Tuesday, November 29, 2022

How to Discuss the Law in Closing Argument – The George Zimmerman Trial


Mark O’Mara

During closing argument, you're going to discuss the law. During instructions are the source of the law for the jury. Inevitably the trial lawyers will discuss the law regarding the burden of proof. The trial of George Zimmerman for the murder of Trayvon Martin provides an excellent example of how counsel can explain the law regarding the burden of proof to the jury. 


Watch defense counsel Mark O’Mara discuss the burden of proof beyond a reasonable doubt. 

Despite the best efforts of pattern jury instruction committees, jury instructions may be difficult for jurors to understand and therefore apply the case apply to the case before them. To aid the jurors, counsel can explain the law in understandable terms. Also, trial lawyers can use visuals to explain the law.

For example, this visual could be used to explain the concept of transferred intent.

Friday, November 25, 2022




The Appellate Prosecutor: A Practical and Inspirational Guide to Appellate Advocacy is the best book on appellate advocacy, and it comes in a small package. Yes, it’s my opinion, but I’m biased because I had the honor to engage the authors and edit their work. 

However, it’s not just my opinion that it’s the best. It is the opinion of others who know what it takes to be an appellate advocate. Judge Charles Moylan, thirty-year veteran of the appellate bench and renowned lecturer put it this way: "This work in my judgment will find an indispensable place on the desk, or at the bedside on the night before argument, of every successful appellate prosecutor."

Michael D. Schwartz, Senior Deputy District Attorney, Writs, Appeals and Training Supervisor, Ventura, CA said, "I have been a prosecutor for 25 years, and have spent about half of that time handling writs and appeals. I thought I knew what I was doing, but in reading your book I found myself thinking many times, ‘Oh! So that's how I'm supposed to do it!’ Thanks again for publishing a great book!"

Annina Mitchell, Utah Solicitor General, said of the book, "I have attended many appellate practice seminars. Few of those presentations were as helpful to the appellate litigator as those in this book, whose topics range from the obvious (persuasive brief writing and oral argument techniques) to the practical (books and online research resources, complete with website addresses) to the sublime (standards of review) . . .. I will surely use it in my own civil appellate work, and I heartily recommend it to all lawyers interested in improving theirs."


Professor Tessa L. Dysart, Assistant Director of Legal Writing and Clinical Professor of Law, University of Arizona, College of Law provides the answers. She wrote, “… I think that most appellate attorneys, even defense-oriented appellate attorneys, will find something of value in the book.” "Something Reinforced, Something New: A Review of The Appellate Prosecutor," The Journal of Appellate Practice and Process (Vol. 22 No. 2 Summer 2022). 

In her article on the book, Professor Tessa's goes on to observe:

"I have been teaching appellate advocacy for over a decade. Yet, when I pick up a book or article on the topic, I often find that I still learn something new in the reading. And, even if I learn nothing new, per se, in the reading, I find important concepts re-solidified, new ways to approach important topics, things I disagree with, and a reminder that practices and customs do vary by jurisdiction. The Appellate Prosecutor both taught me something new and reinforced familiar, but important, concepts. It is a book I recommend to any appellate attorney but especially one that represents the government in criminal appellate matters.

"The Appellate Prosecutor is an anthology of essays on appellate practice, with a special emphasis on attorneys who represent the state on appeal in criminal law matters. Although this emphasis is pronounced in certain chapters, I think that most appellate attorneys, even defense-oriented appellate attorneys, will find something of value in the book. The chapters run the gamut of appellate practice, from protecting the record at trial to brief writing to oral advocacy to even how judges conference cases. The individual chapters were written by state appellate judges and state appellate prosecutors, and the volume was edited by Ronald H. Clark, a longtime state court prosecutor and Distinguished Practitioner in Residence at Seattle University School of Law. . ."

Professor Dysart singled out her favorite chapters as follows: “The three chapters that I learned the most from were the chapter on persuasion and the chapters on conferencing cases. The persuasion chapter, written by Judge Robert J. Humphreys of the Virginia Court of Appeals, started with a look at Aristotle’s methods of persuasion—ethos, logos, and pathos—and how those methods can be used to persuade in appellate advocacy. And while this is something I discuss in my classes, Judge Humphreys then pivoted into a topic that I had not considered before, at least when it comes to judges—the ‘thinking process.’ As he explained it, there are generally two modes of thinking—the systematic mode and the heuristic mode. While the systematic mode is “careful, deliberate and analytical,” the heuristic mode is a ‘stream-of-consciousness’ approach that skims information rather than carefully analyzing it. I suspect that most attorneys believe that judges only ever use the systematic mode. But, as Judge Humphreys noted, some-times judges read briefs at the end of a long day when they might not be able to focus as much. He then offered tips for brief writing that can catch the attention of the heuristically thinking judge.”

Professor Dysart’s full article can be read here. 

Although the The Appellate Prosecutor is only 219 pages, it is comprehensive in its coverage. Here is the table of contents:

· Persuasion, Planning and Analysis for Appellate Advocacy – The building blocks of persuasion and how to use them in appellate advocacy.

· Writing the Persuasive Brief – How to effectively craft the three major sections of the brief.

· The Key to Good Legal Writing.

· A Sample Appellate Brief Template.

· Appellate Strategies – How to: find procedural and other bars; uncover flaws in Appellant’s brief; determine the real issue; enhance your credibility with the court and more.

· Research Resources: An Appellate Lawyer’s Tools of the Trade – Internet sites, prosecutor association information banks and written resources for appellate prosecutors.

· Standards of Review: The First Line of Defense.

· Protecting the Record for Appeal: Advice to the Trial Prosecutor.

· Professional Responsibility on Appeal – How to respond to ethical dilemmas that confront appellate prosecutors.

· Prosecutor Appeals - Eight considerations that may influence your decision to appeal.

· Successful Appellate Oral Advocacy.

· Appellate Court Conferencing of Cases – How appellate courts

conference and how that can affect your advocacy.

· Answering the Difficult Questions from the Bench.

· Inspirational Words for the Appellate Advocate.

                          Learn More Here

I hope that the book serves you well in your practice. Click here to buy the book.

Wednesday, November 23, 2022

Formulating Your Trial Theme for Closing Argument


The Trial Theme in the prosecution of defendants Skilling and Lay in the Enron case

What is your trial theme?  This is part of a series of articles regarding how to construct and deliver closing argument. The prior post examined how to begin your closing with an attention step. Here, we shift to the body of the argument.

Common topics for the body of closing argument are as follows:
integrating the case theory and theme
issues in dispute 
a discussion of the law new 
applying that law to the facts 
refuting opponent’s arguments discussing case weaknesses 
discussing missing evidence and or witnesses 
witness credibility 
expert witness testimony 
circumstantial evidence 

The case theory is a combination of your legal theory and your factual narrative. Your factual narrative should be about a human being, appeal to the jurors’ values, and concern the deprivation of a human need. Your case theme is the hub of your case around which everything else revolves. The theme should be short and via crystallization of your case theory.

The Enron trial serves as a good illustration of the integration of case theory and theme. The case involved two people at the head of Enron corporation Ken Lay and Jeff Skilling.  Lay once was one of Houston's most respected power brokers and philanthropists, Enron's ex-chairman and long-time CEO commanded his employees' loyalty far longer than other executives. Now, in the Enron case, however, he's defending himself against charges of incompetence. Much of the blame for Enron's problems has centered on the Jeff Skilling- the man who took the company away from pipelines and into new frontiers in power trading and marketing. His abrupt resignation after six months in the CEO job started speculation that quickly turned into scandal.

Kathryn Ruemmler 

Enron Task Force prosecutor Kathryn Ruemmler’s Theme was: "There's nothing wrong with getting rich.  But what you can't do is you can't get rich by deceiving. You can't get rich by cheating." Ruemmler, sometimes pacing before the jury during her four-hour closing argument, laid out the case theory, saying that the victims of the deceits of Lay and Skilling were shareholders — real people "deprived of the truth."

In rebuttal argument, prosecutor Sean Berkowitz reiterated the theme: “They lied to their investors.” He said, “Senior management had been lying to the public for years. . .  Enron could not handle the truth.”

Thursday, November 17, 2022

How to Begin Your Closing Argument?


In this and following posts, we’ll examine how to craft and deliver a winning closing argument. We start with how to structure the closing and then here concentrate on how to begin the closing argument.

In a nutshell, your closing argument should have three parts: 

(1) an attention step to get the jurors attention and make them want to hear more; 

(2) the body—where you make your argument; and 

(3) the conclusion where you wave the flag—arousing the jurors and motivating them to want to do what you ask. 

Yes, a beginning, a middle and an end. 

THE ATTENTION STEP: Skip the “thank yous” to the judge, opposing counsel and the jurors unless it’s been a long trial, and get right to it. 

Here are some effective attention steps. First, Aristotle's thought about how to approach public speaking is to tell them what you're going to tell them. Tell them. Then tell them what you told them. Therefore, you can begin with a road map of what you are going to tell them because that will catch the jurors’ interests. 

A second approach is to begin your closing argument with the case theme that you first introduced in your opening statement because this symmetry brings power to your closing and underlines your case theme. you could simply state it: “As I told you in opening statement this case is about greed.”

A third attention step is a quote to pique the jurors’ interest. 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. It is not only that this child was damaged through negligence and carelessness, avoidable though it was. It is not that they had chance after chance that went begging time and time again to save him and they did not.”

If your closing follows opposing counsel’s, such as when defense counsel’s closing follows plaintiff’s, you may grab on to remarks made by opposing counsel and use them as a transition into your closing. With this approach, you can turn opposing counsel’s closing remarks to your advantage. For example, you can draw the jury's attention to what opposing counsel did not discuss an argument and then offer a favorable reason to your client why opposing counsel neglected the subject.

Join me in future posts where we can explore how to construct a successful closing argument.

Monday, November 7, 2022

Beware of Danger Zones When Addressing a Jury: My Cousin Vinny

Beware the danger zones when addressing a jury. Why should counsel avoid violating the Rules of Professional Conduct when addressing the jury? The consequences of a violation include: a mistrial; reversal of a favorable verdict; loss of your license to practice law; a judge’s reprimand; and damage to your reputation. 

This post identifies common danger zones for trial lawyers when addressing a jury. Here is a prosecutor delivering an opening statement:

“The State will call Mr. Ethridge, who has tendered a plea of guilty to attempted strong-arm robbery.  And I’ll say this from the bottom of my heart, that there is one soul, who was at one time unclean and is now clean. . .  That’s good for the soul, and he is looking forward to this.  As much as someone tragically is, he’s at a point where he wants to be clean.  That’s really what it’s all about.  And there will be evidence in this case that Mr. Ethridge is wanting to let it all out.   This is his day to let all these things fly.  He’s beyond that now.  Hallelujah.”  

The South Carolina Appellate Court in Gilchrist v. State, 565 S.E.2d 281, 285 (S.C. 2002) explained that the solicitor (prosecutor): “Cannot vouch for the credibility of a witness by expressing or implying his personal opinion concerning a witness’ truthfulness. . .” Rule of Professional  Conduct 3.4 states that counsel shall not state a personal opinion as to . . .the credibility of a witness.”

Here is another prosecutor in closing argument: “Whenever a jury acquits a person who has been proven guilty they don’t follow their oaths.  And if you let the defendant, Tracy Nelson, walk out of this courtroom on this evidence I would suggest you have not lived up to your oaths.” The Florida Court of Appeals held: “. . .ultimate deductions from the evidence are for the jury to draw.  Counsel may argue what deductions in his judgment the evidence would reasonably support, but under no circumstances is he warranted in offering dogmatic statements as to what the evidence proves.” People v. Nelson, 737 N.E.2d 632, 639, 193 Ill. 2d 216 (2000).

Regarding dogmatic statements to the jury, watch this scene from My Cousin Vinny:

Another danger zone is never say “I”. RPC 3.4 (d)(3) states: “A lawyer shall not in appearing as a lawyer before a tribunal on behalf of a client shall not: assert a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused but the lawyer may argue, upon analysis of the evidence, for any position or conclusion with respect to the matters stated herein.

A mother cat decided to take her kittens out for a walk. The kittens had never been outside the house. They encountered a Rottweiler that was growling and drooling at them. The mother cat went up face to face with the dog—and barked. The Rottweiler turned and ran away in fear. The  mother cat took her kittens back under the porch, gathered them around her and said, “Now I need to talk to you about the importance of a second language. 

The point is that you need not state a personal opinion; use a second language. Never say, “I”; say, “The evidence shows.” 

Wednesday, November 2, 2022

Be a Great Communicator in Trial: The Godfather


What makes for a great communicator in trial (or elsewhere when the person is trying to convince an audience)? To be a great communicator as a trial lawyer you should concentrate on three things:
1. Your WORDS

The prior posts focused on the words and the visuals that a persuasive trial lawyer uses in trial. This post explores how to deliver the words and visuals.

What makes for great communicator when it comes to delivering the message to a jury. Is it logic?  Every trial lawyer has had the experience of thinking that they had a perfectly logical argument only to find that the receiver of the message was not convinced by the logic. Is it a good appearance that makes for a great communicator? It helps but there are some unattractive trial lawyers out there who are quite successful. 

The number one quality that will make you a great communicator is SINCERITY and the ability to PROJECT THAT SINCERITY. An article entitled Body Language and Persuasion:

“If on the other hand, you do not know what you are doing, or you do not believe in it, or you are afraid of revealing what you feel, your body and voice will betray you, no matter how you attempt to manipulate them.”

When you project sincerity, you show the jury that you have examined your case from all angles and believe it to be true. While you cannot ethically express an opinion about the justness of your cause or the credibility of a witness, there is no prohibition against being sincere and projecting it.

This post offers eight techniques for a winning delivery in trial, and being sincere and projecting that sincerity is the most important technique—it’s NUMBER 1.

NUMBER 2. BE YOURSELF. Jurors can detect a phony. It is fine and good to go to court and watch other talented trial lawyers and if what they do fits you, adopt the practice and if not, discard it as unsuitable to you. So, be yourself. Unless you are a jerk.

NUMBER 3. PROJECT EMOTION. Show your commitment and your sincerity. Let your voice and body language emote with the story—with the case.

NUMBER 4. GOLDEN SILENCE. Use silence to let an idea sink in. Use silence for highlighting and for emotion. If you have ever been told that you speak too fast, don’t worry because it is alright to speak fast. Speaking fast can be powerful. Speak fast then pause after you make a point. Let the point sink in. Also, a pregnant pause creates suspense.

NUMBER 5.  WHISPER. Want to get jurors to really listen to you?  Don’t yell at them. Whisper. Not a weak whisper. Rather WATCH THE GODFATHER DO IT. And lean in when you whisper.
NUMBER 6.  PACING. Slow it down when you hit the dramatic or emotional part of your story. The slower and quieter, the better. Slow down and whisper

NUMBER 7. NONVERBAL COMMUNICATION. Your courtroom attire and accessories are important. Dress appropriately for the courtroom. Do not wear anything distracting, such as gaudy jewelry. Make eye contact with each juror. People do believe in the proposition that there is something wrong with a person who does not look you in the eyes. If you can and the courtroom setting allows it, sit at counsel table facing the jurors so you can look right at them. If you feel uncomfortable looking a juror in the eyes, look at the juror’s eyebrows. With regards to hand gestures, they should tell the same story as your words. Gesture with open hands. Avoid pointing a finger at the jurors. Steeple with your fingers because it makes it look like you are thinking (although you may only be thinking about steepling).

NUMBER 8. PRACTICE. How do you get to Carnegie Hall? Practice—practice—practice. 

If you want to communicate with the jurors, don’t read. If you read, you lose eye contact. If you read, you lose emotion. If you read, you will not connect with the jurors. Don’t use notes. Yes, memorize and practice until you can deliver the message naturally without notes. But you may be thinking that you need your notes. You don’t. Write out your opening and closing. Then reduce them to idea notes in big print. Then, practice—practice—practice. 

How do you practice? In the old days, a trial lawyer would practice in front of a mirror.  You have a tablet or your phone and you can video yourself. Yes, it can be painful to watch yourself at first. But,  video is a great coach. Video doesn’t lie. What are you looking for? Voice modulation, hand gestures, everything.  

Wednesday, October 26, 2022

How to be a Great Communicator in Trial: Part 2 Your Visuals

What makes for a great communicator in trial (or elsewhere when the person is trying to convince an audience)? To be a great communicator you should concentrate on three things:
1. Your WORDS

The prior post (How to be a Great Communicator in Trial: Part 1 Your Words)  focused on the words that a persuasive trial lawyer uses. This post covers trial visuals and the next post will examine how to deliver the words and visuals.

When your opening statement tells a chronological story, a visual timeline can enable you to communicate the story in a dynamic way. Different types of timelines can be created. Above is a vertical timeline.

And this is a classic horizontal timeline:

With Timeline by Lexis Nexis, you can build a timeline by just filling in the dates, times, and a description of the event. (https://www.lexisnexis.com/pdf/CaseMap/TOTG/Using_TimeMap.pdf)

During the opening statement in the Derik Chauvin trial for the murder of George Floyd, the prosecutor used a timeline to tell the chronological story. Watch that portion of the opening, which begins at 6 and a half minutes into his opening statement.