The people who vote decide nothing. The people who count the votes decide everything. -Josef Stalin.


Sailors use a method called 'dead reckoning.' You know where the voyage began. You know your course and speed, and you have some idea about the current. You can plot an approximate, dead-reckoning fix. But you cannot be sure where you are until you sight land or a fixed object on the sea, such as a navigational buoy.

In trial, you have a similar experience. You can't know for sure what the jurors are thinking about your presentation until they come in at the end and give you their verdict. You look for clues, but the available clues are notoriously unreliable. In the first criminal trial in which I was involved for the defense, I was seated on the back row behind my mentor, Edward Bennett Williams. One of the jurors seemed to be 'with us.' He smiled at all the 'right' times, he followed the significant points we were making. He nodded affably to us in the halls. When deliberations began, the other jurors elected him foreman, and he led the jury to guilty verdicts on eight out of seven possible counts.

Given the limitations on dead-reckoning navigation, what must you do?

First, keep to the trial plan you began to develop when you got the case; hasty change is bound to be based on inadequate data.

Second, have markers for yourself and the jury that predict your progress and then permit you to go back and refer to points along the way. Everything is leading to the closing argument, when you will try to bring the elements of the story together. Put your story, and its elements, clearly at the first opportunity, in the opening statement, and in voir dire. Tell the story and outline the evidence.

Third, use demonstrative evidence to underscore key themes in your story.

You have the best chance of predicting how the jurors will vote if you understand and identify with them and their life experiences.

It matters to jurors who is speaking, and who they are. If you are a prosperous-looking white male, an urban black female juror will probably approach the story you tell with caution, perhaps even suspicion. If you think to navigate past this obstacle by overcorrecting your course and focusing undue attention on that juror, you will make the problem worse because you are going to be viewed as condescending.

Your task is to step outside of your own education and upbringing and try to see the world from all the different perspectives that jurors will bring to bear. In argument, all trial lawyers use analogies from everyday life. Your analogies are worth nothing if they describe an everyday life that might be yours but is foreign to the jurors. You live in a law firm. You might hang out with people who make, or think they make, broad-gauge economic and social decisions, weighing and sifting and deciding at a distance. Most jurors deal with the consequences of those decisions--they buy the products, breathe the air, pay the prices, try to get along.

Brecht asked, In the evening when the Chinese Wall was finished, Where did the masons go? In twenty-five years of lawyering, I have found nothing so striking about my profession as its members' cultivated ignorance of what people think of them and their clients. That sort of arrogance is costly. Good jury researchers can help us overcome it. Their work need not be unbearably costly. In fairly large cases, a couple of good jury studies will be helpful -- I am not talking about full-blown dress rehearsals, but more modest efforts designed to make sure you are on the right track. Of course, in the "big" case, the client may be able to pay for the full treatment. In pro bono cases, some of the brilliant jury consultation firms will volunteer their time. You can get the same sort of help from political consultants, whose help I have found invaluable in cases where we had no money for formal research.

If you are going to use this kind of expertise to help you navigate, get it early. Lawyers tend to wait until the case approaches trial before retaining a consultant. It would be better to get help as soon as you have your story in some tentative form, to help you make sure you are not making early and significant errors.

The jurors are going to size you up. They will look as well as listen. They will watch how you treat the lawyers you work with and the paralegals who help you, the court personnel, and the witnesses. If I am going to navigate, I like local knowledge. Read all the papers in town. Listen to all the radio stations. Think about what churches people attend, who their political leaders are, what the issues that concern their daily lives are. Even in your own town, it is so easy to live apart from the people around you.

I used to have a favorite saying about this, but I ruined it. I was arguing in front of Judge James Leff in the New York Supreme Court, Criminal Part, and urging him to take a kindly view of my clients' political views. I dragged out my saying, 'And avert thine eyes from the lore of the wise, that have honor in proud men's sight. The simple, nameless herd of humanity hath deeds and faith enough for me.'

'That's from Euripides,' I added, smugly, I guess.

My opponent, a redoubtable chunky Assistant DA from Homicide with a heavy Brooklyn accent, rose to respond.

"Your Honor, I don't know about these Greek poets. I know when I take my pants to the tailor, he says, 'Euripides?' And I says `Yeah, Eumenides.'"

In sum, understanding the voices and aspirations of jurors helps you to understand whether the course you think you are steering is the same one the jurors are following.

You are going to find your own voice through experience. It had better be your own, and not a borrowed one, because none of us is good enough to maintain pretense through a long trial. Jurors are quick to know who is being a phony and who is not. In mock jury survey work, trial consultant Hale Starr asks the panel whether they think the presentations were being made by an actor playing a lawyer or by a real lawyer. It's a good question. You want the jurors to think you are a real lawyer, with a real client who will really hurt if this case comes out the wrong way. Everybody knows that television actors' "clients" don't really win or lose.

As you navigate, remember also that you are trying to reach all of the jurors, to bring their collective judgment to bear. A good jury is a good cross-section, and you want their different life experiences, backgrounds, knowledge, and recollection to come together in the jury room.

When you make your closing argument, you will tell the jurors where you think the voyage has taken you. The clearest way to trace the voyage is by the markers you have passed along the way. The closing evokes the witnesses and exhibits in a coherent pattern that fits the story. That pattern cannot be made anew. Its elements must be found objects, gathered up from the signals you have sent in examining witnesses. That is, your witness examinations must have been properly crafted to leave your most persuasive points ready to revisit. The exhibits you have used now reappear in logical order.

Dead reckoning takes us past markers familiar to us, if only in our minds. We should have made this journey many times before. I have seen so many lawyers who take their cases one witness, or one day, or even one week at a time. They have not put together in mind's eye all the testimony and all the exhibits to have a firm sense of the whole voyage. This is wrong.

In federal criminal cases you are entitled to a 'theory of the case' instruction. Regardless of forum or case, you should always draft and request such an instruction. Having the judge tell the jurors your theory--and note that you are entitled to a verdict if the evidence supports it--does more than help put your story across. The judge's involvement may cause jurors to examine your story more seriously than they otherwise would, as a plausible alternative to the view they had been inclined to take.

None of these suggestions means that you should continually turn to the jury like a one-person Greek chorus to draw the appropriate lesson from some bit of testimony or try to provide a voice-over as in a B movie. Usually, you must wait till closing argument to bring it all together.

'Members of the jury, do you remember when I spent about a half-hour reading Mr. Smith all the things he said before, and making sure he said them, and that he was under an oath when he did? I guess some of you must have said, 'What is that lawyer doing, wasting time with that?' I want to suggest I was doing something very important. I was giving Mr. Smith a chance to deny he swore to those things, and he didn't deny it. I didn't want anybody in this courtroom to say we didn't give him a chance. Because make no mistake, the evidence that you heard shows something pretty serious. This fellow Smith tells two different stories under oath. He is a person who would lie under oath, and he admits that. You have got to decide whether he lied here in your faces, and whether what he told when it was all fresh and before the prosecutors put pressure on him wasn't the real story. In order to decide that, you would need Mr. Smith to admit that he said those things, and that's what I was asking him to do.'

In this example, you are calling to mind markers left along the way and suggesting to jurors a way of analyzing the case for themselves. This is not a new insight. Here is what Dan O'Connell, the great Irish advocate, said about it:

You all know how to argue to a group of people who are set against your basic beliefs. You never get them by showing them that you have got the matter all worked out, in a set speech like the catechism---or whatever might be the Protestant equivalent of the catechism. We can't drag the jurors along with us. Make them imagine that their movements are directed by themselves. Pay their capacities the compliment of not making things too clear. Rather than elaborate reasonings, throw off mere fragments, or seeds of thought. These will take root and shoot up into precisely the conclusions we want.

To use the metaphor with which I began, your closing argument is a detailed plan of the house you have built by your examination of witnesses.

* The above was excerpted and modified by the 'Lectric Law Library from 'Examining Witnesses' by Michael E. Tigar The Amer. Bar Assn. 1993. 315 pgs hrdbnd; Prod.Code 531-0093; $110. For more info call the ABA at 312-988-5522.

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