Critical Pretrial and Trial Advocacy Checklists

Checklists are critical to pretrial and trial work. To illustrate the importance of checklists, Dr. Atul Gawande tells the true story of an October 30, 1935 airplane flight competition that the U.S. Army Air Corps held at Wright Air Field in Dayton Ohio to determine which military-long range bomber to purchase. Boeing’s “flying fortress” was the likely winner. But, after the plane reached three hundred feet, it stalled, turned on its one wing and crashed, killing its pilot and another of its five crew members. The pilot had forgotten to release a new locking mechanism on the elevator and rudder controls. The plane was dubbed “too much airplane for one man to fly.”

Nevertheless, a few of the Boeing planes were purchased, and a group of test considered what to do. They decided that the solution was a simple pilot’s checklist. With the checklist in use, pilots flew the B-17 1.8 million miles without an accident. Dr. Gawande in his book The Checklist Manifesto: How to Get Things Right (p. 34) concludes, “Much of our work today has entered its own B-17 phase. Substantial parts of what software designers, financial managers, firefighters, police officers, lawyers, and most certainly clinicians do are now too complex for them to carry out reliably from memory alone. Multiple fields, in other words, have become too much airplane for one person to fly.”

Dr. Gawande who heads the World Health Organization’s Safe Surgery Saves Lives program recounts that after the World Health Organization introduced the use of checklists for surgeons, research of nearly 4000 patients showed the following: major complications fell 36 percent; deaths fell 45 percent; infections fell almost 50 percent. Rather than the expected 435 patients expected to develop complications, only 277 did. The checklist spared 150 patients from harm and they spared 27 of those 150 from death. (The Checklist Manifesto, p. 154)

Just as checklists are critical for pilots and doctors, they are necessary for trial lawyers as well. At the end of almost every chapter in both Pretrial Advocacy, 6th Edition and Trial Advocacy 5th Edition is a checklist of matters that are essential to effective pretrial and trial advocacy. The following is an example of a checklist that follows the Closing Argument chapter in Trial Advocacy

CLOSING ARGUMENT CHECKLIST

Preparation

 Preparation begins soon after entry into the case. Counsel should keep notes of ideas for closing.

 Prior to trial, write the closing argument, with final editing during trial. Reduce closing to outline notes.

 Rehearse closing argument. Just like opening statement, commit concluding remarks to memory so they will flow smoothly.

Content 

 Case theories should serve as guides for planning closing.

 Regarding the legal theories, jury instructions, among others, serve as the core around which to craft closing argument:

 Elements of the claim or defense,

 Burden of proof,

 Issues in dispute, and

 The other side’s case theory.

 In arguing the factual theory, counsel should use jury instructions that pertain to crucial facts, as well as a story embodying those facts.

 The case theme should be incorporated into the closing.

 Closing should meet the other side’s case theory and attacks.

 Juror beliefs and expectations that could be detrimental to the case should be identified, met, or distinguished from your case.

Length

 Length of closing should be suitable to the complexity of the case, and should not run overly long.

Aristotelian Appeals 

 Closing should make all three appeals: logical, emotional, and ethical.

 Persuasive language should include:

 Words with connotations, and

 Rhetorical devices, such as postponement, concession, anti¬thesis, metaphors, similes, analogies, and rhetorical questions.

Structure 

 The closing should begin by seizing the jury’s attention.

 The body of the closing should be well organized, emphasizing the strengths of the case before dealing with case weaknesses or the other side’s attack. 

 The closing should conclude by referring to the theme and reasons for the requested verdict, thus motivating the jury to make the right decision.

 Rebuttal should refute the other side’s arguments and finish strong.

Bench Trial 

Counsel should:

 Be prepared to answer the judge’s questions during closing.

 Not spend an inordinate amount of time explaining the basic law in the case. 

 Assist the court in making findings of fact and conclusions of law.

 Make logical and ethical arguments. Do not seek to appeal the judge’s emotions, except as telling of the facts evokes emotion.

 Be concise and to the point.

 Be candid, accurately stating the facts and law, and conceding what should be conceded.

Delivery 

Counsel should:

 Project sincerity;

 Avoid distracting behavior, such as pacing back and forth;

 Maintain eye contact with jurors or judge;

 Deliver the closing with a minimal outline;

 Position her body to hold the fact finder’s attention; and

 Make purposeful movements.

Counsel should use trial visuals effectively:

 Ensure use is permissible,

 Make visuals persuasive,

 Position equipment and visuals appropriately, and

 Have a backup plan if equipment malfunctions.

Ethical Boundaries

 Counsel should not state a personal opinion.

 Counsel should not venture outside the record.

 Counsel should not introduce irrelevant matter.

 Counsel should not invoke the golden rule.

New Book Launch - Addressing the Jury: Opening Statement and Closing Argument

 

Just launched a new book Addressing the Jury: Opening Statement and Closing Argument. Addressing the Jury offers an in-depth explanation of how to craft a winning opening statement and summation and how to persuasively deliver them to a jury. The paperback is $9.29 and the ebook is $6.99.

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.
 

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.

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.” 

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.

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.”

 

GREAT TRIAL LAWYERS STEAL

-->

“Lesser artists borrow; great artists steal.” This is a statement attributed to Pablo Picasso. The same proposition holds true for great trial lawyers. Lesser trial attorneys borrow; great trial lawyers steal. The greats study what other trial lawyers have done, they remix it and transform it into their own work of art. This is particularly true of closing argument.

Vincent Bugliosi

-->

Three artists are featured here. First, Vincent Bugliosi, who prosecuted Charles Manson and was hands down one of America’s greatest trial lawyers, having successfully prosecuted 105 out of 106 felony jury trials (including 21 murder convictions). Vincent Bugliosi has been the subject of several articles here on summation, including:  The Winning Closing Argument: How to Conclude; Successful Closing Argument Strategies; and The Winning ClosingArgument: Best of Bugliosi.

Francis Wellman

-->

The second trial lawyer is Francis L. Wellman, an Assistant District Attorney and trial lawyer in New York who became famous for his skills as a trial advocate in the late 1800s and as the author of The Art of Cross-Examination, which is still in print today.

George R. (Bob) Dekle, Sr.

-->

The third is George R. (Bob) Dekle, Sr. who served as an Assistant State Attorney in Florida's Third Judicial Circuit from 1975 through 2005, during which time he prosecuted serial killer Ted Bundy resulting in a conviction of Bundy and the death penalty. Dekle is the author of several books, including Prairie Defender: The Murder Trials of Abraham Lincoln and Cross-Examination Handbook: Persuasion Strategies and Techniques (I am Bob’s co-author along with William Bailey).

Bob Dekle’s new book proves once again that Picasso’s statement that “great artists steal” is a verity. Dekle’s new book is Six Capsules: The Gilded Age Murder of Helen Potts, Kent State University Press (2019). Six Capsules tells the story of Wellman’s prosecution of Carlyle Harris for the murder of Helen Potts. Dekle’s book revealed, to me at least, that Charles Manson’s prosecutor Vincent Bugliosi stole from Wellman.

I have repeatedly recommended Bugliosi’s book about the O. J. Simpson case, entitled Outrage: The Five Reasons Why O. J. Simpson Got Away with Murder because it is a guide for how to craft closing argument. Trial lawyers can take gems from this treasure trove of arguments and polish them for their own use. 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 in the book. Bugliosi’s “Final Summation” chapter is jammed with arguments and runs a hundred pages.

In prior articles, I quoted arguments from Bugliosi’s book as jewels that could be stolen. Little did I know at the time that Bugliosi has stolen them. Dekle’s book identified Bugliosi as the perpetrator of thefts from Wellman.

In “The Winning Closing Argument”, I wrote:

Octopus Analogy - This is one that, as Bugliosi stated “would have been ideal for the Simpson jury at the beginning of closing argument. . .” Here is Bugliosi’s argument:

“I wonder if any of you folks have read Victor Hugo’s account of the octopus. He tells us of how it doesn’t have any beak to defend itself like a bird, no claws like a lion, nor teeth like an alligator. But it does have what could be called an ink bag, and to protect itself when it is attacked it lets out a dark fluid from this bag, thus making all of the surrounding water dark and murky, enabling the octopus to escape into the darkness.

“Now I ask you folks, is there any similarity between that description of the ink bag of the octopus and the defense in this case? Has the defense shown you any real, valid, legitimate defense reasonably based on the evidence, or has it sought to employ the ink bag of the octopus, and by making everything dark around Mr. Simpson, tried to let him escape into the darkness.

“I intend to clear up the water which defense counsel have sought to muddy, so that you folks can clearly see the evidence, the facts, the issues in this case, so that you can behold the form of the retreating octopus and bring this defendant back to face justice.”

Now, that’s a compelling analogy that Bugliosi modified slightly to fit a situation where the other side has set out to confuse and confound.

Little did I know when I wrote the article that Bugliosi had stolen it from another great artist—Francis Wellman. Bob’s Six Capsules, on page 152, describes Wellman’s summation in the prosecution of Carlyle Harris:

“Wellman first observed that when Taylor (defense counsel) pointed out the prosecution’s failure to prove that Harris had worked as an actor, he tacitly admitted that the prosecution had proved everything else that Wellman had said in his opening statement. He next mentioned that Taylor had promised ten days of defense testimony and delivered only two, and the defense that was presented was like the defense of an octopus. When attacked by a predator, the octopus sprays a cloud of black ink to befuddle its attacker and slips away in the confusion. The defense was nothing more than a cloud of black ink, and the jury should not allow the defense to escape into that cloud.”

Bob, as always, contributes his sage advice to the reader  concerning the use of this octopus argument as follows:

“. . . Prosecutor today still use Wellman’s octopus analogy, but it is a strategy that is fraught with peril. Appellate courts will sometimes approve the octopus analogy as fair comment on the defense, but not always. This is especially true when the prosecutor is the guardian of the truth. . .”

Also, in the “The Winning Closing Argument” I discussed another of Bugliosi’s arguments—the Rope Analogy as follows:

Rope Analogy – This is an argument that Bugliosi writes that he gave in a double-murder case and that the prosecutors could have used in the Simpson case:

“I think that counsels’ problem is that they misconceive what circumstantial evidence is all about. Circumstantial evidence is not, as they claim, like a chain. You could have a chain spanning the Atlantic Ocean from Nova Scotia to Bordeaux, France, consisting of millions of links, and with one weak link that chain is broken.

“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 one 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.”

At page 160 in Six Capsules, Dekle notes: "Wellman argued that 'Circumstantial evidence, gentlemen, is not like a chain, where one weak link can weaken the entire chain. It is like a rope or cable; each fact is a strand of that rope; and as we pile one circumstance on another, one fact on another, so we add strands and strength to the rope until we get a cable strong enough to bind the prisoner to justice.'"

Where can you find the artwork of great trial lawyers? Here are some resources for great opening and closing arguments:

Naturally, at the top of the list are Bugliosi’s books: Outrage: The Five Reasons Why O. J. Simpson Got Away with Murder and Helter Skelter.

Next on the list is Joel Seideman’s In the Interests of Justice. This book includes transcripts of notable cases with trial lawyers effectively advocating with storytelling; analogies; phrasing; humor; pathos; logic; themes and so much more.

Redeeming the Dream: Proposition 8 and theStruggle for Marriage Equality by David Boies and Theodore Olson contains tips and examples of great advocacy.

Last on this short list is Bob Dekle’s Six Capsules.

This leaves the question: If Bugliosi stole the octopus and rope arguments from Francis Wellman, from whom did Francis Wellman steal them?

-->