Planning, Preparing, and Writing Jury Arguments

Argument consists of a claim and its proof.

When the moment is right, will you be ready with the right words?

In the end is the beginning. Jury argument comes at the very end of our opinion shaping performance in the courtroom, but the end reflects the beginning and the middle. What we say to the jury as the trial closes is greatly influenced by all that has come before. Remember the old bromide that the trial is all about communication - first, "We tell 'em what were gonna tell 'em," (opening statement); second, "We tell 'em," (direct and cross-examination); and third, "We tell 'em what we told 'em," (jury argument).

In skills training, we refer to the various parts of the jury trial as though trial were some sort of segmented creature composed of distinct and separate parts that we label as voir dire, opening statement, direct, cross, and argument. We also focus on facility with objections and the presentation of expert testimony. But trial is more than these discrete phases. It is greater than the sum of its parts. Each part intertwines, nourishes, and synergizes the others.

While it's true that everything that has taken place in the trial coalesces in the jury argument, don't make the mistake of neglecting other portions by saying to yourself, "Not to worry, I'll take care of this in summation." Plant the seeds for your jury argument in the earlier parts of the trial. If you don't, there will be no crop to harvest, i.e., nothing to talk about in argument.

Great jury arguments are rare. Mediocre arguments happen regularly. Ineffectual arguments are commonplace. The challenge to you is to raise the bar. Don't meet an ineffectual argument with mediocrity. Take time to develop and wield the skill to alter the case outcome, perhaps dramatically, with a movingly persuasive argument. Remember, there's always room for improvement in this face-to-face communication with jurors. If you can rise to the challenge, the courtroom will always be full when you argue - and half the audience will be other lawyers who are there to steal your stuff.

Start planning, preparing, and composing your jury argument from your entry into the case. Planning and preparation of your jury argument begins in earnest when you enter the case. For prosecutors, this is usually when the case first appears on your desk. For defenders, it often begins when you have the initial meeting and interview with your client in your office or at the jail. Learning about your case means more than reading the police offense report. Pretrial preparation includes investigation, interviewing witnesses, preparing exhibits, and conducting formal and informal discovery, plus a lot of brainstorming and tactical analysis. In preparation for trial, you'll certainly spend time researching and writing in the library and on your computer. Sometimes you'll make bad strategic choices (maybe on a par with Napoleon's decision to invade Russia) but most of the time your advance planning will pay off.

This may sound premature, but I suggest that you do an write-out of your tentative jury argument early on in the pretrial process. When does that time occur? There is no definitive answer. The best answer is that time occurs when you personally believe that you have a reasonably good grasp of what happened, i.e., when you have basic answers to the "who, what, when, why, where, and how" of your case and the other side's case. In sorting out your opening statement and argument, you may find it helpful to do a computer based timeline chart of the case story, focusing on the major visual images you wish to establish together with supporting details.

At the same time you do the write-out argument of your case, do a write-out of what you anticipate your opponent will say in argument. Yes, do a write-out of the other side's argument also. This will force you to come to grips with the weaknesses in your own case. Remember the advice of Abraham Lincoln, "When I'm getting ready to reason with a man, I spend one-third of my time thinking about myself and what I'm going to say - and two-thirds thinking about him and what he is going to say."

When you plan your argument, what is the first thing you are you looking for? Simple. Find the drama in your case, the thing that draws interest and the thing that you can enthusiastically believe in. Drama is the thing that stirs emotion. Look for the the things about your case that evoke empathy or outrage, two of the basic human emotions that move us to action. Have you ever listened to an argument and thought "There was no feeling to it." If so, that was an argument without drama. Chances are, the advocate was cold, plodding, and disengaged and his text solid gray in tone.

For the ear too much, for the eye too little, for the mind nothing! We all know that trials are a war of mental images. You are competing with the opposition for brain space in the jurors' minds. As you settle on what you are going to say in argument, think about graphics (visuals, eye candy) that would support your verbal arguments. Graphics, whether generated by a laptop or a flip chart, must be used to support your argument, not vice versa. The jurors will be convinced by you, not your visuals. But, you should not underestimate the persuasive power of a tell-and-show argument. As your investigation and preparation of the case continue, keep your mind open to the sort of demonstrative visual evidence that you can create to supplement your words. Remember Yogi Berra's advice: "You can learn a lot by watching."

Flipcharts: If you eschew the electronic methods, e.g., PowerPoint, of presenting graphics, there is always the old-fashioned flip chart. All you need is the flip chart ( a large, thick pad of thin sheets of paper), an easel to mount the chart, and a supply of felt-tipped markers. You can prepare the text in advance and/or write on the chart during your argument, as though the flip chart was a chalkboard. If you prepare your graphics on the flip chart in advance of argument, separate each written page with a blank page. If the pages are so thin that the jurors can see through them, you may want to tape or staple two pages together. [Hint: Some lawyers write crucial testimony on a flip chart while witnesses are testifying; they do this so that in argument they can quickly refer the jury back to the exact words of the witnesses.] To assist you in finding your place on the flip chart, you can easily identify the pages by flagging them with paste-on plastic divider labels. Remember to print using letters big enough for every juror to see. If you write on the chart during your argument, keep the messages very short. You do not want to stall your argument by taking too long to write your graphic. Don't misspell. [Hint: You can use your flip chart as a source of refresher notes by writing lightly on it in pencil.]

I prefer the flip chart to the chalkboard or white board with dry markers. With the chalkboard and white board, you can't flip the jury's attention from one message to another. If you try to put several messages on the board, the jurors will read ahead of you. With chalk, there is always chalk dust to dirty your clothes. To move to another message, you have to erase and write. This is time consuming and clumsy.

Keep track of your argument brainstorms. As you learn about the case, start thinking about what you might conceivably say to the jury in argument. Various potential arguments will occur to you. Inspiration come at odd places and times, e.g., predawn daydreaming in the wake up hour. You'll need a way of remembering the gems that flash through your mind.. At the outset, make yourself a file, of the computer or paper variety, and label it "ARGUMENT BRAINSTORMS." Carry a pen and a small post-it note tablet in your briefcase. Keep a spare pad and pen at bedside. Starting with day one, jot your ideas for argument down on post-it notes, and put them in the brainstorm file. It's easier to organize paper arguments if each is on a separate post-it note. It may help stimulate your creative juices to run off a copy of your state's pattern jury instructions that define the offense and potential defenses. You may need to interpret and apply these legalisms for the jury. Be on constant lookout for fresh ways to express the story of your case and to evoke emotional responses in the jurors. Later in the pretrial preparation process, you will assess, reject, grade, and order the various arguments contained in your brainstorm file.

Start gathering persuasive arguments long before you enter the case:You can prepare for your jury argument even before you have a case. Start an arsenal or treasure trove of eloquent arguments and sayings. It will grow into a wonderful resource that can be of use throughout your career as a courtroom lawyer. Miquel Cervantes defined a proverb as "a short sentence based on long experience." Don't pooh-pooh the idea of collecting the wise words of others. You don't have to use the exact quote in your jury argument. It's the idea contained in your gathered argument that is so valuable.

How do you gather useful arguments? Be a ripper-offer. One of the ways to learn how to do something is to watch and listen to a skillful person do what you are trying to do. That's one reason courtrooms are jammed when good lawyers are arguing their cases. Those people in the audience - they're other lawyers trying to find a technique or words to adopt, i.e., borrow. Be one of them. Show up when competent lawyers are arguing their cases. Listen for positive arguments. Write the good stuff down. Keep it in your argument file. Start a story bank of brief illustrative stories. When it comes time to prepare an argument, cook up your own stew, using your larder of eloquence as a resource. The idea is not to assemble your entire argument from spare parts. You simply use your specimens of eloquence as starters to get your creative juices flowing.

Another way you can get ready for the case that hasn't yet walked through the door is to read (aloud) from transcripts of arguments given by persuasive lawyers. There's a long list of readily available videos and transcripts of arguments in my Opening and Closing course. When you read another lawyer's argument, the idea is to taste it not to swallow it whole. For example, you may find a story that will connect to the substance of your message or case storyline. Where do you find complete arguments. Such transcripts are often available in classic cases. If you search the web, you may even find a transcript of jury arguments from a famous case, e.g., a complete transcript (including the excellent jury arguments) of a well known 2002 child murder trial or a terrific prosecution argument that swung the case, an article (1), (2), (3) or book (1) concerning the efficacy of jury nullification (a dangerous concept for the defense to argue if it cuts both ways).

In writing a coupIe of books on the subject of jury argument in criminal cases, I have found it useful to consult books of quotations for ideas. There are many sources on the web that may give you ideas to pep up the words you use to communicate your thoughts in argument. Here are some sources of quotes: (1), (2), (3), (4), (5), (6), (7), (8), (9), (10), (11) You'll find sites with:stories (1), and poems, (1), (2), that may be convertible to a form that you can use in your argument, e.g., (1), scientific quotes, e.g., (1), math quotes, e.g., (1), inspirational quotes, e.g., (1), quotes from famous folks, e.g., (1). There are numerous searchable quote databases, e.g., (1), (2), (3), (4). Sometimes a phrase, e.g., (1), (2), (3), (4) is just what you need to headline the theme of your case. If you have trouble with grammar, you'll find sites that can help, e.g., (1), (2), (3), (4), and (5). I would also suggest a site that contains transcripts of many famous speeches. You may find it useful to listen to some of the Supreme Court oral appellate arguments that are available online. Read some stemwinding sermons. Religious speakers must be giving moving talks because church is one of the few places where people go to hear speeches and voluntarily put money in the collection plate to keep the place operational. If you are broke, like to read, and none of these other resources seem appealing, try this site. Finally, if you don't have time to create or ferret out an arsenal of persuasive arguments, consider getting a copy of the jury argument book; it contains over 5500 sample arguments.

Knowing what the trial judge will tell the jurors can give you a starting point in discussing the definition of crimes and defenses, as well as basic rights, e.g., the privilege not to testify, the burden of proof, the presumption of innocence. The web can provide you with standard instructions used in some jurisdictions, e,g, (1), (2), but you will probably have to purchase a set of model or pattern jury instructions custom written for your state. Some statewide prosecutors organizations post downloadable standard jury instructions on their web sites, e.g., TX.

Start with a lively "hook" or "grabber" will gain the jurors' attention. In recent years trial lawyers have begun to understand the importance of striking while the iron is hot. Jurors have short attention spans. Set the hook with an attention arresting analogy, a rhetorical question, a visual, a dramatic statement, or some other attention grabbing device. Do this in the first few sentences of your argument. It has to be brief, and it has to be relevant to the theme of your case. Don't waste the opening moments on "thank you's" and mindless platitudes. The idea is to rivet the jurors to their seats, not make them wish they could crawl under 'em. Your hook has to synthesize your case in a form that sticks to the mind. Perhaps, your hook may may even contain a rhyme (1). Remember, "If it doesn't fit, you must acquit." Keep a list or notebook of expressive phrases, similes, and metaphors. See Sample Arguments I Learn a bit about how advertisers (1) grab and hold their audience's attention.

Feed off of your opening statement. Jury argument should draw upon the story that you told in opening statement. The descriptive theme and overall theory of the case should be consistent from opening all the way through argument. Always coordinate your opening and argument. Though most of your opening statement will be fact oriented, e.g., telling the jurors what facts will or won't be proven, try to include a brief summary of the legal issues and the decisional solutions you will ask them to make. Tell the jurors what you want them to decide in opening, and in argument underscore why this is the correct decision. You never want the jury unsure of exactly what you want from them.

Studied organization and coordination of the opening statement and the jury argument is particularly essential if you are trying the case with co-counsel and you have agreed to split the opening and argument. When one of you will give the opening and the other the argument, each must know what the other plans to say. There must be a common theme that binds each speech.

In opening statement, you have talked much more about the facts or lack of facts than the legal issues, the applicable law, and the step-by-step reasoning to a correct solution. In argument, harken back to the proven facts (prosecutors) or unproven allegations (defenders) and clarify the legal issues. The jurors must understand the exact problem and its constituent elements before they can decide how to solve it. Argument is the juncture for you to explain and make clear to the jurors how the applicable law applies to the proven or unproven allegations of fact and how their application of the law to the facts points unerringly to the proper decision.

Form may be as important as substance. We are told by behavioral scientists that some jurors may listen cognitively to as little as half of the spoken words that their ears hear. Much of what jurors think about you and your case will come from non-verbal sources.

The cluster of emotional reactions, e.g., fear, anger, anxiety, that are engendered in the jury by the evidence, the participants, and the lawyers will affect the jurors' decision-making. Jurors get their impressions from watching and listening. What will they see? What will they hear. For starters, they'll see you and hear you from beginning, i.e., voir dire, to the end, i.e. jury argument. Jurors' feelings about the parties may be as important as the legal issues. You will be assessed on the way you appear. What image will you project in court? The image you present in argument should be consistent with the way you have appeared previously. The jurors' perceptions of your personal traits, particularly your integrity, will influence their acceptance or rejection of your argument.

You must display an emotional commitment to your case. If you are cold, sterile, and clinically analytical in your trial persona, your jurors will take their cues from you and be infused with the same emotional set. If you show no enthusiasm for your articulated arguments, can you realistically expect the jurors to embrace them? Jurors will mirror the emotions that are expressed in the courtroom. If your case calls for the jurors to be aroused, it's up to you to fan the flames. Strive to transfer your passion for your case to the jurors. For them to feel it, you must feel it. This may not be easy for recent law school graduates, because law school trains us to be cold and clinical. It's a miracle that our humanity, curiosity, and enthusiasm survives a legal education, but they do. Try to recapture these human feelings when you start trying cases. On the other hand, emotion (passion) supplies only the sails for your boat. Logic (reason) is the rudder that allows you to guide your craft to its destination. You need both. To paraphrase Kahlil Gibran's The Prophet - The mind that is ruled by emotion alone is an unattended flame that will burn its own destruction.

Don't put yourself down in your statements to the jury, unless you are absolutely sure the juror's won't agree with your negative assessment of yourself. Since your can never be that sure of the jurors, never put yourself down, period. On the other side of the coin, you never want to appear arrogant and egotistical.

You can't sell it if you wouldn't buy it. To persuade and convince the jury that your argument is correct, you need to believe what you are saying. In effect, you have to convince and persuade yourself of the validity of what you are going to be saying to the jury. How do you buy into your own case? It will help if you visualize the story of your case, putting yourself in the place of the various participants that support your position. See it through their eyes. You will have to connect with your theory of the case, i.e., your version of what did or didn't happen, trying to feel a part of it. Put yourself in the shoes of the jurors. What questions would they ask about your story of the case, if they were allowed to ask questions of you during argument. The jurors will surely bring analytical reasoning to the deliberating table, but they will also be viewing each side's case with a background of common sense, intuition, analysis, emotion, creativity, culture, and politics. Remember, it's all about the jurors and what they choose to believe or disbelieve.

The jurors have to be listening and so do you. No matter how persuasive and eloquent you may be, no matter how wonderful the content and presentation, if the jury doesn't hear you, you've flopped. You've convinced no one because no one on the jury was listening to the terrific argument you gave. What's the solution? There are lots of things you can do to motivate your jurors to listen. Spice your argument with persuasive techniques such as figures of speech, illustrative visuals, demonstrations, and power verbs and nouns. Search for the right words to explain, exhort, and inspire. Improve your appearance. Work on your voice. In short, never quit trying to improve your craft of persuading others to do as you wish. Insight into human nature is a key to your skill as a communicator. From day one of the trial, become a student of how your jurors watch, listen, and react. Cater to them in all you do, including argument.

Similarly, you have to be listening during the trial for witnesses and opposing counsel to say things that strengthen your argument. In every case, the other side will serve up a few "gimmes" that you can use in argument. You have to be listening for them when they happen, and you have to remember them . Make brief contemporaneous notes of telling points that you want to remember to address in your argument.

You may want the court reporter to make a visual copy of key admissions from hostile witnesses or opposing counsel for "tell and show" use in argument.

"Words are the skin of a living thought." Trials are about words. Why? Because words are the pegs we hang our trial stories on. Yet, unlike visual images, sound is fleeting. So we must make it count. Because words are akin to "loaded pistols," our job in argument is to pick them carefully and put them in the most influential order, never letting the tongue get ahead of the mind. If you speak in the Delphic idiom (1), you will not be heard. Use too many words and the meat may be lost in the sauce. Remember Abe Lincoln's criticism of an opponent's jury speech: "He compresses the most words into the smallest idea of any man I've ever met." So, it's about word choice and word order. We all know that two sentences may have the same content but very different persuasive impact. The key is eloquence, our style of discourse. It makes the difference. Borrowing from Lyndon Johnson, "It's the difference between chicken salad and chicken ____t. (feet?)"

So, how can you elegantly polish your argument for persuasive impact? Use provocative and attention-getting words in your argument. When, as a matter of style, you are searching for an alternative word with the same denotative range as a word you don't want to repeat over and over again, dive into Roget's II. (It contains over 35,000 synonyms.) or the interesting Plumb Design thesaurus Find some power words and arrange them so they can flex their muscles meaningfully in the jurors' minds. Rhymezone includes definitions, rhymes, synonyms, etc. Paint picturesque word pictures of your case in vivid living colors. Color the opposition's case in a wash of drab opaque grays.

The purpose of using better words is to get better responses. For lawyers, all of this is easier said than done. The language of lawyers and the law is cold clinical and dispassionate. Just take a look at a legal glossary. Legalese is comparable to the language of computer techs. It's sterile Statutes are not flowery. They are not written to convince and persuade. Court opinions are coldly logical. There is no poetry there. There are no linguistic flourishes in contracts. There is no sentiment in secured transactions. From the day we hit law school, we are taught to take the passion out of our factual and legal analysis. Laws are written in stone, not blood. Often, we fashion our approach to law on the people who teach us law. I once heard law professors described by famed Wyoming trial lawyer Gerald Spence (probably the only lawyer in the U.S. who can get away with wearing a fringed buckskin jacket to court) as the "morticians of the legal.profession." Yet, for most of us, it's our law school professors (Of which, I am one.) that become our first models of what a lawyer is and how a lawyer acts and speaks. After law school, it takes a while for us to regain our humanity. We need that humanity to be communicators and persuaders of attitudes and action in the courtroom.

All of this is not to say that logic cannot be moving. Logic, typically in the form of inductive reasoning, is probably the most persuasive aspect of jury argument. Being logical means you leave out the "f"- words - those that are fuzzy, foamy, fizzy, frothy, and/or fluffy froufrou. But you have to speak to your jurors hearts also. You have to use words that we don't use in briefing a case or writing a motion. Eloquent words alone won't win the case. You can't be eloquent about nothing. There has to be substance, but eloquent, descriptive word choice can enrich the substance of the thought you are trying to convey. Always be on the lookout for the useful phrases, not cliches or froth or fluff or filler, but clarifying phrases in gripping language the jurors will understand. Read, read, read. Let the good stuff sink into your jury argument. Take a look at the Jury Argument in Criminal Cases book with thousands of sample jury arguments off which the would be advocate can feed, but never try to simply assemble an argument from spare parts. You have to write it for the ear, edit it, and rehearse it. Else it will have the eloquence of a whoopee cushion.

Jury argument is for the ear of the jurors, not the eye. So, your style and choice of words must be for the spoken word, not the printed word. We usually talk in a manner different from how we write. The goal with jury argument is to improve the effectiveness of your oral communication. When we write our argument we are speechwriters not novelists. For more about words, see Delivery of Jury Argument. As a caveat to this discussion of word choice, remember that even the choicest words lose their power if you are trying to use them to force jurors to your will. The emotional and ethical context in which the words are spoken is of vital import. Jurors will hear you only when you are drawing them to you with a trustworthy, direct, and sincere persona that has been on display throughout the trial.

The "cartoon method" of organizing your case into mental images. The French philosopher Blaise Pascal said, "Eloquence is a painting of thoughts." Word choice is an important means to an end, but words are merely tools that use to create mental images. The bigger question is: What images do you want to paint with your words? I suggest the "cartoon method." Before the trial begins, visualize your case as a four or five panel cartoon. If you were limited to drawing the story of your case in four or five cartoon panels, what would those four or five pictures be? If you were allowed to add a little dialogue, what words would be in the bubble above each of the people in each panel, i.e., what would each person be saying?

Try the cartoon method. When you've finished with your cartoon, you've got a good guide to the word pictures that you are going to paint for your jurors. You spend most of your time in opening, direct, cross, and argument verbally drawing, coloring, and dialoging the pictures in those four or five cartoon panels. Jury argument is the time when you energetically put each of the panels before the jury and sort out the meaning of the whole by pulling them together in storybook form.

Transitions. When you want to smoothly change topics in your argument, you do it with transitions. A transition is the way you prepare the jurors to switch their thought processes from one subject to another. You can herald the transition explicitly by saying something like, "Let's switch gears and talk about (state the new topic or subject)." Another way of changing topics is to ask a question that introduces the new topic by putting it in the form of an unsettled issue? For example, when you are to talk about cause of death in a criminal homicide, you introduce the topic by asking, "What was the cause of V's death?" If motive is the new topic, your transition might be, "What motive did D have to kill V?" If there is a hole in the opposition's case and you want to talk about it, you might use a declarative statement, followed by a question, and say, "There's a gaping hole in the prosecution's case that I'd like to discuss. What is that gaping hole?" Of course, you must follow the transition question with a clear answer to it. Your answer to the transition question and your argument as to the meaning of the answer completes the process. Another subtle method of changing topics is to use a linking word or phrase that allows you to link the end or conclusion of one topic to the beginning of the discussion of the next topic. The change of subject is accomplished by linking the same word or phrase to the two different topics, e.g., "It's clear that (insert a phrase using the linking word or phrase, e.g., the cause (old topic) of V's death (linking phrase) was a gunshot wound.) Speaking of (insert the linking word or phrase, e.g., V's death), I would like to discuss (insert the new topic that is relevant to the linking word, e.g., the time (new topic) of V's death (linking phrase)."

Practice means rehearsal. When it comes to jury argument, I don't think that a trial lawyer has to be an actor or a preacher, but, like the other two professions, the trial lawyer is a performer. The trial lawyer stands in front of an audience and by word-of-mouth tries to convince the jury and persuade it to take a certain action, i.e., convict, acquit , or agree not to decide. Professional actors study drama for years and rehearse for weeks just to learn the the ways they can get an audience to suspend disbelief while they deliver a few pages of dialogue from a script that's been written by someone else. When actors fumble, the supporting cast is there to help them recover. Preachers spend years in divinity school and further years as associate pastors learning how to use words in prepared sermons to arrest the attention of the congregation and inspire it to faith.

In my experience, law school teaches you little-to-nothing about how to convince, persuade, and inspire jurors to action. Our job of persuasion is just as demanding as the actor's or preacher's. Yet, we receive very little formal training for trial lawyering. If you want to deliver persuasive arguments, you'll have to train yourself. You can't dream yourself into a persuader; you must hammer and forge yourself into one. It's hard work. It's easy to get by with mediocre argument skills because many of the other lawyers you'll face in court are content with mediocrity. Most lawyers don't spend much time trying to polish their ability to shape opinion. Too many defenders and prosecutors say the words of their jury argument for the first time when they stand in front of the jury to deliver the argument. If you've tried shooting from the lip, you know that it's like trying to tie your shoelaces while you are walking. To those lawyers who are content just to sling schlock, the "rehearsal" takes place while driving to the courthouse on the morning of argument. Their effort amounts to little more than pondering about what one is going to say to the jury. The result is akin to an "impromptu," ie., improvised, spur-of-the- moment, uttered without previous preparation, speech, Mulling over what you are planning to say to the jury is entirely different from actually saying the words out loud in a rehearsal. To improve your craft, you've got to be willing to get up on your feet and practice speaking in a way that will motivate jurors to the action you desire. You are shooting for what is called an "extemporaneous" speech, i.e., one that is carefully prepared but delivered without notes or text. If you skip the rehearsal, you are broadcasting, in no uncertain words, that you don't like the show.

Putting it all together - Memorizing the thought, not the words with the CCJA Eight-Step Practice Program. As the old bromide goes, "Practice won't make you perfect, but it will make you better!" You've got to practice your jury argument before you give it. You have to be able to say what you have written. What you've written may charm the birds from the trees, but if the words don't make it past your voice box, you're sunk. I suggest an eight-step program as the best way to find out if your written argument will have wings in the courtroom. The process is grueling, but the results justify the effort. Follow these eight steps in your composition-rehearsal process, and I guarantee the difference between your argument at the first stage and the eighth will be comparable to the difference between cat urine and champagne.

Here are the eight steps: First, compose your argument on paper. That means write it out. Write it the way you speak, not the way you write. You'll be talking to the jurors, and they will be listening. They won't be reading what you've written. So write for the ear, not the eye. To get started, apply the seat of your pants to the seat of a chair facing a legal pad or a computer screen. [If you are not a good writer, try to be a better one (1).] Second, read your write-out aloud once into a tape recorder. Third, listen to the tape recording of your first read-out. What you wrote the first time won't sound quite right. Fourth, you'll need to edit the write-out after you've listened to the tape-recording. When you edit the write-out, write marginal notes indicating in one word the emotion you want to convey with each particular portion of the argument. Eliminate tongue twisters. Use a slash (/) as a cue to pause. Look for action nouns and verbs and highlight those that you want to emphasize. Always consider whether you have failed to include something essential, e.g., arguments that shore up your case where it is most vulnerable to attack by the opposition. Fifth, read the edited write-out again out loud. If it sounds like you edited it with a meat axe, repeat steps four and five. Sixth, reduce the edited write-out of your argument to a topical key-word outline that will fit on a 3x5 card. This is easy to do; just go through the edited write-out with a yellow marker, and underline the key words. Put those key words on the 3X5 index card. Seventh, rehearse the jury argument once, using the 3x5 card key-word outline as a crutch, but choosing your own words without feeling bound to the exact words in your write-out or even trying to remember them; in the process, you're memorizing thoughts, not words. Eighth, set the 3x5 card aside, and give the argument extemporaneously without notes once or twice, more if your mouth feels like its full of putty. Don't rehearse more than a total of four or five times. You don't want to lose your spontaneity. If you have a video camera, videotape your extemporaneous rehearsal(s). I tell my students to eschew the use of a mirror because it's guaranteed to make you too self-conscious of your outter looks; you want to be thinking of your message as you deliver it, not noticing how pretty that new dental work looks in the mirror. That comes when you look at the video after the fact. You do want to be conscious of yourself as you rehearse; see yourself, listen to yourself, learn how you appear to others - just not with the mirror. It's fine to rehearse by yourself, so long as you visualize your jurors and pretend you are talking to them. If you have the guts to rehearse in front of others, try to do it before ordinary folks, not other lawyers, unless those lawyers " think like jurors and not lawyers."

Try this Eight Step Practice Program approach in your next few trials; if it doesn't sell itself, then go back to your old way of getting ready or not getting ready for jury argument. [Note: You may ask, "How long will Moses' Eight Step Program take? You won't like the answer, but her it is: Two hours of working on what you're gonna say, how you're gonna say it, and practicing saying it for every five minutes of actual jury argument (or opening statement). Yes, that equals twenty-four hours of getting ready for a one hour jury argument, six hours for a fifteen minute jury argument, two hours for a five minute jury argument. That's what it takes if you really want to shine!]

And again, you are not trying to memorize your entire argument. You want to be able to deliver the beginning and ending on command, but the middle is extemporaneous. That means you learn the words of your beginnng and ending by heart, but, as for the middle portions, you choose those words while delivering the middle. Even tough you don't memorize the words of the middle, with the Eight Step Practice Program you will wind up memorizing the thoughts by heart.

Get some feedback. Integrate feedback and critique into your practice and rehearsal sessions.

You know your audience or do you? If you refine your argument and rehearse it after the jury has been selected, you have the benefit of knowing precisely who your audience is. You even know who will be sitting in which chair when you stand to argue your case. In jurisdictions with liberal voir dire practices, you have probably talked to each member of this small, select audience. Using your peremptory challenges at voir dire, you have played a major role in excluding people from your jury. You've spent time talking to your jurors during your opening statement. You've observed them during the presentation of evidence. So, as you rehearse, it's not going to be a stretch for you to visualize the persona of each of your jurors and pretend that you are speaking face-to-face with each of them. Picture each juror. Think about the personal data you have on each. Which ones have spent a considerable portion of their time reading newspapers, novels, and magazines? Which ones can barely read a menu? Which ones watch intelligent and articulate people discuss critical issues on television? Which ones only watch Saturday morning cartoons? Considerations such as these may influence your phrasing choices from among the mosaic of verbiage available to you. Dress rehearsal with your jurors in mind is much more productive than arguing to yourself in a mirror, something that you might do for self-analysis, but not when you are trying to simulate persuasive communication with the actual decision-makers.

When I say that you know your audience, I mean that you know as much about each juror as you've been able to learn or surmise from the information you've accumulated. Certainly there are variables in each juror's life that will remain hidden to you, e.g., a spouse dying of terminal illness, a painful hemorrhoid, a pending contentious divorce, a mountain of pending work that has to be tackled after the trial, a wayward child, a passionate love that beckons, a pending marriage, a long awaited cruise, and other worries and joys ad infinitum. A myriad of unknown distractions will influence each juror's reaction to you and compete with your argument for the juror's attention. They say a tree falls the way it leans. Hopefully, at this point in the case you have done everything you can to fill the box with jurors who are leaning your way.

Jurors are judges without robes who owe you nothing you do not earn. Jurors are not a disinterested audience. They are not players on the field, as the lawyers and witnesses are. They are silent judges who sit and score the contest. They sit ringside, but they don't judge by rounds.There are no scorecards, just a verdict form signed by only one of their number. Jurors are not trained in the rules of the contest; rarely will a legally trained person survive the peremptory challenge phase of voir dire. Most of the jurors have not experienced a trial as an accused or complainant. Yet, they are an audience has all the power. Jurors are not critics; jurors are show-stoppers. Their word is truly the law. So, look beyond your nose. You must adjust your words to the jurors' thinking. Don't expect them to adjust their thinking to your message.They owe you nothing, other than a good faith effort to reach a decision. You owe them your all. You can't afford to fence these people out. If you engage in misconduct, e.g., misstate evidence, you will be punished by the jury. You are seeking a positive response from them to all that you say in argument. You must be capable of reinforcing and, perhaps, altering the dispositional leanings of your jurors. You must provide those who are leaning your way with good arguments for the deliberation room. There's nothing a juror likes less than bad arguments for the side s/he favors. The nature of the trial process motivates the jury to react to the arguments of counsel. The only question is: How will they react? The answer to this question will depend on the stuff of which the jurors are made, the nature and quality of the evidence, and your personal power of persuasion.

Don't let self-consciousness get in the way of communication. Self-criticism can stand between us and the message we want to deliver. We can't let self-consciousness interfere with the connection that we have to make with our jury. So, you think you have the charisma of a forklift. So, you think you've bitten off more than you can chew. Once you stand up to argue, chuck the self-doubt. Persuasive communication occurs only if you forget about yourself and start caring about the needs of the jurors. After all, what is the worst that can happen to you in jury argument. Chances are that your tongue will not cleave to the roof of your mouth. Prior preparation is not guaranteed to eliminate the natural butterflies that we all feel when speaking to a group, but preparation will allow you to organize your butterflies so they fly in formation. If you have prepared in the way we have suggested, you can transform those nervous feelings of anxiety into persuasive energy.

You've got to engage the jurors in your theory of the case. Engagement and communication won't occur if your jurors see themselves as voyeurs, peeking through the keyhole and eavesdropping on a dramatic event to which they are not connected. Engagement won't happen if you fawn, i.e., try to jump into the jury box and snuggle up next to the jurors, or exert pressure, i.e., try to shoehorn their thoughts. Engagement won't happen if you try to anoint the jurors with butter and syrup. The answer lies in your communicative skill. Your message and your delivery must subtly draw these decision-makers into your argument, but you also have to get into their world. This happens when you put self-doubt aside and concentrate on communicating with each individual juror. You want your argument to be a conversation, of necessity one-sided, where the jurors are silent participants. Think about the questions the jurors would ask you if they could talk back during your argument. Respond to those questions, and they will come to you. In the process, you will take one giant leap toward engaging and influencing the thought processes of this all-powerful group.

[ It will help immeasurably if you keep in mind that none of us is here for a long time. We're here for a good time! So, learn to enjoy being a participant in one of the most interesting and dramatic professions on the face of the planet - criminal trial advocate. The only comparable job - ringmaster at the circus. If you have trouble wholeheartedly buying into the role of trial advocate, think "night manager of a Dairy Queen."]

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PLANNING, PREPARING, AND

WRITING A JURY ARGUMENT

from JACC & The Last Word