McElhaney on Litigation
Don’t Tell the Judge and Jury What to Think Use Your Closing to Give Them What They Need to Make Up Their Own Minds
Posted Mar 1, 2004 2:47 AM CDT
By James W. McElhaney
Angus was giving a talk on final argument for the winter meeting of the bar association, and I was sitting in the back of the room taking notes. Angus told me not to bother. “There’s nothing new here, Jimmy,” he said. “These are just some of my favorites that I’ve picked up over the years from other lawyers. I like them because they solve problems.”
That settled it for me. I wasn’t going to miss a chance to get Angus’ favorite arguments, so I brought along my tape recorder, as well as two pens and a fresh legal pad.
He started out saying, “I want to give you two rules before I demonstrate some of my favorite arguments. All of which, by the way, are fragments--bits and pieces from a wide variety of cases.
“The first rule takes real self-discipline to follow because it seems counterintuitive.
“Don’t argue. It’s the paradox of persuasion, one of the most important rules of advocacy. The more you argue--the harder you push--the more the judge and jury resist what you say.
“Why? Because no one likes to be told how to think. People like their own ideas. Your job is to be a guide. To show, not tell. Use your closing to give the fact finders what they need--the right stories and pictures to help them make up their own minds the right way.
“Second, don’t waste your time summing up, trying to recapitulate the entire trial. Collectively, the jury remembers the evidence better than you do. Besides, they’re more likely to remember what the witnesses actually said, while you often remember what they should have said--a difference that can cause you real trouble.
“Instead of trying to compress a week or 10 days into 30 minutes, concentrate on solving problems. Any case worth trying has plenty.”
Then he began. Here are my notes.
‘I Could Have Objected Right Then’
--Mike Schmidt, Dallas
The most common objection during final argument is, “Objection, your honor, counsel is misstating the evidence.” But because the judge doesn’t remember what the evidence actually was and probably didn’t even hear the supposed misstatement anyway--because he was reading correspondence, signing orders or gathering imaginary rosebuds--the objection is almost never sustained.
Instead, the ruling is the only one the judge can give without looking foolish or risking error: “The jury will be the judge of the facts.”
Which actually isn’t even a ruling. It’s just a comment. Nevertheless, in effect it shoots down the objection, and the lawyer who made it pays the price in lost goodwill with the jury for interrupting the other lawyer when it’s his turn to talk.
Which is why Mike Schmidt doesn’t bother to make the objection in the first place. Instead, he bides his time until it’s his turn to talk.
“Remember when lawyer Thompson told you the defendant’s car was going 80 miles per hour at the time of the accident? There wasn’t one bit of evidence that said our car was going that fast. The bystanders said 45 to 50--right at the speed limit.
“The state trooper who measured the skid marks estimated it was going under 50. The driver of the car behind the defendant said 45, and Billy Reynolds, the defendant, said he was going between 45 and 50 because that’s where he set his cruise control.
“So when lawyer Thompson said our car was going 80 miles per hour, the law would have let me jump up right then and interrupt him for misstating the evidence.
“But I didn’t want to do that, and I’ll tell you why. I wanted to find out just how far lawyer Thompson thought you had to go to find in his favor. And I found out. He needs you to speed up our car 30 miles per hour.”
--The late Weymouth Kirkland, Chicago
How do you argue that a key witness’s testimony is absurd? Reasoned analysis? Fiery rhetoric? Sarcasm and disdain? When you’re representing an unpopular client, how you do it can make all the difference.
It was the1930s, in the depths of the Great Depression. Weymouth Kirkland--one of the founders of Kirkland & Ellis--was defending an insurance company that had refused to pay on the life insurance policy of a sailor named Peck.
Peck had bought the policy and paid the premiums on it for several months before he was supposedly washed overboard from a freighter on Lake Michigan. Peck had no family, so his beneficiaries were other sailors on Lake Michigan.
The situation had a bad odor to it so the insurance company didn’t accept the claim that Peck was lost overboard. “Prove your case,” it said.
The heart of the plaintiffs’ case began with an expert witness--an oceanographer and meteorologist from a local college--who had studied the swirling winds and currents on Lake Michigan for years. He testified that if Peck had fallen overboard when and where the other witnesses said, his body would have floated to another point in Lake Michigan at a precise moment in time.
Then they called their next witness--an old friend of Peck’s who worked as a cook on another boat on Lake Michigan and was not one of Peck’s beneficiaries. The cook testified that he was in the galley, peeling potatoes for dinner, when at exactly the right time he happened to look out the porthole, and there was Peck, floating by.
Kirkland cross-examined the cook.
Q. You were an old friend of Peck’s?
A. That’s right.
Q. Known him for years?
A. Yes. We used to play cards or go out for a beer when we were on shore. Sometimes see a movie. We were good friends.
Q. So when you saw that body in Lake Michigan, there was no doubt in your mind. It was Peck?
A. That’s right.
Q. Tell us, what were you doing when you happened to look out the porthole? A. I was peeling potatoes.
Q. I see, you were peeling potatoes when you just happened to look out the porthole, and there was Peck?
A. That’s right.
Q. Did you tell the captain that you saw Peck floating by in Lake Michigan? A. I certainly did.
Q. Tell the ladies and gentlemen of the jury when you told the captain you saw Peck. A. Well, ah, it was the next day.
The significance of that was not lost on the Chicago jury. It’s only 80 miles across Lake Michigan, and by the next day the boat would be in port and the cook would have plenty of opportunity to talk to Peck’s other friends and invent a story about having seen him floating in Lake Michigan.
So how did Weymouth Kirkland go after the cook in final argument? Attack him with analysis? Slice him up with sarcasm? Rip him apart with rhetoric? None of those.
Kirkland put a chair and a wastebasket in front of the jury. He took a potato out of one pocket and a peeler out of the other. Then with one foot on the chair, he started whistling a tune and peeling his potato.
When he happened to glance off to the side, he stopped peeling. He looked out of an imaginary porthole and said, “What ho! What do we have here? Why if that isn’t my old friend Peck! I’ve got to tell the captain about that tomorrow. Meantime, I’d better peel my potatoes.”
Everybody laughed. School was out.
“Wait a minute,” you say. “That’s clever and entertaining, but I don’t have many cases where I can peel a potato in final argument.”
That wasn’t a clever bit of play-acting. It was a carefully thought out demonstration of what obviously never happened.
The point is, the opportunity to use Kirkland’s idea keeps coming up in all kinds of cases. You can read a fictitious newspaper advertisement, carry on an imaginary telephone conversation or create an exchange of business memoranda that were clearly never sent. Demonstrating what never happened is far more powerful than just saying it.
‘I’d Be Remiss If I Didn’t Talk About Damages’
--Ed Stein, Ann Arbor, Mich.
A problem for a defense lawyer who really attacks the plaintiff’s liability case is whether to talk about damages in final argument.
The liability argument tells the jury, “There’s no way you could possibly find for the plaintiff.” But then, turning to the subject of damages, it says, “But if you somehow do decide for the plaintiff, please keep your verdict down.”
It’s an implied admission that you really don’t trust your liability defense.
On the other hand, if you don’t talk about damages, when the jurors do find liability it leaves them with only the plaintiff’s figures to guide the amount of their verdict. That was part of the reason the jury returned a $10.3 billion verdict in Pennzoil v.Texaco.
Ed Stein has an elegantly simple way of getting around this problem. At the end of his argument on liability he says, “At this point, I would normally have nothing more to say, because we’ve talked about the reasons why what happened to the plaintiff is not the defendant’s fault. But because Ms. Reynolds has spent so much time talking about damages and has said some remarkable things I would be remiss if I didn’t talk about that part of her case as well.”
Instead of admitting weakness, it says there’s even more that’s wrong with her case.
--John Burgess, San Francisco
How do you attack an opposing witness whom you have caught in an outright lie when you were unable to shake anything else he said?
The principle is an--old one falsus in uno est falsus in omnibus--false in one thing is false in everything. And you can often get an instruction that says if jurors find a witness was deliberately false in testifying about one material issue, they are justified in disregarding the rest of his testimony as well.
That sounds powerful to lawyers, but it often doesn’t have a strong appeal to jurors. They may be just as likely to believe that you caught the witness in the only lie he told and the rest of what he said is probably true.
How do you prevent that reaction? Here is how John Burgess does it:
“You’ve got a problem with the testimony of Gwendolyn Ross. She lied to you and got caught. Now, I know you won’t have any trouble with that. The question is what do you do with the rest of her testimony? Accept it? Reject it? Or what?
“You know, ever since Mom passed away, every Sunday afternoon my family and I take Dad out for Sunday supper.
“Dad’s favorite dish is beef stew. He loves it. Mom used to fix it for him. Wherever we take him, if the restaurant has beef stew on the menu, he orders it.
“A few weeks ago we went to a new restaurant outside of town--it was called Country Inn. It was one of these places that has a menu board behind a glass door, mounted on a post in front of the restaurant.
“When I saw they had “Grandma’s Beef Stew” on that menu, I didn’t tell Dad, but I made a bet with myself: That’s what he’ll order.
“He almost fooled me. Looking over at the next table he saw that someone had ordered swordfish and said, ‘That swordfish steak looks wonderful.’ But when the waiter took his order, Dad said, ‘Well, I guess I’ll try your beef stew.’
“The waiter brought out the most delicious looking plate of stew you have ever seen. Big pieces of beef, nice slices of carrot, new potatoes, whole little onions and rich brown gravy. Smelled wonderful.
“But when Dad took his first bite he said, ‘I can’t eat this. The meat’s rancid. It’s been left out too long.”
“Now what was he supposed to do with that stew? Pick through it until he found something good? Or say, ‘Here, take this back. I’m going to order something else’? “What are you entitled to do with the testimony of Gwendolyn Ross?”
John doesn’t tell the jurors that they’re more entitled to honest testimony than his father is to a good plate of stew. He wants that to be their idea.
The Cabbages and the Goat
--The late Irving Younger, Minneapolis
When the late Bob Hanley represented MCI in its antitrust case against AT&T, he was faced with a continuous barrage of different legal theories and arguments from the defense.
Hanley’s approach was simple. He had one basic legal theory and took no more depositions than necessary. AT&T, on the other hand, was in no hurry to get to trial. The company took more than 600 depositions besides making continuous saturation-bombing raids with its pretrial motions.
At trial the defense concentrated on muddying the water with all its different legal theories, and Hanley wanted to finish flushing them out of the case with his final argument.
The Sunday afternoon before argument, Bob recalled a story he had heard Irving Younger tell at a program in Boulder, Colo., sponsored by the National Institute for Trial Advocacy. So Hanley got on the phone and finally located Irving in Minneapolis, about to sit down to dinner with a dozen guests. An hour and a half later, Irving joined his wife, Judith, and their guests for dessert and Hanley had his argument.
The next day he said, “Have you seen the way AT&T has defended this case? First they have one argument, then another. If you don’t like those, they have a third and a fourth. And that’s just the start. They have more arguments and defenses and excuses than you can possibly keep track of.
“And you know what? There’s no rule against that. The rules of procedure actually say you can have as many different theories as you like--and they don’t even have to be consistent or make sense. I think we can agree they certainly have taken full advantage of that rule.
“It’s like they tell you in law school. Take the simplest case you can imagine. A farmer has a patch of cabbages. His neighbor has a goat. The goat breaks loose, gets in the cabbage patch and eats all the cabbages.
“The farmer brings a lawsuit against his neighbor. He says, ‘I had a patch of cabbages worth $100. Your goat ate my cabbages. Give me my $100.’ “And if he was represented by these lawyers for AT&T,” said Hanley, pointing at the defense table, “what would the owner of the goat say?
“You had no cabbages.
“If you had any cabbages, they were not eaten.
“If your cabbages were eaten, it was not by a goat.
“If your cabbages were eaten by a goat, it wasn’t my goat.
“And if it was my goat, he was insane!”
Everyone laughed except the defense, and the jury returned a verdict of $1.8 billion.
--The late Craig Spangenberg, Cleveland
The pre-existing injury is a serious problem for any plaintiffs lawyer. Few things are more devastating than finding out in the middle of trial that your client has injured her lower back twice before. Which is why it’s important to do a thorough background check on your own client. You would much rather know about the other injuries ahead of time so you can bring them out yourself.
But bringing them out yourself doesn’t solve every problem. The jury may still wonder whether you’re asking the defendant to pay for something that was caused, at least in part, by someone else.
That’s why Craig Spangenberg developed this marvelous line of argument--a running analogy--for which he became famous.
“We come to the subject of damages, and it’s a difficult area of decision. Oh, I wish this were a simpler case like a farmer driving his pickup truck on a country road when someone speeds through the stop sign, runs into his truck and turns it over.
“The farmer’s not hurt, but his truck is. One side’s all dented in, the windshield is broken out and a fender is torn off. And if you as a jury were asked, ‘What’s fair compensation for what the driver of the car did to the farmer’s truck?’ you wouldn’t have any problem with that.
“You’d give him the kind of truck he had. You wouldn’t give him a new truck, because he didn’t have one. But he shouldn’t have to drive a truck that’s all bent up and missing a windshield, because he didn’t have that, either. So fair compensation--just compensation--would be to pay him what it would cost to fix the truck he has. And I’m sure that my friend for the defense would accept that.
“Well, now suppose that the plaintiff is a poultry farmer and he has the back of his truck filled with eggs, three-hundred dozen grade A eggs, all carefully boxed and crated. And the defendant speeds through the stop sign, just like he did in this case. As a result you have three-hundred dozen grade A whites and yolks running all over the pavement. “What is fair compensation? Those are his eggs. They were marketable. His property has been taken away. His income has been taken away.
“What is fair compensation? Ninety-six cents a dozen retail?
“No. He wasn’t going to sell them retail. He was going to sell them wholesale, and the wholesale price reported in the newspaper was forty-seven cents a dozen. So he’s entitled to forty-seven cents times three hundred. One hundred and forty-one dollars. “Now, in this situation, wouldn’t you think the defense lawyer had taken leave of his senses if he told you, ‘Don’t you pay him a hundred and forty-one dollars for those eggs! Why, if they’d been golf balls, not one would be broken.’
“I’m not telling you Mike Wilson was an egg, but he was like an egg. He was fragile. But he was still useful and marketable. He was able to sell what strength he had in the marketplace of labor.
“But he certainly was not a golf ball, and when the defendant sped through the stop sign and hit Mike Wilson, he did not bounce.
“And fair compensation is to restore the loss that has actually been inflicted on the actual man or woman. Just like when you break an actual egg, fair compensation is paying the actual value.”
The Cat and the Mouse
Peter de Manio, Sarasota, Fla.
One of the most difficult jobs for the defense is arguing proof beyond a reasonable doubt in a criminal case without sending the unintended message that the defendant may well be guilty but the prosecution hasn’t quite proven it.
Listen to Peter de Manio tell the jury about the holes in the prosecution’s case.
“Is it possible to prove that someone is guilty of a crime--guilty beyond a reasonable doubt--with nothing more than circumstantial evidence? With no eyewitness testimony? “Certainly. Take the simplest situation you can imagine. You have a cat and a mouse and a big cardboard box. First you put the cat in the box. Then you put the mouse in the box with the cat. Then you put the lid on the box and tie it tight with a string so neither one can get out.
“Leave the room for half an hour. Come back into the room. Untie the string, take off the lid and look inside.
“There is the cat, but no mouse.
“Do you know what happened? You didn’t see. There were no eyewitnesses. But you know beyond a reasonable doubt what happened to that mouse. “Now let’s do that again. Put the cat in the box. Put the mouse in the box with the cat. Put on the lid. Tie it up tight. Leave the room and come back a half hour later. Untie the string, take off the lid.
“There is the cat, but no mouse.
“But look. This time there’s a round, raggedy hole in the lower corner of the box. Mouse-sized hole. Do you know what that hole is? It’s a reasonable doubt.
“Now let’s take a look at the holes in the prosecution’s case.” Then Peter writes a word or two on the board for each problem, inconsistency or omission in the prosecution’s case. He draws a circle around each one as he finishes talking about it. By the time he’s done, the board is covered with holes.
‘This is My Last Time to Talk’
“After I sit down, Mr. Donaldson is going to get another chance to talk to you. He will have an opportunity to say things--because of the rules of procedure--that I will not be allowed to answer. But you know all the facts in this case, and you know that I would respond to Mr. Donaldson if the rules let me.
“So I want to ask you to do something very important. Listen closely to everything Mr. Donaldson says. Then when you go back to the deliberation room, ask yourselves, ‘How would I have responded if I had the chance?’ “If you do that, I know you will be fair.”
Professor James McElhaney has written several classic volumes on litigation strategies, including McElhaney’s Deposition Notebook and McElhaney’s Litigation. To purchase these and other books and CLE products featuring Professor McElhaney, visit the Section of Litigation bookstore at www.abanet.org/litigation/pubs/.
James W. McElhaney is the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland and the Fred Parks Distinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston. He is a senior editor and columnist for Litigation, the journal of the ABA Section of Litigation.