Seidemann’s book contains excerpts from transcripts that meet Mr. Sideman’s two prerequisites. First, the selected cases are very high profile, including, among others, the trials of: O. J. Simpson; Marv Albert; Sean Puff Daddy Combs; Adolf Eichmann; Martha Stewart; John Scopes; Amadou Diallo; Timothy McVeigh. Second, the advocacy in these cases also satisfies the excellence test, with the lawyers demonstrating how to effectively use these devices: storytelling; analogies; phrasing; humor; pathos; logic; themes and so much more.


#3—Redeeming the Dream by David Boies and Theodore Olson

In their book Redeeming the Dream: Proposition 8 and the Struggle for Marriage Equality, David Boies and Theodore Olson take the reader inside the trial of their case challenging California’s Proposition 8. The book explores everything from preparing the complaint through closing argument and then the appeal to the United States Supreme Court. The book informs the reader about how highly skilled trial lawyers prepare for trial and perform in trial. It also covers the stress, fears and elation that trial lawyers and clients experience in a high-profile case. 

Redeeming the Dream returns again and again to the importance of themes. The development of a case themes and utilizing them in trial is at the core of excellent trial advocacy, For instance, when Ted Olson delivered the opening statement at trial, he led with the case theme: “This case is about marriage and equality. Plaintiffs are being denied the right to marry and equality under the law.”



A winning closing argument is often the product of learning from the best of the best trial lawyers, whether it is a how-to technique for delivery or some content for closing. A valuable resource, particularly for prosecutors, is Vincent Bugliosi’s book about the O. J. Simpson case, entitled Outrage: The Five Reasons Why O. J. Simpson Got Away with Murder. Bugliosi was hands down one of the best trial lawyers in America. 

Why is the book so valuable a guide for shaping a closing argument? First, it is packed with illustrative arguments that can with some modification be adopted by trial lawyers to their cases. When Bugliosi’s book editor asked him to write out the closing he would have given if he had prosecuted Simpson, Bugliosi declined, saying that it would be unrealistic because he normally put three to four hundred hours into prepping his own closings and for that case the closing would have filled a thousand pages of transcript. Instead, he wrote out some of his arguments, which are in bold type. Bugliosi’s “Final Summation” chapter is jammed with arguments and runs a hundred pages.

A second reason that his closing argument chapter is so valuable is because it is filled with gems – arguments that have been cut and polished to perfection. It is apparent that Bugliosi did what all good trial lawyers do; he took many of his arguments that he had crafted and delivered in his over a hundred trials (including 21 murder convictions) and adjusted them to fit the Simpson case. They are tried and true arguments.   


#6—Trial Advocacy: Planning, Analysis, and Strategy 4th Edition by Marilyn Berger, John Mitchell and Ronald Clark

Naturally, my book Trial Advocacy: Planning, Analysis, and Strategy is included in the list of my six favorite books. The book is divided into 14 chapters with each chapter covering a separate subject—persuasion, jury selection, opening statement, objections and so on. Each chapter presents a theoretical and practical approach to the particular skill, provides illustrations of practice, and offers practical pointers and checklists.

Accompanying the book are Assignments which take the law student or lawyer through the trial process in the context of criminal and civil cases, both of which arise from a tavern shooting after which the victim dies. 

The book has a companion website aspenadvocacybooks.com that holds demonstration movies. Case files, Actors Guide, and a Teacher’s Manual for mock trials and experiential exercises for either professional development CLEs or law school classes are also on the website. 



Friday, February 5, 2021

Court Embraces Remote Jury Selection

 It is doubtful that once the virus isolation ends that jury selection will ever be the same. King County Superior Court - Seattle, Washington - has been conducting jury selection via Zoom. The Court's website provides clear instructions for prospective jurors. Here is what those prospective jurors will find on the Court's website.







Friday, January 29, 2021

Remote Jury Selection

 

Rayvid's Jury Selection Platform Under Construction

Online jury selection looks like it is here to stay. During the pandemic, jury trials have been conducted remotely via Zoom. In King County, Washington, the Superior Court began with bench trials over Zoom and by the beginning of 2021 had conducted 100 of them. Then, the court started holding virtual civil jury trials. For all of these trials, the jurors remained at home and the other participants were either all or partially remote. Washington federal courts also began remote trials.

Not only is the court system evolving to accommodate conducting remote jury trials but also industry is adapting and evolving. A leader in this endeavor is Rayvid. Rayvid’s website explains:
 “Rayvid was founded at the start of the pandemic by former business and technical leaders from Amazon, Expedia and Google because we believe that the right technology can create a more equitable, efficient and accessible legal system.

“More people in the world now have access to the internet than to justice. This has been exacerbated by social distancing and quarantine but the underlying opportunity for justice to be more democratic will not disappear with a vaccine.”

Working with King County Superior Court, Rayvid has been constructing a jury selection platform. I watched an early mock jury selection using Rayvid. My Seattle University Law School students served as prospective jurors and veteran trial lawyers conducted voir dire with a King County Superior Court Judge presiding. All of the participants in the jury selection exercise were either at home or in an office. Rayvid has built its site specifically for jury selection. To view a video of the platform click here.

Remote jury selection has obvious benefits for both the court and the prospective jurors. Above all else it saves time and money. Jurors no longer need lose time at work to traipse downtown, park, and go to the courthouse where they sit for hours waiting to be sent out to a courtroom where they may never serve because they were excused during the jury selection process. It can involve more citizens in the jury selection process. As Rayvid points out, in Los Angeles county, 90 percent ignore their jury summons.

Thomas O’Toole, my co-author of Jury Selection Handbook: The Nuts and Bolts of Effective Jury Selection, along with Kevin Boully discussed remote trials in an article entitled “The Impact of Remote Trials on Jury Decision Making” (King Count Bar Bulletin January 2021). They wrote, “Zoom fundamentally changes the nature of the interaction between attorneys and jurors, making it much more difficult to build rapport.” Making a personal connection through a computer screen is just one aspect of remote jury selection that trial lawyers will need to adjust to. As the article points out, lawyers who are accustomed to moving around a courtroom and dramatically gesturing will have to consider how to adapt so as to be effective when they are viewed on a screen. While these and other differences from in-person jury selection are important for effective trial advocacy, the benefits of remote jury selection seem to outweigh them. 

When normalcy returns and trials return to the courtroom, it is hard to believe that the jury selection process will return to what it was. Remote jury selection saves both the court and prospective jurors time and money.

Thursday, November 19, 2020

Cross-Examining Evil

 


Randy Cox, a friend of mine and a trial lawyer in Missoula, MT, sent me an email telling the tale of a Chicago lawyer named Frank Oliver who defended a client against a federal prosecution that hinged on the testimony of one criminal informant.  The defense was simple – can the jury believe the testimony of a paid government informant who was a self-acknowledged murderer, arsonist and thief. Here is Randy’s email:  

 
This weekend, just for fun, I was reading some articles from one of Jim McElhaney's books and some old Litigation magazine articles.  There is an article in the Second Edition of The Litigation Manual from the ABA and it’s  about trying a criminal case where the government's proof rested on a man who, it was revealed on direct exam by the government, had committed or participated in four or five murders, roughly a half dozen arsons and bombings, 300 or 400 burglaries and about 200 armed robberies.  On cross, the defense lawyer (Oliver) was asking him about the oath and asked him about having sworn to God to speak truthfully.  
 
Q.           Now this same God unto whom you have sworn to tell the truth is the very God whose laws and commandments you have violated repeatedly over the course of your entire lifetime. Is that right?
Gov't:    Objection, Your Honor, to getting into his religious aspects here.
Q.           He is the one that swore to God.
The Court:   Overruled. He may answer.
  
Later, having established violation of "though shalt not kill" and asking about bearing false witness
 
Q.           So you violated that commandment of God, didn't you?
A.            Yes, sir.
Q.           When you took that oath before this jury, you intended that the jury should believe that the oath had the same seriousness to you that it would to a human being.  Isn't that right?  {WOW!!]
A.            Yes, sir.
 
Later,
 
Q.           Do you have any idea how many kinds of crimes you have committed?
A.            No, sir.
Q.           Do you know of any crime whatever that a man could commit that is beneath you morally?
A.            I don't know.
Q.           There isn't one is there?
A.            I don't know.
Q.           You cannot think of a crime that would be below you, can you?
A.            I imagine there is, but I don't know.
  
One of the questions, having obtained agreement that he should be believed and trusted with this new identity is because he has had a "spiritual awakening when you came to perceive the difference between good and evil."
 
Q.           So that whatever happened the day before, you were crawling evil, and then with this awakening, became a paragon of decency. Is that it?
A.            Yes.
Q.           That must have struck you as a remarkable day in your life, didn't it?
A.            Yes.
Q.           Did a light flood your soul?
A.            No.
Q.           You laugh?
A.            Yes.
Q.           You laugh because what I say is amusing, isn't it?
A.            Yes.
Q.           Because you cannot perceive of such a thing as a light of decency, isn't that right?
A.            I can see decency, but I don't know about no light striking me or anything like that.
Q.           You can see decency?
A.            That's correct.
Q.           Well, let's see.  You said that there might be some crimes that you would not commit, right?
A.            That's correct.
Q.           Rape is one of those crimes that you would not commit, is it?
A.            I don't ever remember doing it.
Q.           You don't remember whether you committed a rape or not?
A.            That's correct.
Q.           Is it something that just kind of could have happened and slipped out of your mind?
A.            I never raped nobody, if that makes you happy.
Q.           What causes you to suppose that anything you could possibly say would make me happy?
A.            I have no idea.
 
He then goes on to establish some particularly vile circumstances of rape of a woman who was a little "off," a little "crazy" and her husband was his friend and "Before your friend's body was lowered into his grave, you carnally knew and violated his widow." 
 
How much fun would that be??
 
In final argument he talked about the government’s witness as “evil” and said, among other things, “You cannot use evil to achieve anything good.  No, not even if you are a federal prosecutor.”


Sunday, November 15, 2020

Visual Litigation--Book Review



Professor Ron Carlson


Visual Litigation
Book Review

By Ronald L. Carlson
Fuller E. Callaway Professor of Law Emeritus
University of Georgia


Ronald Clark and his coauthors Patrick Muscat and Thomas O’Toole have delivered a gem in the book Visual Litigation:  Visual Communication Strategies and Today’s Technology.  The text is dedicated to supplying a working knowledge of modern technology for today’s litigators.  The suggestions for creation and display of electronic visuals are valuable for trial attorneys, as are the ideas for animations, video depositions, and use of videos during mediation.  

The book is designed for attorneys as well as law students.  It provides both with knowledge on how to effectively display visuals during direct examination.  Among other techniques, the book touches on day-in-the-life videos.  It also wisely counsels trial lawyers to prepare their witnesses for the use of exhibits which the witness will display while on the witness stand.  This prudent admonition is supplied: “Never ask a witness to identify and work with an exhibit at trial that you have not done the same with prior to trial.”  Notable examples, from the O.J. Simpson murder trial to the Paul Manafort bank fraud case, are used to illustrate salient points.

Along with direct examination, there are profound suggestions for cross-examiners.  The various forms of attacks on witnesses are showcased, including prior conviction impeachment, demonstrating the bias of the witness, and contradicting the witness’s testimony with relevant visual evidence.

The most popular form of impeachment involves the cross-examiner confronting a witness with his own prior statement when that statement contradicts the direct testimony of the witness.  Historically this was accomplished by handing a paper to the witness, and having the witness read (or with the examiner reading to the witness) the inconsistent portion.  The paper might consist of a statement the witness signed earlier, pages from a typed deposition, or a business record authored by the witness.  Nothing is more damaging to the witness in the eyes of the trier of fact than demonstrating that the person has told his story in multiple conflicting ways.  In today’s world the cross-examiner can accomplish the impeachment by showing a video clip of the earlier conflicting testimony.

This strategy might be coupled with a request for a “falsus in uno, falsus in omnibus” jury instruction.  That instruction tells the jurors that they may reject entirely the testimony of a witness who testifies falsely on a material point.  Inconsistent statement impeachment contains the potential to expose the material point which destabilizes the entirety of a witness’s account.  The Clark text instructs on the method for displaying the prior statement to the jury, as well as the methodology for making visual the key elements contained in jury instructions.

The authors of the text are students of trial history.  They go back to the time of Abraham Lincoln and identify a famous impeachment of a witness in a murder case which was defended by Lincoln.  His use of visual evidence carried the day.  In connection with this historical illustration, the text observes: “Nothing can be more devastating to a witness’s credibility than to be caught in a lie or misleading statement with irrefutable visual evidence.”

Experts may also be effectively attacked by a cross-examination which is aided by a visual display.  Sometimes the approach of an expert is contradicted by leaders in his or her field of specialization.  To show that an opposing expert’s theories are at odds with established principles in the expert’s field, the lawyer will often resort to a text or treatise on the subject.  A medical doctor, for example, might testify on direct examination that a whiplash injury is rarely serious, usually clearing in two or three months with conservative therapy.  Suppose the opposing attorney has located a respected medical text which says whiplash is frequently disabling, often requiring treatment for years.  The attacking lawyer can challenge the expert with this information, using Federal Evidence Rule 803 (18).  The Clark text suggests the relevant pages of the medical treatise might be effectively projected on a screen or embraced in a chart.  The net result may be the jury disregarding the expert’s conclusions as outside the mainstream.  

Final arguments can tip the balance in a close case.  Here, visuals can be effective in explaining legal concepts, summarizing the evidence, or demonstrating damages.  All of these concepts require careful attention.  Exhibits and visuals make the presentation of these concepts doubly effective.  The Clark text advises: “Parade the exhibits before the jury.  Place the visual, such as a chart, diagram, or enlarged photograph, on an easel in front of the jurors.”  

Checklists are prized by lawyers.  They provide a thumbnail summary of key points.  Each chapter of Visual Litigation concludes with a checklist, from the overview chapter to and through the chapter on necessary hardware for effective display of visuals.  To their credit, authors Clark, Muscat and O’Toole have done the hard work of distilling the essentials of each chapter into an easy-to-review checklist.  This is typical of their work throughout, as they present readers with a comprehensive guide to visual advocacy.             


Thursday, October 22, 2020

How to Develop a Winning Closing Argument

 

By the time you reach closing, jurors will have likely pretty much have made up their minds. If you’ve done your work in jury selection, opening, directs and cross, they hopefully are leaning your way and are rooting for your client. By closing, the jurors know the facts and what the dispute is. Closing argument is not the time to rehash the facts

The important closings are not made in the courtroom, they are made in the jury room. You want to arm jurors who are with you so they can advocate for the verdict you want. The courtroom is a classroom and you want to provide the arguments that jurors can use. For those jurors who are still on the fence, you want to bring them over.

The structure of a winning argument is the same as that for a winning opening statement; it should have a beginning, middle and an end. 

We want to begin with something that will engage them, make them interested. We want an attention getter. Should you begin by thanking the jurors for their service? It depends. For a short trial, forget it and jump right into the attention-getter. For a long trial, say a couple weeks or more, yes, express sincere gratitude. 

Your attention-getter should remind them of your theme and that theme should ideally remind them of a moral imperative. You could start with a quotation. For example in Augustin Ballinas v. New York Health and Hospitals Corporation, plaintiff’s counsel argued:

"Allow me to borrow a statement made a long time ago by Edmond Burke, an Irish statesman and orator speaking in, of all places, the English Parliament. Burke said, 'Something has happened upon which it is difficult to speak and impossible to be silent.'

"Ladies and gentlemen of the jury, you have seen unfold in this courtroom event that would make Edmond Burke’s words as applicable today as they were over two hundred years ago."

You could start with the theme that you first introduced in your opening statement. This brings symmetry to your addresses to the jury. In the Novell vs. Microsoft, plaintiff’s counsel echoed the fair play theme he introduced in opening statement:
 
“When we began this case on October 17th, I told you this case was about fair play. Novell wanted nothing more than to compete on the merits of its products. Unfortunately, as you have seen, Mr. Gates and Microsoft had other plans.”

Regarding the content of summation, normally the body of your address should cover six subjects. First of all, you want to interweave your case theory and theme into closing. Summarize your story. Don’t cover the details. By the time the jurors receive your closing, you will have done your job of making sure they have a firm grasp of facts.

Second, define the issues. This can be done with an elements chart showing what needs to be prove. As either a prosecutor or plaintiff’s counsel, go through each element with the aid of the element chart and apply the law to facts for each element. Once you have done this, point out that there is only one issue in the case (or two at most).  In a civil case, you may utilize the verdict form or special interrogatories to narrow the issues.

Third, discuss the law. Here you explain and translate the law into understandable terms for the jury. Let’s take some common jury instructions. For example, in the O.J. Simpson murder case, the defense was that there was insufficient evidence—that the prosecution had not proven that Simpson was guilty beyond a reasonable doubt. Here’s prosecutor Vincent Bugliosi’s argument discussing the sufficiency of the evidence in the Simpson case:

Ladies and gentlemen of the jury, the evidence of Mr. Simpson’s guilt is so overwhelming in this case that you could throw 80 percent of it out the window and there still would be no question of his guilt. For instance, as we’ve previously discussed, we know that Simpson beat poor Nicole savagely, and she was in fear of her life at his hands. You recall she told officer Edwards, ‘He’s going to kill me, he’s going to kill me.’ I mean, who else would have had any reason to murder these two young people, who apparently were both very well liked and popular, and particularly in such a brutal, savage way? But let’s throw this evidence out the window. Let’s assume Mr. Simpson and Nicole got along well, just swimmingly, that he never laid a hand on her. 

When he was charged with these murders, if he were innocent, he would have been outraged, blazing mad, at being charged with murders he did not commit, and would desperately want to prove his innocence and find out who murdered the mother of his two children. Instead, he writes this suicide note that absolutely reeks with guilt. . . 

Here is another example from the O.J. Simpson case in which Bugliosi discusses circumstantial evidence in terms that jurors can understand when the defense had argued that circumstantial evidence was like a chain where if there is one weak link it is broken, there is insufficient evidence:  

Circumstantial evidence, to the contrary, is like a rope. And each fact is a strand of that rope. And as the prosecution piles one fact upon another we add strands and we add strength to that rope. If one strand breaks – and I’m not conceding for a moment that any strand has broken in this case – but if one strand does break, the rope is not broken. The strength of the rope is barely diminished. Why? Because there are so many other strands of almost steel-like strength that the rope is still more than strong enough to bind these two defendants to justice. That’s what circumstantial evidence is all about.
 
Fourth, you will discuss damages. Here, you apply the instruction or verdict form on damages to the facts.

Fifth, if you have a rebuttal argument, plan your rebuttal in advance. You want to finish strong so save something powerful for rebuttal. Listen carefully to opposing counsel argument and note what counsel said that will enable you quote it and then crush the argument. For example, a prosecutor can reserve an argument on reasonable doubt until rebuttal because defense counsel often miss-quote the law—saying it’s “any doubt as opposed to a “reasonable doubt.” Consequently, in rebuttal, the prosecutor can argue, “Defense counsel told you that the state must prove the defendant’s guilt beyond any doubt. Is that the law? You heard the judge’s instruction—it’s proof beyond a reasonable doubt. Let’s look as the instruction that explains what a reasonable doubt is.” 

Six, tell the jurors the verdict you are seeking and have some strong words for concluding your summation.

For more on Closing Argument consider Trial Advocacy: Planning, Analysis and Strategy.


Friday, October 16, 2020

Trial Nervousness

Addressing a jury in opening statement and closing argument are exercises in public speaking. Studies have shown that the number one thing people fear most is public speaking. The second on the list of things people is death. Jerry Seinfeld put it well when he said, “At a funeral more people would rather be in the coffin than delivering the eulogy

Comedian Bob Hope said, “If you’re not nervous before you perform, you’re probably dead.”

We can’t make nervousness go away, but we can convert it into good energy. What we think of as nervousness is trapped energy. We just need techniques for converting energy into good energy. Here are a couple techniques to accomplish that.

A significant cause of our nervousness is that we think the audience is evaluating us. The most important technique we can use is to focus on the truth—that is that the jurors really don’t care about you. It’s not about you. You aren’t important. What they are looking for is what you can give them—the content of your address.

When you think about yourself and how you are perceived by the audience, it interferes with your communication and delivery. You should be thinking not about yourself but about the jury. Concentrate on getting the content in your mind to the jurors’ minds. Period. You don’t count—the content of your address counts.

The second most important technique for alleviating nervousness is to prepare and practice. Prepare—prepare—prepare; have it down cold. Hope Solo, gold metal soccer goalkeeper, put it this way, “Every athlete acquires routines as a way to help control nerves.”