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2015.3: A Few Thoughts on Trial Advocacy

People don’t like being manipulated or controlled by other people. They will bridle and resist if they think you are trying to convince them to do something. The harder they think you are trying, the harder they will push back.

But trial advocacy is the practice of convincing people to do things.

So ideally, trial advocacy should be transparent. At the end of the case the jurors, having ruled for your client, should think that they came to their decision without regard to anything that you did. They should believe, when they free your client, that they were compelled by the facts and the law to do so, and that your only role was to bring them those facts and explain to them that law.

If asked in jury selection the jury, ((I tend to use “jury” and “jury panel” interchangeably in the context of jury selection. The jury is a subgroup of the panel, and will treat the ideas of the panel as its own ideas. The jury will also remember your treatment of the panel, and will respond as though it was your treatment of  the jury. Beware. You can’t mistreat a member of the panel and expect the jury to forgive you because that panel member didn’t make it on the jury.)) given the accusation, suggest the possible defenses they can think of; ideally one of these defenses will be your defense. If a panel of laypeople doesn’t think of your defense as a possibility, that defense is a stretch.

If you can show the jury how the prosecutor is manipulating them, you’re doing two things: you’re creating resentment in the jurors toward the prosecutor, and you’re creating trust in the jurors toward you. Think about the tricks the prosecutors in your jurisdiction use to get jurors to say the things they want to hear, and in your voir dire (it’s good to go last) pull back the curtain on them.

If you object in voir dire to the prosecutor’s misstatement of the law and the judge sustains the objection, the prosecutor might as well start filling out a dismissal.

You can earn even more trust by showing the jurors (in voir dire) a way in which you are manipulating them. Sometimes I’ll start communicating with the panel non-verbally, and get them to respond non-verbally. Then I’ll make sure to explain to them what I was doing, and why. (If advocacy were a confidence game, this would be the short con.)

Asking jurors post-verdict why they decided what they did is a good way to be lied to. Almost always, the answer is “the evidence just wasn’t there” on a not-guilty verdict and “there was just too much evidence” on a guilty verdict. But they’re not just lying to you; they’re lying to themselves as well.

Here’s the theory on which I try cases: jurors make their decisions early (during opening statements if not during voir dire) and then, throughout trial and beyond, apply all of their cognitive biases to support and rationalize those decisions. For their minds to be changed between opening statement and deliberation, what happens during the testimony has to be so extreme that it shakes the foundation of their beliefs. Less-extreme developments that might challenge their beliefs won’t get through their selection bias.

Most evidence is important to the advocate not because it’s going to change jurors’ minds, but because it is going to give jurors who are already on the advocate’s team evidence when they go into jury selection. Whichever way the split goes when deliberations begin is most likely the way the verdict is going to end up—if the jury is 7–5 for conviction, they’ll likely convict; if they’re 8–4 for acquittal they’ll more likely acquit. That’s not a function of the evidence, but rather of the personalities of the jurors.

Closing argument is the time to show your jurors what ammunition they have, to suggest how they might use it, and to sabotage the prosecutor’s jurors’ ammunition. If you are ahead going in to deliberations, you want your jurors to have plenty of ammunition to get the other jurors to change their minds without losing face. And if you are behind when deliberations begin you want your jurors to have plenty of ammunition to resist the pressure from other jurors to change their minds.

A trial lawyer shouldn’t always be trying cases, any more than a professional fighter should always be fighting. Doing it right requires training and practice and conditioning. Defending a criminal case takes a lot out of a lawyer. Working yourself to exhaustion or worse benefits nobody.

Put on your own oxygen mask first.

Take a vacation.

Get some rest.

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