WASHINGTON, March 26, 2017 — A trial lawyer must persuade. Here are some of the principles of this learned art.
in a courtroom, an attorney’s job is to win. Accomplishing that task involves more than simply presenting the “true” evidence and then sitting down.
Presenting a client’s case involves the use of many psychological concepts, and requires a rock solid understanding of the facts of the case and the law that applies to the facts. An adage all attorneys know advises
“… if the law is in your favor, pound the law; if the facts are in your favor, pound the facts, and if neither are in your favor, pound the table.”
The adage understands that few judges will rule against clear precedent (a term meaning that prior legal decisions will be upheld and followed). When relevant law favors a position, the attorney is admonished to identify it and return to it again and again in both questions (that ask for confirmation) and argument to the court and jury.
“You agree, Mr. Witness, that the law clearly says that…”
If the law does not clearly favor the facts of the case, the attorney is advised to emphasize the facts most likely to engender sympathy for the client so the judge or jury can favorably interpret gray areas in the law.
Persuasion involves knowing the audience. Trial attorneys must assess who is deciding the case and must include analysis of their likes, dislikes, biases, background, sympathies, education, motivation and much more.
A popular legal television show, Bull, portrays a psychologist turned jury consultant. Dr. Bull employs scientific and systematic methods to learn about potential jurors. The show is a fascinating portrayal of the mind-work involved in choosing jurors, then taking the viewer through the trial with analysis of the process of persuading the jurors.
It is said that presentation is everything. Lawyers practice their presentations to a jury as if those jury members were all eight years old. The underlying concept is the recognition that what we say is not always what others hear and that what we mean is not always what others understand. Thus, the notion of presenting legal arguments to a child forces the attorney to make his global presentation understandable to everyone and to use language equally understandable to everyone.
Don’t we all “hate” lawyer-speak?
“…I made three arguments in every case. First came the one I had planned – as I thought, logical, coherent, complete. Second was the one actually presented – interrupted, incoherent, disjointed, disappointing. The third was the utterly devastating argument that I thought of after going to bed that night.” —Justice Robert H. Jackson on his career before becoming a judge
Good trial attorneys know that everyone, obviously including judges and jurors, relates better emotionally to a “story.” Thus are advised in their trial training to present their case as a story rather than simply presenting cold facts.
Lady Liberty in New York is not emotional and she has a blindfold. Justice is said to be blind to emotion — and it should be. Nonetheless, if an argument lacks an emotional component it will not connect with a judge or a jury. Attorneys are taught to convey facts accurately, but also to set a scene so the audience can make an emotional connection to the events and characters. Stories force listeners to become attached because they are no longer simply hearing abstract facts or generalities. Jurors, like all of us, want to know “what happens.”
The case story, if molded properly, has one theory. The theory of an attorney’s case is the single most plausible storyline involving the interpretation of the facts. It is the core around which all points of a case are organized, and it is the idea that remains standing when other parts of the case are bruised, battered or eliminated.
The case theory, attorneys know, is both a logical and emotional center. It is consistent with every piece of evidence and it considers the subjective positions considered by the judge and jury. The attorney will repeat often “and that is why my client…”
Next, courtroom advocacy is not about proving the truth of a case. It is about proving, objectively, that a client’s position is preferable to the other side’s position.
Two men are in the woods and spot a menacing-looking bear. The first man asks the second man if he can run faster than the bear. Second man: “No, but I can run faster than you.”
Lawyers always have arguments for or against a legal position. An argument requires logic, but a legal argument is not simply a logical connection that promises a universal, absolute conclusion or truth. It is a practical form of argument that aims to establish one claim as more probable, likely or reasonable than another.
In diving into a case, attorneys learn specific techniques. The sexy portrayals of cross-examination on television and the movies, in which an attorney eviscerates a witness, rarely happen in real life.
Tom Cruise, as the lawyer in A Few Good Men, to Jack Nicholson, as the witness: “I want the truth!” Nicholson: “You can’t handle the truth!”
While their techniques are not always sexy or TV-dramatic in form, attorneys are taught how to discredit a witness.
Attorneys point out bias where it exists. Perhaps the witness is testifying under an immunity agreement or plea bargain in a criminal case, or has a personal relationship with someone involved in the case, or even is being paid for offering “expert” opinions.
Contradictions are often the focus of this tactic. Attorneys will show a witness’ prior testimony is inconsistent with that of his or her current testimony, or with statements of other witnesses, or with other evidence, enabling that attorney, figuratively, to then “blow the witness out of the water.”
Character is a subject that attorneys can also use to discredit a witness. If the witness has been dishonest in other statements or actions or has a criminal conviction showing past dishonesty, his or her current testimony can be destroyed.
Limitations are another method employed for discrediting a witness. If it can be shown that the witness could not see what occurred because the witness’ view was obstructed, or that the ability of the witness to process information was impaired, perhaps due to intoxication, the testimonial impact of the witness’ statements will certainly be diminished.
Cross examination of the older lady in the movie My Cousin Vinny: She testified she saw a car that was at quite a distance. Cross-examination question by the lawyer holding up two fingers: How many fingers? Answer: Four fingers.
Finally, attorneys understand how to “cross the line” to advantage. Statements made, questions asked and answers given by witnesses are all subject to objection by the opposing attorney.
Recall the Charles Manson trial decades ago, when someone entered the courtroom and showed the jury the newspaper headline reading “Manson guilty, Nixon declares.” Manson’s lawyer jumped up and objected. The judge told the jury to ignore what they saw.
Toothpaste cannot be put back into the tube. Juries cannot disregard what they have heard, despite what a judge might tell them. Psychologically, when we are told “No” we instinctively react with “Yes.” Tell people that they can’t and they double down on their efforts to do what was prohibited.
Thus, attorneys have been known to say things or ask questions they know might be objectionable, simply to get the impression into the minds of the jury. Knowing what they said or asked is objectionable is a calculated risk, as judges too know that their telling the jury to “disregard” may not be effective and a mistrial might be the only possible “fix” to resolve the objection. Then, a lawyer might be faced with sanctions.
How interesting is this all? Every case, each with different facts, each with different applicable laws, each with different personalities, all to be assimilated to produce the best possible result…
As for the truth? Despite all the posturing and all the psychology, trial results are most often what they should be. While individual jurors may need to be talked to as if they were eight years old, the collective wisdom of a jury is rarely wrong.
Attorneys prepare and posture nonetheless. Almost needless to say, prosecution attorneys needed to work harder in the O.J. and Casey Anthony murder trials.
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website.
His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website: http://www.samakowlaw.com/book.
Samakow has now also started a small business consulting firm. His new book “Step By Step, Achieve Small Business Success” is available at www.thebusinessanswer.com.Click here for reuse options!
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