EFFECTIVE TRIAL ADVOCACY: THE PRINCIPLES

1. EFFECTIVE TRIAL ADVOCACY: THE PRINCIPLES • DISTRICT COURT OF THE VIRGIN ISLANDS • MID-YEAR CONFERENCE • JULY 11, 2014 • PROFESSOR STEPHEN A. SALTZBURG

2. The Question • If you were on trial for your liberty or your fortune, which would you prefer? • The facts on your side? • The law on your side? • Abraham Lincoln as your lawyer? • In close cases – those that are tried – the credibility of the lawyer is critical

3. Lawyer Credibility in Bench Trials • Warren D. Wolfson, From the Bench, Evidence Advocacy: The Judge’s Perspective (Ill. Ct. App.), 28 Litig. 3 (Fall 2001): • “What makes a judge rule one way and not the other?” • “As a general rule, in close cases, judges, like juries, will decide in favor of the people they like and trust and against the people they do not like and do not trust. If these qualities have to be rated, trust and distrust carry the most weight.” • “The lawyer who wins the judge’s confidence usually will win the close rulings.”

4. Conn. Ct. App. Judge Douglas S. Lavine, The persuasive power of understatement, National Law Journal, August 30, 2010 • “At the heart of any persuasive appeal lies the credibility of the communicator. Whether a particular audience accepts an argument depends in large part on how credible the communicator is viewed as being. This is as true in a court of law or any legal setting as in other venues. Whether you are a juror listening to a summation, a judge listening to an appellate argument or a prospective car buyer listening to a salesman’s pitch, you will be asking yourself the same question: Can I trust what this person is telling me? Is it accurate? Plausible? . . . Do I believe this person? Do I trust him/her?”

5. Conn. Ct. App. Judge Douglas S. Lavine, The persuasive power of understatement, National Law Journal, August 30, 2010 • “The popular culture often portrays lawyers as bombastic, egocentric, manipulative and over the top. In reality, effective advocates tend to be down-to-earth, fact-based, honest and concrete.”

6. 1. Personal Advocacy (Ethos) • Jurors assume you know the truth • Must demonstrate conviction w/in rules of professional responsibility • Cannot say “I know” or “I believe” • But you must make the jurors believe that you believe and make them believe in you

7. Learn to Establish Your Rule I • Lawyer must do the work • Lawyer makes witnesses credible or leaves them vulnerable • Bad Witnesses Usually Mean Bad Lawyers • Personalize clients properly • No “my client” • Don’t sound like a lawyer • Don’t sound too smart

8. Tools to Establish Your Rule I • Give Away What You Can’t Win or What You Cannot Control • E.g., We Welcome the Requirement that We Prove Guilt Beyond a Reasonable Doubt • If You Have a Reasonable Doubt, You Should Acquit • Give Away What You Don’t Need • It Makes You Look Credible • E.g., End of Income Stream in Lost Wages Case

9. 2. One Central Theme (Logos) • Most important task, most difficult • Ties directly into credibility • Opposite of the buffet theory • Why do lawyers argue inconsistently?

10. John W. David, 10/22/1940Speech to Bar of City of NY • “More often than not there is in every case a cardinal point around which lesser points revolve like planets around the sun, or even as dead moons around a planet; a central fortress which is strongly held will make the loss of all the outworks immaterial.”

11. Judge Lavine, Articulating a Central Theme: The Key to Advocacy, 7.22.2013 N. Law J. • “A unifying theme provides the mind with a hook – an organizing principle – to make sense of seemingly random bits of information. This is particularly true in complex cases, when a judge, or jury, may have little or no background in the area under discussion.”

12. You Must Choose and Adhere to Your Choice • Lawyers are afraid to choose • Fear they cannot prove the theme • But, you cannot be trustworthy if you cannot clearly state your case • The reason it is difficult is that the case has not been tried and yet you must play it out as though you know how it will be tried

13. The Three Sins • 1. Actual Contradiction • Never argue against yourself • Cannot be credible • Jurors think you know what the truth is • 2. Apparent Contradiction • Use the “moreover argument” with care • 3. Cumulation • Weak arguments never add; they subtract

14. Rules & Laws of Probability • Theme Must Account for All the Facts • Facts are What the Jury Believes When Case is Over • Most Powerful Tool: Rules and Laws of Probability • Using these Rules Properly is the Largest Challenge you Face

15. 3. Make a Case Bigger than Its Facts (Pathos) • Make the Jury Want Your Side to Win • The Case is About More than Just Your Client • It is About Something that Matters or Should Matter to the Conscience of the Community • This May Shock You But The Truth is that If the Jury Thinks that Justice Requires that One Side Win, That Side Will Win Regardless of the Instructions the Judge Gives or Whether Each Element of a Claim or Defense is Sufficiently Proved • Milwaukee Trial of Armed Felon is an Example

16. 4 THINGS NEVER TO FORGET • If You Are Afraid to Say it to the Jury, Don’t Expect the Jury to Say it to You • The Order in Which You Say Things is as Important as What You Say • Never Combine Weak Arguments with Strong Arguments • Weak Arguments Always Weaken Strong Ones • Jurors Must Hear the Explanation Before they Know There is an Accusation

17. Psychological Principles • Primacy • Recency • Frequency • Vividness • These are important at all stages of a trial

18. Going First • The advocate who goes first has the opportunity to address his/her theme before the other side is heard • All facts can be addressed in the order and context most favorable to the advocate • Leaving out facts at any stage can be dangerous • E.g., In opening statements, the defendant may challenge the credibility of the plaintiff (prosecutor) by pointing out omitted facts

19. Going First (cont) • The direct examiner may leave a witness open for cross by failing to deal with facts • Or, by failing to deal with facts, the direct examiner may lose the opportunity to elicit them in a context that makes them most helpful

20. Going Second • Not everyone can go first • The one who goes first has an opportunity that becomes a “responsibility” to address all the facts • If the one who goes first leaves out facts or misstates facts, the one who goes second not only points this out, but attacks the Rule I of the first advocate • If you could choose, which: first or second?

21. The Lawyer Makes Facts Persuasive • Facts do not march into courtrooms • Lawyers elicit facts • Facts are as persuasive as lawyers make them • It is not enough to know how to ask non-leading questions on direct or leading questions on cross-examination • It is necessary to know what to ask, when to ask it, and what argument to make

22. Trust and Integrity Are Vital • Trials are about persuasion • Persuasion requires a jury or judge to believe the theory • Belief requires trust • Trust is built on integrity • Integrity is demonstrated by the choice of a theme or theory and the execution of it

23. Never Squander a Trial Moment • Americans have short attention spans • Average TV evening news excerpt is 90 seconds • You must win trust from the outset • People begin to decide quickly • Do not squander the early moments of any stage of a trial