SIMILE—THE RIGHT WORDS FOR TRIAL LAWYERS—PART 3

Simile: A simile, like a metaphor, makes comparisons by using the words “like” or “as” to introduce the thing the subject is compared to. Like metaphors, similes also are powerful because they connect your case theory with something with which the jurors are familiar.

Here’s a collection of similes, some of them compiled by Paul Luvera, one of the nation’s leading trial lawyers:

Anonymous: Someone said he is like the rooster who thinks the sun comes up to hear him crow.

Frederic Rahael: Awards are like hemorrhoids; in the end, every asshole gets one.

Irving stone about William Jennings Bryan: His mind was like a soup dish, wide and shallow; it could hold a small amount of nearly everything, but the slightest jarring spilled the soup.

Muriel Spark: Being over seventy is like being engaged in a war. All our friends are going or gone and we survive amongst the dead and dying as on a battlefield.

Pope John 23^rd: Men are like wine; some turn to vinegar, but the best improve with age.

Thornton Wilder: I do borrow from other writers, shamelessly! I can only say in my defense, as the woman before the judge who was arrested for shoplifting and defended herself by saying: “I do steal, but your honor, only from the very best stores.”

Grenville Kleiser (1868-1953) in Fifteen Thousand Useful Phrases (New York and London: Funk & Wagnalls, 1917) listed Striking Similes in alphabetical order and you can visit it online here.

RULE OF THREE—THE RIGHT WORDS FOR TRIAL LAWYERS—PART 1

Successful trial lawyers know how to pick the right words to persuade. They use similes, metaphors, analogies, famous quotes, and the rule of three. We’re going to explore all of these, and we start with the rule of three.

Rule of Three: For a trial lawyer or for any public speaker, the application of the rule of three is a must. The pattern of three has an impact on the listener. The audience, the jury, will feel the triple phrases emotionally and retain it better. The rationale for the rule of three is that when things come in threes, they are more effective than when they come in any other number.

Think of all the great speeches and documents that incorporated the rule of three:

Joe Biden, June 2, 2020--“We are a nation in pain – we must not let our pain destroy us.

We are a nation enraged – but we cannot let our rage consume us.

We are a nation exhausted – but we will not allow our exhaustion to defeat us.”

Martin Luther King, Jr.’s I have a dream speech—"Free at last, Free at last, Thank God almighty we are free at last.”

Declaration of Independence—“Life, Liberty, and the pursuit of Happiness”

Abraham Lincoln’s Gettysburg Address—“We cannot dedicate—we cannot consecrate— we cannot hallow — this ground.”

Also, from Abraham Lincoln’s Gettysburg Address—“and that government of the people, by the people, for the people, shall not perish from the earth.”

Winston Churchill—"Never Never in the history of human endeavor has so much been owed by so many to so few.”

Winston Churchill—“I have nothing to offer but blood, sweat and tears.” Actually, on May 13, 1940, he said “blood, toil, tears and sweat," but is attributed with the other probably because it follows the rule of three.

Dale Carnegie—"Tell the audience what you're going to say, say it; then tell them what you've said."

Julius Caesar—“I came, I saw, I conquered.” Or in Latin, “Veni, vidi, vici.”  

Vincent Bugliosi’s concluding remarks in summation in the Charlie Manson murder  trial—“Under the law of this state and nation these defendants are entitled to have their day in court. They got that.

They are also entitled to have a fair trial by an impartial jury. They also got that.

Since they committed these seven senseless murders, the People of the state of California are entitled to a guilty verdict.”

WHY LAWYERS CAN BE LOUSY COMMUNICATORS

First, let’a examine how lawyers communicate in writing. Here’s how a lawyer wrote the sentence—“I give you an orange”:

I give you all and singular, my estate and interest, right, title, claim and advantage of and in that orange, with all its rind, skin, juice, pulp and pips, and all right and advantage therein, with full power to bite, cut, suck, and otherwise eat the same, or give the same away as fully and effectually as I the said A.B. am now entitled to bite, cut, suck, or otherwise eat the same orange, or give the same away, with or without its rind, skin, juice, pulp, and pips, anything hereinbefore, or hereinafter, or in any other deed, or deeds, instrument or instruments of what nature or kind soever, to the contrary in any wise, notwithstanding.

Actually, Englishman Arthur Symonds, in 1835, wrote this as a satiric piece spoofing how lawyers express themselves when they write.

Lawyers are professional communicators, who are paid to communicate with clients, opposing counsel, judges, juries and so on. However, lawyers can be lousy communicators. Here’s another example provided by Rudolf Flesch—legal definition of “ultimate consumer”:

Ultimate consumer means a person or group of persons, generally constituting a domestic household , who purchase eggs generally at the individual stores of retailers or purchase and receive deliveries of eggs at the place of abode of the individual or domestic household from producers or retail route sellers and who use such eggs for their consumption as food.”

Flesch points out that this should be translated into words that you would normally use in conversation, and “ultimate consumers” would be defined as follows: “Ultimate consumers are people who buy eggs to eat them.”[1]

Here are a few other examples of lousy writing contained in lawyers' pleadings and in and law student submissions:

•     “The decedent walked into the bar.” (dead man walking)

•        “He was shot and subsequently died?” (would he have died before he was shot?)

Then, we lawyers write words that are never used except in legal writing:

•      “Comes now”

•      “Wherefore”

•      “Notwithstanding the foregoing” (“but” would do);

•     “In the event of” (how about “if”?)

The famous cowboy sage and comedian Will Rogers put it this way: “The minute you read something you can’t understand, you can be sure it was drawn up by a lawyer.”

So much for written communication, let’s turn to lawyer verbal communication. Here are some excerpts from  actual transcripts from trials around the country. Here are some questions[2]: (I didn’t make these up)

o Lawyer: "When he went, had you gone and had she, if she wanted to and were able, for the time being excluding all the restraints on her not to go, gone also, would he have brought you, meaning you and she, with him to the station?"

o Other Lawyer: "Objection. That question should be taken out and shot."
______________________________________________________________

o Lawyer: "And lastly, Gary, all your responses must be oral. Ok? What school do you go to?"
o Child Witness: "Oral."
o Lawyer: "How old are you?"
o Witness: "Oral."

_____________________________________________________________

o Lawyer: "Did you tell your lawyer that your husband had offered you indignities?"
o Witness: "He didn't offer me nothing. He just said I could have the furniture."

_____________________________________________________________

o Lawyer: "Now, you have investigated other murders, have you not, where there was a victim?"

 How do lawyers become such poor communicators when they are paid to be the best communicators? There is a consensus of opinion on this.

            Author and column writer for the ABA Journal Jim McElhaney stated:

“Law school is as much obscure vocabulary training as it is legal reasoning.  At its best, it can teach close thought and precise expression.  But too often law school is reverse Hogwarts – where Harry Potter trained to be a wizard – that secretly implants into its students the power to confuse other people instead of sowing the magic seeds of clarity and simplicity. . .”

Brian Garner, whom you know as Editor of Black’s Law dictionary and author of more than two dozen books about English usage and style as well as advocacy, wrote:

While lawyers are the most highly paid rhetoricians in the world, we’re among the most inept wielders of words. Stop and think about that. The blame goes primarily to law schools. They inundate students with poorly written, legalese-riddled opinions that read like over-the-top Marx Brothers parodies of stiffness and hyperformality.[3]

            Turkowitz, in “How Not to Ask a Question”, wrote:

It isn’t really hard to abuse the English language. All you need to do is go to law school.

---

[1] Brian Garner, “Plain Talk: A conversation on simplicity with Rudolf Flesch” by, ABA Journal January – February 2019

[2] http://www.rinkworks.com/said/courtroom.shtml 

[3] ABA Journal (March 2013, p. 24)

GREAT CROSS-EXAMINATIONS AND TEXAS

South Texas Law School
Houston Texas

Last week I spoke on “Great Cross-Examinations and Techniques” at the 2018 Hurricane Harvey Regional Training conducted by the Texas District and County Attorneys Association. My half-day presentations were at Victoria College in Victoria, Texas on June 6; South Texas College of Law in Houston on June 7; and the Jefferson County Courthouse in Beaumont on June 8.

The Hurricane Harvey Regional Training program was developed because hurricane Harvey devastated much of the Texas coast from Corpus Christi to Beaumont, and had a severe economic impact, which prevented prosecutors and their investigators from attending past continuing legal education courses. The Texas District and County Attorneys Association developed the Regional Training program to meet the need for this overdue training. It was a joy to make these presentations for such a worthy cause.

Great cross-examinations in history and on film can teach great trial techniques. They provide lessons in what works in a courtroom and what doesn’t.  With the aid of famous movie clips of cross-examinations and actual crosses in legendary trials, the presentation explores the best in cross-examination skills and strategies. 

Jefferson County Courthouse in Beaumont Texas

This “Great Cross-Examinations & Techniques” covers:

• How to identify and select the content for a winning cross
• Techniques for controlling evasive and other difficult witnesses
• Methods for constructing a persuasive, storytelling cross
• How to successfully cross-examine expert witnesses
• Construction cross-examinations
• Demolition cross-examinations
• Character and conduct of the effective cross-examiner
• Crosses in historical trials – O. J. Simpson, Scopes, McMartin Preschool, Zacarias Maussaoui trials among others
• Memorable, instructional movie cross-examinations from Anatomy of a Murder to the Case against 8 documentary.

HOW TO CRAFT AND DELIVER AN EFFECTIVE OPENING STATEMENT

You can watch prosecutor Scott O’Toole deliver opening statement to a jury in a multiple-victim murder case. The defendant is Michele Anderson who is charged with killing six family members on Christmas Eve 2007 in Carnation, Washington. Prosecutor O’Toole’s opening is a fine example of how to craft an opening statement that will leave a lasting impression on the jury. And, the speech techniques that he uses to communicate to the jury are extremely effective.

The following are some things to watch for as you view the video of O’Toole’s opening. First, he opens by taking the jury to the crime scene. Obviously, he has walked the scene – a scene visit is critical to your presentation to the jury – because he takes the jury there with their  minds’ eyes. He paints a picture of what it looked like walking to the house and shed where the bodies were found. By beginning with a description of the bucolic scene he seizes the jurors’ attention with a stark contrast - the scene where the bodies were found. Other contrasts that he alludes to include it being Christmas Eve in a decorated home with family gathered to celebrate. “Nobody lives in that house anymore,” he says.

Second, the prosecutor’s theme is simple but powerful. He tells the jury that the case is about six human beings. This conveys the moral imperative that the jury will be compelled to return a guilty verdict should they find that Anderson took the lives from the six human beings who represented three generations of the family. Giving the opening statement symmetry, he finishes with the names of the six human beings. To bring these human beings into the courtroom, O’Toole doesn’t go high tech. Rather, he holds up an enlarged picture of each family member and tells the jury a little bit about the person.

Third, O’Toole told the story from different points of view, bringing the story alive in the courtroom. He begins by verbally taking the jurors to the scene and showing it to them. He stepped away from the scene and told the jurors about whom the victims were and then outlined what the evidence would be. Next, the prosecutor shifted the storytelling to a police perspective and the story becomes a police procedural with the evidence being uncovered by law enforcement, including the defendant’s prevarications and confessions. Then, O’Toole shifts back to telling the narrative story of the killings putting the jurors there. He shifts at times from the past  to the present tense – “the bullet lodges” ,“Olivia is next” - enabling the jurors to follow along step by step as Anderson kills the family members.

Fourth, O’Toole dwells on Anderson’s motive. Relying on the Rule of Three speech technique, he said, “Money. Money. Money.” He explained how often Anderson spoke about money and how angry she was. This gives the jury an understanding of why Anderson did what she did, a question they are undoubtedly asking themselves.

Fifth, the prosecutor finished strong by describing the evidence showing how Nathan Anderson died. In conclusion, O’Toole said, “Call it what you will ‘mass murder, obliteration of a family.’ That’s not necessary. In closing argument, I will stand before you again and ask you to simply call it what it is – six counts of aggravated murder in the first degree for the murder of Wayne Anderson, Judy Anderson, Scott Anderson, Erica Anderson, Olivia Anderson and Nathan Anderson. Thank you.”

Click here to watch prosecutor Scott O’Toole’s opening.

POWERFUL ENDING TO YOUR CLOSING ARGUMENT

Rule of Recency

Under the rule of recency, the information or idea you deliver last in your summation is what your jury will remember. For that reason, give careful consideration to how you phrase the final words in your closing argument. Under the rule of recency, it’s ideal if you close last, but, whether or not you go last, the best efforts should be devoted to crafting your parting remarks to the jury.

Criminal Case Illustration

Bugliosi with main witness

A previous post provided Vincent Bugliosi’s two concluding prosecutorial remarks in the Charles Manson case as illustrations of how to finish closing in a criminal case. The Manson case involved seven people being shot, stabbed and beaten to death. First, Bugliosi ended his initial closing in this powerful way:

“Under the law of this state and nation these defendants are entitled to have their day in court. They got that.

“They are also entitled to have a fair trial by an impartial jury. They also got that.

“That is all that they are entitled to!

“Since they committed these seven senseless murders, the People of the state of California are entitled to a guilty verdict.”

Second, in rebuttal, Bugliosi stressed the magnitude of the tragedy and called for a guilty verdict with these words, pausing after each name so the jurors could remember the person:

 “’Ladies and gentlemen of the jury,’ I quietly began, ‘Sharon Tate . . . Abigail Fulger. . . Voytek Frykowski . . .Jay Sebring . . . Steven Parent . . . Leno LaBianca . . . Rosemary LaBianca. . . are not here with us now in this courtroom, but from their graves they cry out for justice. Justice can only be served by coming back to this courtroom with a verdict of guilty.’”

Civil Case Illustration

The antitrust trial of Novell, Inc. v. Microsoft Corporation provides a good illustration of how to conclude a closing argument in a civil case. In Novell, the plaintiff's contention was that Microsoft committed anticompetitive acts to undercut Novell's WordPer­fect word processor software and thus gain an unfair advantage for Microsoft's software. Microsoft responded age that Novell's product failed not because of Microsoft's anticompetitive acts, but because Novell made bad choices and Microsoft makes great products. The Novell v. Microsoft trial lasted over two months and resulted in a hung jury, with one holdout juror favoring Micro­soft. On July 16, 2012, the Judge dismissed the case, holding that Novell "did not present evidence sufficient for a jury to find that Microsoft committed any acts that violated [federal antitrust laws] in maintaining its monopoly in the operating systems market." Novell appealed and the 10th Circuit af­firmed the district court decision.

Plaintiff's counsel's final remarks provide an illustration of a motivating conclusion, incorporating the three essential ingredients. First, counsel revisited the plaintiff's case theme — Novell should have a level playing field. Second, it asked the jury to find that Microsoft engaged in anticompetitive acts. Third, it included an ethical argument that what Microsoft did to Novell was "not right." Counsel argued:

“This case, however, is about preserving the competitive process on the ability to compete in the marketplace. All WordPerfect wanted was the ability to compete with Microsoft Word and Office on a reasonably level playing field and a chance to provide an updated version of its products to its loyal user base on Windows 95 operating system.

“Now, you know, if we had been able to compete, I guess there's no guarantees, but I think we had a fair shot given our strong product at the time and the market that was available and our user base.

“But what they did to us was to make sure we couldn't even get on the field. And that's not right.

“Microsoft has stated repeatedly that it doesn't matter that we couldn't get on the field. They provide these justifications for their view. They basically say that Microsoft was so big and powerful that even — there's no way we could have won even if we got on the field. Next they will say we're so weak that even if we got a chance to play the game we wouldn't have been able to finish, that we were already some sort of sinking ship.

“But none of those excuses mean that we shouldn't have been given a chance to be on the field, given a chance to compete in this system.. .

“It became clear that we were not competing on a level playing field. Our key competitor, Mi­crosoft, could control our ability to put product out the door and did so, and that meant that it was impossible for us to fulfill our promises to customers, it was impossible for us to derive significant value, and it made much more sense for us to sell product and pursue other opportu­nities.”

“Ladies and gentlemen of the jury, we put our faith and our trust in your hands. Thank you.”