McElhaney on Litigation

The Arsenal of Persuasion


Illustration by John Schmelzer

Last night’s bar association program with Angus and Judge Standwell was on final argument, and the room was packed. I didn’t even see that Professor Warbler was there, with several copies of his book, Killer Kross, until the judge asked me to open a few of the windows in the back of the room to let in more air.

Well before the program began, six or seven lawyers —including leading members of the local bar—gave Angus printed copies of final arguments they were planning to give in upcoming cases, asking for his thoughts and suggestions.

At 7:30 p.m. Angus stood up and said, “It’s Judge Standwell’s turn to begin this evening, but he asked me to surprise him with the first topic. So here it is: Judge, what is the worst mistake you see lawyers make in final argument?”

“The worst mistake is also the most common,” said the judge. “Writing out your argument in advance and then reading it to the judge and jury.” Out of the corner of my eye I saw the president of the city bar association sink several inches lower in his seat.

“What’s wrong with that?” said Angus.

“First, unless you’re a professional script writer, you don’t write the way you talk,” Standwell said. “As badly as we speak, most of us write a lot worse. We use unforgivably big words, working them into compound and complex sentences.

“We ought to have a simple-speaking rule: one idea per sentence, with no un­necessary adjectives or adverbs. That’s something you don’t find in almost anything a lawyer writes.

“Second, when you’re reading to the judge and jury, you’re not looking at who you’re talking to. Not only is that rude—you can’t tell how you’re coming across.

“Third, your pace and emphasis will be all wrong because they’re built into what you wrote. And you’re not responding to how your listeners are reacting to you and what you say. Besides, if you’re speaking second, what you’re reading probably won’t have much to do with what your opponent just said.”

“So what are you telling these lawyers,” said Angus, “to memorize everything they say?”

Judge Standwell laughed. “If anything, that would be worse,” he said. “Instead, learn how to work extemporaneously with only a few pages of written notes. What that lacks in verbal polish will be more than made up for with simple sincerity.”

CABBAGES AND INSANE GOATS

“And now,” the judge said to Angus, “it’s your turn. What do you do in final argument—summarize what your witnesses said and then tell the judge and jury it means your client wins?”

“That’s what altogether too many lawyers try to do,” Angus said. “But summing up doesn’t help much except in cases that have taken too long. Then it may be necessary. In cases that only take three or four days to try, the jury remembers the testimony as well as you do—maybe better. After all, your mind is still cluttered with what the witnesses were supposed to have said. But the jurors only know what they heard.

“So there’s a better answer to your question besides sterile recapitulation and dry logic. It’s to tell a story.

“People don’t make their decisions with syllogisms and rational progressions of principle. Stories—not rules —are what really influence our thinking.

“Since the dawn of time, we have used stories to teach, explain, understand how the world works, memorialize events and instill moral values.

“Lloyd Paul Stryker said in his 1954 classic, The Art of Advocacy, ‘No point is ever better made when not directly made at all, but is so present­ed that the jury itself makes it. Men pride themselves on their own discoveries, and so a point which the jury are allowed to think their own ingenuity has discovered can put the advocate in a position where the jury begin to regard him not only as their spokesman, but their colleague.’ ”

“But how do you guide the jurors with your argument so they think their conclusion is their own idea?” said Judge Standwell.

“With stories,” said Angus.

“Thirty years ago, the late Craig Spangenberg of Cleveland said, ‘The greatest weapon in the arsenal of persuasion is the analogy, the story, the apt comparison to something the jurors know from their own experience to be true.’

“When the late Bob Hanley of Chicago was lead coun­sel for the plaintiff, MCI, in its antitrust case against AT&T in the 1980s, the defense tried to create the impression of an impregnable wall of multiple defenses. And Hanley realized he would be falling into the defendant’s trap if he tried to answer all of AT&T’s defenses.

“So the night before final argument, Hanley tracked down Irving Younger, the great trial techniques expert, who was then in Minneapolis, to make sure he had a story right.

“The next day, Hanley said to the jury, ‘Have you seen the way AT&T has defended this case? They have more arguments than you can shake a stick at. Take the easiest case you can imagine. Say a farmer has a patch of cabbages, and his neighbor has a goat. The goat breaks loose and literally destroys all the cabbages.

“So the farmer brings a lawsuit against the owner of the goat, saying, ‘I had a patch of cabbages worth a hundred dollars. Your goat ate my cabbages. Pay me my hundred dollars.’

“And if represented by these lawyers for AT&T, 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!’ ”

“The jury laughed to the tune of $1.8 billion,” said Angus. “And now it’s your turn again, judge.”

A FATHER’S LESSON

“when I was in law school,” said Standwell, “some of us went down to Sarasota, Fla., for spring break. While we were there, the newspapers were covering a big criminal trial, and some of us decided to go and watch final arguments. During his summa­tion, the prosecutor not only talked about his case, he also attacked the defense for offering nothing more than ‘circumstantial evidence.’

“When the defense lawyer stood up he said, ‘Noth­ing but circumstantial evidence, huh? When I was a boy, my father read Robinson Crusoe to me. I remember when Crusoe was all alone on a desert island, and one morning when he went to the shore, he saw a footprint in the sand—and he knew it wasn’t his. The effect was so pow­erful that Crusoe fainted dead away, only to awaken to find the man he called Friday standing over him.

“ ‘Circumstantial evidence is everywhere. We rely on it all the time. If you’re out walking in the woods on a Saturday morning and find a turtle up on a tree stump, you know he didn’t get there himself.

“ ‘Remember how one of the prosecutor’s witnesses said some things that turned out to be totally untrue? And do you recall how unhappy the prosecutor got with me when I used the “L-word” in cross-examining that witness? Well, there’s another word that may be even more appropriate.

“ ‘It was used in Tennessee Williams’ famous play, Cat on a Hot Tin Roof. In the movie version, Paul Newman played the unhappy son, Brick, and Burl Ives playing his dying father, Big Daddy.

“ ‘Early in the play, Brick asks Big Daddy if he’s ever heard the word mendacity.

“ ‘Ain’t it one of them $10 words that means lies and liars?’ says Big Daddy.

“ ‘And Brick says, “Yeah, Big Daddy, lies and liars.”

“Then the defense lawyer picked up his copy of Cat on a Hot Tin Roof, turned to a page he marked and said, ‘Everybody’s been lying to Big Daddy about his health and later on, Big Daddy, who’s been sleeping upstairs in the afternoon, wakes up during a storm, and starts walking down the stairs.

“ ‘Halfway down, Big Daddy stops, sniffs and says’—and the lawyer started reading from the script—“I detect the powerful and noxious odor of mendacity in this room!” ’

“Then the defense lawyer closed the book, tossed it on the table and sat down.”

For a change, Professor Warbler stayed to the end of the program, but I heard him mutter “humbug” as he walked out.


Jim McElhaney is the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland and the Joseph C. Hutcheson Dis­tinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston.


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