Overcoming Jury Bias Page 3

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I. Fill the Gaps in the Evidence – The major role which bias plays in the formation of each individual juror’s model of the case is to fill the gaps left in the evidence. It follows that one of the most effective means of overcoming jury bias is for the attorney to carefully evaluate your evidentiary position and be certain that all of the potential evidentiary gaps have been filled before closing your case. As trial attorneys, we often assume that certain matters require no proof because they are “obvious to everyone.” Such reasoning is often the source of the gaps which must be filled by the beliefs, values and biases of the jurors. When we leave jurors to their own devices in reasoning out important aspects of a case, we must understand that, in the absence of evidence to consider, their reasoning will be built on a foundation of their predispositions, beliefs, values and other biases. Either fill the gaps with evidence or the jurors will fill them with conclusions based on bias.

J. Creating, Adapting, and Anchoring Themes – It is axiomatic that counsel should develop a theme during voir dire examination, carry it through opening statement, expound upon it in the evidence and use the fully developed theme as a cornerstone of summation. There are numerous ways to develop a theme but two of the most useful are through client involvement and assimilation of the standard themes to your case.

Proper development and use of themes can be a powerful tool in confronting jury bias. Jurors form their own model of the case by the end of the primacy portion of the trial and measure evidence and new data against that model through the remainder of the trial. Each individual juror’s biases play an important role in molding their model of the case. When all of the new data and evidence is concluded, jurors analyze the information in order to answer the questions submitted by the court. Gaps in the evidence and information at the end of the trial are filled by the juror with what they have learned from their own life experiences, i.e., their values, predispositions and biases.

The important role which effective theming can play in overcoming bias is to assist the jurors to adopt your model of the case as their own, leave no gaps in the model and reduce the need for the jurors to revert to bias.

The utilization of one or more themes is an effective method of organizing and presenting the closing argument. Themes should be selected at the initial stages of case preparation. They can then be implemented throughout the trial–including voir dire, the opening statement, the trial of the case itself, and the closing argument. The theme gives the jury a title, a goal and a purpose within a vital framework for deliberations.

Thus, when structuring the summation, plaintiff’s counsel should focus on those issues which will have maximum impact on the jury. Time is very precious during the closing argument and should not be spent on superficial or frivolous issues. Counsel can choose either a climax or an anticlimax order for the presentation of strongest points. The climax argument begins with points of lesser impact, then builds and culminates with those of maximum impact. The anticlimax argument is obviously just reversed. Counsel, however, should NEVER allow issues of main impact to be diluted by blanketing them in the middle of the argument.

1. Developing Case Specific Themes – If your client is catastrophically injured, such as paralytic, brain damaged or otherwise severely impaired, one means of effectively developing a theme is to spend the day with your client. It is your job as counsel for the injured plaintiff to convey to the jury a clear understanding of the physical pain and suffering, mental anguish, physical disability and other elements of damage which your client has suffered in the past and will suffer in the future. In order to accomplish this, counsel must acquire empathy with the client on these issues. We cannot effectively and persuasively convey to the jury that which we do not fully understand.

A second technique of client involvement is to have the client write their own thoughts with respect to the physical pain and suffering, mental anguish, physical disability and impairment to earning capacity which they are experiencing. In addition to gaining a valuable basis for proof and argument of damages, you may gain a considerable insight into your client’s reasoning process and level of suffering and endurance.

Finally, conduct an in-depth general damages interview with your client, preferably with a medically trained person present. Ideally, we conduct these interviews on videotape with the video equipment being set up as unobtrusively as possible. By encouraging your clients to talk, as soon after the accident as possible, about the physical pain and suffering and mental anguish which they are experiencing, you acquire a new understanding of the depth and scope of their problems which will help you in developing, understanding and conveying your theme regarding damages to the jury.

2. Adapting Standard Themes – There are numerous standard themes which have been developed over the past few decades of litigation. There is no need to reinvent the wheel when we can stand on the shoulders of giants such as Harry Philo, Bill Colson and Scott Baldwin the people who have developed and successfully used these standard themes for decades. The standard themes include, for example, corporate greed vs. consumer safety, child safety, product safety, workplace safety or whatever category your client fits into in the case. The corporate greed theme is that:

A corporation has no heart, it has no soul, it has no nerve center, it has only bank accounts. Corporations exists solely to produce profits and converse only in the language of accounting. But this corporation must receive the message that the citizens of Texas will not tolerate corporate greed over consumer safety. As jurors in this case, you have the opportunity to send that crucial message to the corporation in this case.

That is a standard theme which can easily be assimilated to fit your case. Standard themes are located in several books that have been written on the subject of summation.

1. Case Themes – The importance of case themes is so vital that every case should have a case theme. It may be a simple theme in a rear-end collision case revolving around damages and the value of human life. In a malpractice case you may use a series of impact words and phrases that describe why the plaintiff ought to win and the defendant ought to lose. A case theme which explains both the plaintiff’s position and reverses the defendant’s theme is the perfect case theme. The case theme should be short and perhaps use alliteration or other literary techniques to make it more memorable.

Here are some examples of case themes. In a rear-end collision a young man was struck so hard that his head broke the rear window of the truck and he sustained brain damage. The case occurred because a laundry truck driver was changing lanes quickly in heavy traffic and did not see the plaintiff bring his vehicle to a stop in front of him. The theme for that case was “an erratic lane change led to a catastrophic life change.” That theme obviously said everything about the case. It said it was a serious case and that the injuries had substantial effect on the plaintiff’s life. It states that the injuries occurred because the defendant was negligent in changing lanes. In an oil refinery explosion, the defendant contractor had installed 120 valves backwards and had valves which allowed volatile hydrocarbons to bleed into the atmosphere. In that case, the theme was, “Ladies and Gentlemen, they contracted to build an extension to the oil refinery, instead they built a bomb!” Throughout the case that plant became a bomb in the jury’s eyes. Ultimately the reinsurance company, who sent someone over from London to observe the trial, decided they had enough of hearing about the bomb. They settled for substantial money on the third day of trial.

In an anesthesiology medical negligence case a child became anoxic due to a laryngospasm (a spasm of the larynx blocking off breathing). Instead of acting rationally and giving the drug Anectine to reverse the spasm, the anesthesiologist tried to force a laryngoscope (a tool used to insert a breathing tube) into the child’s mouth. When he could not force it in, he flung it across the room. The theme in that case was, “A professional panicked. Professionals must not panic.” This theme like the others said all there is to say about the case. It showed why the plaintiff ought to win and the defendant ought to lose. He panicked and he should not have.

These are just some ideas of what we mean by a case theme. You have to design your case theme with each individual case and each individual set of facts. With a little experience we find ourselves thinking of each case as “this is the case of (blank)”. Eventually we learn to develop great case themes and our presentation will become more effective. The case theme is repetitive. The key words are used in voir dire, driven home in opening statement, logically supported by evidence from witnesses, documents and demonstrative evidence, and driven home forcefully in closing argument. By repeating a case theme, we tie the case together in the jury’s mind. We will now consider a technique which will encourage the jury to adopt your case theme.

3. Thematic Anchoring – Anchor the case theme so that the message contained is remembered and used. See infra at C2 (b).

a. Thematic Anchoring

(1) Anchoring Through Repetition – Anchoring is a well accepted psychological technique. Anchoring is a technique whereby a word, a phrase or a theme is repeated. It is repeated from the same spot, with the same gestures, with the same facial expressions, the same tone of voice, and with the same mannerisms. One use for anchoring that everyone can remember was done by the late great Jack Benny, who had a certain way of folding his arms, putting his hand under his chin, and saying the word, “Well….” Pretty soon he was getting laughs without saying the word and then he did not even need to put his hand under his chin. He just used part of the gimmick and the anchor worked. Anchoring causes an association of the subject matter anchored with an emotional response that is initiated by the repeated use of the anchoring technique. In essence, it communicates our theme impactfully on an emotional level. Because of the pipeline, the theme is easily recalled and therefore is more likely used. The key is that information which is anchored will be likely remembered and used. The most important information you want a jury to remember and use is your case theme. It explains why your client should prevail.

The techniques that we have described here are excellent communication techniques. They are well documented in the social science literature. They can be used very effectively at trial, in personal relationships, in negotiations, and many other areas of life. They are techniques which have been scientifically studied. They are tools available to trial lawyers whose job it is to communicate effectively.

While understanding and using these techniques is no guarantee of success, they give the advocate who knows and understands them a persuasive edge. And in this age of high powered litigation in both large and small cases, any edge that an advocate can achieve is one he or she should have. It is our job to present our client’s case in the best light. We can achieve this most effectively by increasing our understanding of how to communicate simply with jurors on all of the levels through which they receive information.

Anchoring is a technique of establishing a pattern of behavior to communicate with the listener’s unconscious mind. It is an organized means of verbally communicating with a conscious mind while non-verbally communicating with the unconscious mind. Anchoring is used during voir dire examination to introduce the case theme followed by repetition and the use of a more precise statement supporting the case theme during opening statement. At some point in the beginning of the summation again anchor the case theme. That is, return to the language which sets out the case theme, say it in the same manner with the same gestures and from exactly the same position in the courtroom utilizing the same graphics and impact words and phrases which are the heart of the case theme. For example, when trying a case in which the theme is that defendant placed “corporate profit ahead of child safety”, this impact phrase should be anchored in several ways: 1) verbally by repeating precisely the same words; 2) vocally by using the same tone of voice; 3) non-verbally by using the same gestures and movements each time the phrase is delivered; 4) physically by standing in exactly the same location in the courtroom when discussing that theme and at no other time; and 5) visually by referring to precisely the same piece of demonstrative evidence while delivering the phrase. Anchors ideally are used throughout every phase of the trial. In order to establish and maintain their effectiveness, they must be used consistently and precisely.

Anchors may be used effectively by plaintiff’s attorneys and prosecutors in conjunction with the primacy concept. However, they may also be used effectively by defense attorneys, both in civil and criminal cases. The goal of plaintiff’s counsel is to anchor a case theme through a highly emotional state while the goal of defense counsel is to anchor the defendant’s theme through use of a logical, objective, factual state.

Anchoring is a technique that could be most closely likened to classical conditioning when an identified stimulus will elicit a particular response, e.g., Pavlov’s Dog. Anchoring frequently occurs in the courtroom by attorneys who are using the device unconsciously.

(2) Anchoring Technique – For example, when an attorney punctuates the air with his eyeglasses in order to make a particular point, it is a form of anchoring. However, if the same attorney punctuates the air with his glasses on a different issue, the anchoring process is lost. To be effective, anchoring must be consistent, repetitious and use identical methods for eliciting a particular response pattern.

(3) Collapsing an Anchor – It is also important for the skilled advocate to understand how to collapse an anchor. If you see your opposing counsel successfully anchoring his or her message or case theme in the minds of the jurors, you need to identify whether counsel is accomplishing this through verbal message, voice tone, nonverbal communication, spatial manipulation, use of exhibits or more likely, a combination of these. You can successfully collapse the anchor by standing in the same location, using a different voice tone, different nonverbal communication and a different graphic to talk about exactly the same subject matter. It is just as important to understand how to recognize and collapse anchors as how to create them.

(4) Anchor Recalls Entire Experience – Anchoring is a technique for locking in a particular experience, event, theme or evidentiary points in the minds of jurors for the crucial retention and recall during the deliberative process. The neuropsychological principle underlying anchoring states that any element of an experience, when repeated, replays all elements of the experience. Any associational method which triggers events in the mind, triggers recall of the entire experience surrounding the events.

K. Structuring Power Themes to Cope with Bias

1. Psychological Principle of Structuring – Jurors are influenced by the way the message is structured and delivered. Jurors are constantly trying to make sense out of their environment and/or attempting to resolve incon-sistencies. Therefore, it is an important consideration to jurors as to how the information being conveyed by counsel is structured and delivered. Is the theme or message consistent, easily remembered and well delivered? Jurors are more likely to perceive the source as credible when the way in which the message is presented allows jurors to feel both competent and intelligent. If counsel presents data which is too confusing or too multifaceted, jurors will discredit the information rather than discredit their own capability to understand the information. Therefore, the skilled advocate will present information which is simplified which jurors can easily perceive and which make them feel competent in carrying out their duties as jurors. An attorney delivering a complex message does not convey the perception to the jurors that the attorney is intelligent. More likely, jurors will perceive the attorney as less intelligent and incapable of communicating a clear and simple message. Jurors look at the attorney as the source to find out what is wrong with the information presented.

2. Psychological Tools of Structure – Certain principles are now axiomatic in the field of psychology which can be applied with great effectiveness by the skilled trial attorney to a jury trial. These include, among many others, primacy, thematic anchoring, embedded commands, the Zeigarnik effect and the principle of recency.

a. Primacy – Jurors tend to place the greatest emphasis on information which they receive first concerning a person or an occurrence. Combine this with the communication principle that perceptions are organized and structured by jurors within a brief period of time and we learn that impressions, particularly concerning people, are formed based on very scanty information. The bottom line for trial lawyers with respect to the principle of primacy is that the information presented first is most decisive.

The skilled advocate will utilize the principle of primacy repeatedly throughout the trial. For example, the first witness in the morning, the first questions asked of that witness, the first questions asked after a coffee break when a witness is recalled, the first questions asked after the lunch break, the first questions on cross examination and, of course, the important use of primacy during the trilogy of persuasion. The first four minutes of voir direct examination, opening statement and each section of the summation are the most crucial to perception, formation, and persuasion. The demonstrative evidence introduced during the earliest moments of testimony of a witness, during the earliest part of the day and the earliest part of the trial, will be received, retained and recalled better by jurors than other demonstrative evidence.

In crucial debriefing of thousands of jurors, they invariably had a much better recall of the beginning and the ending of trials than of the evidence offered during the middle of the trials. This raises the next issue as to which has the most impact, the beginning or the ending, i.e., primacy or recency. The skilled advocate utilizes both primacy and recency as part of the persuasive process.

One of the important uses of primacy by the plaintiff’s attorney is the opportunity to establish the issues in the case and the language which will be used to discuss those issues. Plaintiff’s counsel should advise the jury from the inception, on voir dire examination, and opening statement, that the issues to be resolved by them are simple, state what those issues are in very simple, common sense terms, and warn the jurors not to be misled by attempts to confuse and complicate this very simple lawsuit, which will be the tactic of the defense.

Combining the principle of primacy with the communication principle that perceptions are organized and structured within a brief period of time, the Plaintiff’s attorney must effectively utilize the first impression stage of the trial which includes voir dire, opening statement and the first witness. These three areas form the basis of the jury’s first impression of the case. The goals of the Plaintiff’s attorney during this crucial time frame should be to educate as to the issues in the case, disclosures of the weaknesses in the case, inoculation against the defendant’s attack and clear simple repetition of plaintiff’s themes.

The principles of primacy and recency can be interwoven into the closing argument structure. The principle of primacy maintains that listeners will tend to believe most deeply what they hear first.

Neurolinguistic Programming – Pacing

(1) Pacing to Create Similarities – Interactional pacing or neurolinguistic programming is used as a tool of persuasion. The jurors, in order to be comfortable, are looking for similarity. Pacing or neurolinguistic programming is a process where one takes advantage of this search for similarity in the jury’s mind by creating similarities not only on the conscious level, but on the unconscious level. If jurors perceive us as similar, particularly on the unconscious level, we greatly increase the chance of jurors “liking us”. We know since the Sanito and Arnold’s study, that if they like us, we have a better chance of winning the case. This also ties in with the seminal principle: “All communication is based on perception.” What we are trying to create is perceived similarity. This perception takes place on the unconscious level and the jurors or opponent are not aware of it. Anything we can do to increase or intensify the feeling of similarity helps.

Pacing can be the most effective technique that a trial lawyer can use. It is something which occurs naturally with people who like each other. It is not fake and not false. But being aware of the technique will help you to focus on the person with whom you are communicating and will help you create a bond or a feeling of liking between you and that person. Pacing jurors can help because whether they like us on the conscious or unconscious level, it is still easier to influence them if there is “liking” on either level.

(2) Matching and Mismatching – Basically, we are talking about interactional pacing which includes two basic types of pacing, matching and mismatching. In a relationship between you and another person or you and a group of people, you can pace them to create a feeling of similarity and a feeling unconsciously that they like you. Interactional pacing occurs naturally. When a couple is in love and the romance is blooming, the couple matches one another. It is natural and occurs on the unconscious level. In an interactional situation we want to create this. That is, if we want the other party or parties to like us, we match them.

On the other hand, there are some situations where we want to create dissonance. We want the party or parties to feel they do not like someone. For example, in cross-examination, you may want the witness to feel uncomfortable. You may want the witness to be perceived to be squirming and out of step with everybody else. This is done by mismatching and thereby creating dissonance. The jurors, because the witness mismatches the lawyer, may on an unconscious level dislike him and not even know why.

(3) Pacing at all Levels – Interactional pacing takes place on all levels of communication. To pace a witness or a juror or a number of jurors, you must verbally match the juror’s language. One listens to their language pattern and uses a similar language pattern. We pick up on their words and use them. We listen for their key phrases and echo them. In essence, we adopt their vernacular.

Besides matching verbal cues, one should match vocal cues. That is, we should attempt to match their rate of speech, their pitch of voice, and even their pauses. This does not mean we mimic their speech pattern, but only match it in one or two aspects.

In addition to matching vocal and verbal cues, one needs to match the nonverbal cues. In doing this we match their gestures, not deliberately or obviously, but comfortably. We also match their facial expressions, their eye movements, their blink rates, and even their breathing patterns. All of these things form part of interactional pacing.

(4) Pacing in the Primary Representational System – Another key method to matching a person through interactional pacing is by matching the primary representational system the person is using at the time. That is, we match the way in which they are processing information. If they are processing visually, we deliberately use phraseology which signals the unconscious mind of the visual person. If they are using the visual channel, we want them to “see it our way.” If they are using the auditory channel to process information, we want them to “hear what we have to say.” If we have determined that the person we are trying to influence is processing his or her information kinesthetically, then we tell them “how we fell” about the situation and try and match their feelings with both words and gestures.

c. Embedded Commands – An embedded command is a technique for engaging the conscious mind while communicating to the unconscious mind. The skilled trial attorney will understand how to use the embedded command to identify a specific action message which he wants delivered to the unconscious mind. The unconscious mind is analogous to a computer in that it acts on commands. The commands upon which the unconscious mind acts are those which the conscious mind allow to come through to the unconscious mind requesting specific action. The purpose of the embedded command is to bypass the conscious mind penetrating the logical and rational process and communicate a command directly to the unconscious mind of the juror.

The unconscious mind is not selective in that when a command reaches the unconscious mind it responds impartially. There is no analysis process in the unconscious mind.

(1) Communicate a Command to the Unconscious Mind – The embedded command reaches the unconscious mind and commands the person to perform, think or feel in a particular way.

(2) Preface, Pause, Voice Change and Command – In order to accomplish this, two steps are required, first, there must be a “preface” which causes the conscious mind to drop its guard. Secondly, the embedded command must come after a pause, a voice change and a command beginning with the word “you”. The preface is delivered as a casual inquiry such as “I know you are wondering if”. The command part of the statement is delivered, after a distinct pause, in a stronger and lower voice tone, as customarily utilized in giving a command. The shifts in voice tone and the pause pattern serve to cue the unconscious mind that the following information is for it. The role of the unconscious mind is to discern nuances and behavioral changes which are the keys to this form of behavioral cuing.

The embedded command to the unconscious mind then follows the pause, such as “I was wondering if … you can feel the mental anguish involved in being a paraplegic?” This command, if delivered effectively to the unconscious mind, will cause the unconscious mind to perform by feeling the emotions which have been described by various witnesses during the trial that are inherent in being a paraplegic. This is a subtle but highly effective technique which can be used most effectively during summation in order to trigger emotional responses within the subconscious minds of the jurors.

Another type of embedded command deals with the establishment of evidence. This is accomplished using the phraseology, “I knew then what you know now”. The use of this particularly effective command works to reconfirm the evidence in the jurors’ minds.

d. The Zeigarnik Effect – When applied to litigation, the Zeigarnik effect is the psychological principle that jurors are more impressed with data which they discover for themselves over an extended period of time than with information which is spoon fed to them in bulk. The use of this principle in a personal injury case may be most effective with respect to proof of damages. Plaintiff’s counsel may consider that instead of disclosing the full nature and extent of the plaintiff’s injuries during voir dire examination and opening statement, it may be more effective to concentrate on proof of liability in the early portion of the trial and unpack the damages proof more slowly. In this manner, the nature and extent of the injury is continually increasing as more evidence is presented. Let each juror wonder as to the nature and extent of the injuries and they will watch carefully for additional evidence which answers the questions which are properly raised in their mind about “just how badly hurt is this plaintiff?”. As the information develops slowly over a longer period of time it will have a greater impact on the jury than if they are told everything in the inception and pay little attention to the details of the injury as they are discussed during the evidence. In some cases the extent of the injury is obvious immediately, however, the Zeigarnik Effect can be used to relate to the jury the effects of the injury on the injured party and on the spouse, children, occupation, recreation, etc.

e. Recency – The psychological principle of recency is to the effect that people remember longest that which they hear last. Thus, recency relates to ease of recall as distinguished from primacy which relates to formation of a belief. Clearly, both primacy and recency have been reflected in jury studies since jurors can recall with specificity the opening and closing portions of trial but have only vague, if any, recall of the events that occurred in the middle of the trial.

The skilled attorney will utilize the principle of recency by finishing big at every portion of the trial. In witness examination, whether direct or cross, always finish on a high note. Close every portion of the proof, whether on break for coffee, lunch, or at the end of the day with a significant piece of evidence. Wrap up every portion of the trilogy of persuasion, voir dire, opening statement or summation with a compelling point.

The principle of recency maintains that listeners will tend to remember longest what they hear last. It is imperative that closing arguments begin and end on issues of strength. The plaintiff’s counsel can effectively use knowledge of primacy and recency to insert specific issues into the argument in the most effective manner.

3. Rhetorical Tools of Structure – A review of the great speeches from Cicero and Demosthenes through Abraham Lincoln, Winston Churchill, John F. Kennedy and Martin Luther King reveals that there are common threads which pervade the great oratorical works. The prevalent thread is the effective utilization of rhetorical devices as a predicate to persuasive oratory. Rhetorical devices are language techniques which are used to arrange words in distinctive and persuasive phrases, sentences and paragraphs in order to forge greater force and fluency. Through the use of rhetorical devices, attorneys can couch themes more clearly and persuasively. There is no technique more useful to lift language from the abyss of lackluster speech to the peaks of eloquence.

The effective closing argument is an art as well as a science. As with all art and science, certain devices, techniques and tools can enhance the finished product. The plaintiff’s counsel must be able to use effectively the various rhetorical devices available to activate, stimulate and motivate the jurors. Although many rhetorical devices technically bring argument outside of the record, the facts of a case may be related to history, fiction, personal experience, anecdotes, Bible stories or humor. See Sheffield v. Lewis, 287 S.W.2d 531, 539 (Tex. Civ. App. -Texarkana 1956, no writ).

In Beaumont Traction the Court said:

If the conclusion of fact he wishes to bring the jury to by his argument is such as the law makes applicable to the case, and there is any evidence from which such conclusion can be deduced, he may use all the strength of mind and powers of utterance he can command to bring the jury to such conclusion. He may illustrate principles upon which he builds his argument by drawing on history, fiction, personal experience, adjudicated cases, and may even appeal to the logic of the poets….

Beaumont Traction Co. v. Dilworth, 94 S.W. 352, 355 (Tex. Civ. App. 1906, no writ.)

The following is a partial list of rhetorical weapons that have proved effective in the closing argument arsenal.

a. Triad – One of the most frequently used techniques throughout the history of eloquence is the rule of three, sometimes referred to as the triad. As a means of communicating rhythmically, memorably, and persuasively, the rule of three is one of the most valuable tools available to trial lawyers. This is true because the conscious mind is able to best deal with three items in terms of reception, retention and recall.

The idea is to communicate in threes in any unit of language: words, phrases, clauses, sentences, paragraphs, or the development of the entire argument. A rule for advocates is to try to convey three major messages to your jury in such manner that the messages can be remembered. Instead of trying to cover every minor point and persuade on every minor issue, we develop themes which are repeated throughout the trial. You may wish to develop three themes which you will try and convey to the jury or one theme with three messages within the theme. From the viewpoint of trial lawyers the rule of three can be used for everything from effective use of three words through effective persuasion on three themes.

Consider the following well-known examples in which the triad achieves rhythmic eloquence:

We hold these truths to be self evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.

We mutually pledge to each other our lives, our fortunes, and our sacred honor. (Thomas Jefferson).

Never in the field of human conflict was so much owed by so many to so few. (Winston Churchill)

With malice toward none, with charity for all; with firmness in the right.

We cannot dedicate – we cannot consecrate – we cannot hallow this ground.

And that government of the people, by the people, for the people shall not perish from the earth. (Abraham Lincoln)

Duty – Honor – Country. Those three hallowed words reverently dictate what you ought to be, what you can be, and what you will be. (Gen. Douglas MacArthur)

The Greek philosopher and mathematician, Pythagoras, referred to three as a perfect number. This was predicated on the ancient Greek belief that the world was ruled by three Gods and the Greeks revered love, laughter and beauty. The ancient Chinese worshiped gentleness, frugality, and humility. In Scandinavian mythology the Mysterious Three sat on three thrones above the rainbow. The Hindu trimurti consists of three Gods: Creator, Preserver and Destroyer. Christians believe in the trinity by which God exists in three persons: Father, Son, and Holy Ghost; Faith, Hope and Charity are the three Christian graces. Three wisemen paid homage to the newborn Jesus and brought three gifts: Gold, Frankincense and Myrrh.

The structure of man has three dimensions: Body, Mind and Spirit. Nature is divided into three: Mineral, Vegetable and Animal. Time has three aspects: Past, Present and Future. Government is divided into three levels: National, State and Local. Within each level of government there are three divisions: Executive, Legislative and Judicial. Psychoanalysts divide the human personality into three functional parts: Id; Ego; and Superego.

As we attempt to compose a summation or a persuasive theme the principles of composition are unity, coherence, and emphasis. Each summation or speech, according to Aristotle, should have a beginning, middle and end which are also termed as introduction, body and conclusion. Greek dramatists originated the concept of three divisions of drama: tragedy, comedy and satire. The three classical principles of dramatic construction are unity of time, unity of place and unity of action.

Thus, the rule of three is a basic tool for those who write prose, poetry, drama, humor, political speeches and persuasive messages. It should also be a powerful tool in the arsenal of the skilled trial attorney. As advocates, we can effectively use the triad during the trilogy of persuasion, the three times that we directly address the jury: voir dire, opening statement and summation.

Forensic psychologists tell us that grouping items in threes makes them easier to remember. The Rule of Three has been used by great orators throughout history to enhance the persuasive power of their oratory. The classic example is the following segment from a radio speech delivered by Prime Minister Winston Churchill to the citizens of England as the Battle of Britain was underway:

We shall fight them on the beaches,we shall fight them in the streets,we shall fight them in our homes,

we shall never, never, never surrender.

The use of the term “we shall fight them” to begin three consecutive sentences is the device of refrain. The phrases “on the beaches”, “in the streets”, “in our homes” illustrate the use of three word phrases at the end of three sentences. The term “never, never, never” illustrates the use of the Rule of Three in the middle of a sentence.

b. Parallel Structure – Parallel structure is an extremely effective technique for use during either opening statement or summation. It is particularly useful in a catastrophic injury case. As an example of this type of structure, consider the following excerpt from a speech by Senator William Fulbright:

There are two Americas.One is the America of Lincoln and Adlai Stevenson,The other is the America of Teddy Roosevelt and General MacArthur.
One is generous and humane,–the other narrowly egotistical;
One is modest and self critical–the other arrogant and self-righteous;
One is sensible–the other romantic.

Applying this technique to a summation can give the following results:

We have seen two Thomas Miller’s in this case.One an energetic and active father–the other a bedridden paralytic.One a helpful and loving husband–the other a helpless patient.

One a hard working provider–the other a financial burden.

One a healthy happy Thomas Miller before this defendant’s tragic mistake;

the other, Thomas Miller for the next forty years.

c. Antithesis – The rhetorical device of antithesis is used to balance contrasted ideas so as to highlight both ideas through the parallel arrangement of key phrases. Antithesis is used in conjunction with parallel structure to effectively counterpoise and contrast the past and the future, life and death, healthy and crippled, words and deeds, one and many, light and dark, mortal and immortal, age and youth, male and female, choice and determination and any number of other counterpoising principles. The effect of combining antithesis and parallel structure can create compelling and memorable summations.

For example, consider that President John F. Kennedy’s speeches were replete with antithesis. The classic example of the use of antithesis was contained in John F. Kennedy’s inaugural address wherein he entreated the American citizenry with the following challenge:

We observe today not a victory of party, but a celebration of freedom, symbolizing an end as well as a beginning, signifying renewal as well as change.
Let us never negotiate out of fear, but let us never fear to negotiate.
And so my fellow Americans, ask not what your country can do for you, ask what you can do for your country.
If a free society cannot help the many who are poor, it cannot save the few who are rich.

This technique, applied to the death of a child, may be used as follows:

In determining the damages in this case, don’t look at the death of this child, but look at the life which never will be.

The technique of antithesis is also extremely useful during summation in order to assist the jury in assessing the damages for an extended period of time in the future. As Winston Churchill said, “The further backward we look, the farther forward we see.”

Assume that you represent a twelve year old quadriplegic who has a sixty-four year life expectancy. One technique for making the jury appreciate how long sixty-four years of future mental anguish will be is to ask them to look back sixty-four years. The technique is to enumerate well known events which occurred from 1927 chronologically through 1991 such as Babe Ruth hitting 60 home runs, the stock market crash, the depression, Pearl Harbor, World War II, Korea, the Kennedy Camelot years, Watergate, etc. up to the present. See, for example, the use of this technique in an actual summation on page 81.

In order to make the jury understand the mental anguish which is to be suffered by this child for the next sixty-four years, as you catalog each of the occurrences from history since 1927 you use the refrain that:

If this accident had occurred 64 years ago this plaintiff would have witnessed this significant event of 1929 from his wheelchair as he endured mental anguish everyday of his life.

Another effective technique to demonstrate future economic cost is to compare the cost of a Ford automobile, a gallon of gasoline, a loaf of bread and other items from a Sears Roebuck catalog from those years in order to demonstrate the extreme increase in prices which the plaintiff will be required to cope with over the next sixty-four years.

d. Repetition – Aristotle’s third principle: Refresh the memory of your audience frequently.

(1) Repetition At The Beginning – Eloquent and rhythmic effects can be achieved by repeating a word or phrase at the beginning of consecutive clauses or sentences in order to form a rhythmic pattern which will capture the juror’s attention, stir their emotions, and persuasively deliver the message. Consider the following phrases of Martin Luther King in his Lincoln Memorial speech in 1963 wherein he uses the repetitive phrase “one hundred years later” in referring back to the signing of the Emancipation Proclamation:

But one hundred years later, we must face the tragic fact that the Negro is still not free.
One hundred years later, the life of a Negro is still sadly crippled by the manacles of segregation and the chains of discrimination.
One hundred years later, the Negro lives on a lonely island of poverty in the midst of a vast ocean of material prosperity.
One hundred years later the Negro is still languishing in the corners of American society and finds himself in exile in his own land.
This repetition at the beginning of the sentence creates a refrain.

(2) Refrain – A review of Martin Luther King’s “I Have A Dream” speech shows the brilliant use of refrain as he moves from the repetition of “one hundred years later” to repeating “I have a dream” which sequels into the refrain of “let freedom ring” which culminates in the climax of “free at last! free at last! thank God Almighty, we are free at last!”

Applying the triad/refrain technique to a summation may be illustrated as follows:

They gambled with our public safety.They gambled with our judicial system.They gambled with young David’s life.

We know that David lost their gamble.

We know that his parents lost their gamble.

We know that they must never, never, never be allowed to win their treacherous gamble.

Abraham Lincoln, in the Gettysburg Address, utilized the Rule of Three “of the people, by the people and for the people” as well as refrain “We shall not desecrate, we shall not consecrate, we shall not hallow this ground.”

(3) Echo Effect – The echo effect of repetition is achieved through the repetition at the beginning of successive sentences of one word or phrase which repeats the speaker’s theme. This may be a declarative statement such as the “I have a dream” which was used eight times consecutively by Martin Luther King or it may be in the form of a rhetorical question which reminds the jurors of their power, such as “what is this child’s life worth in our community?”

Politicians have understood the effectiveness of refrain in the echo effect by repeating phrases at the beginning of sentences for centuries. Consider the following example of repetition by Franklin D. Roosevelt:

Whoever seeks to set one nationality against another, seeks to degrade all nationalities. Whoever seeks to set one race against another, seeks to enslave all races. Whoever seeks to set one religion against another, seeks to destroy all religion.

(4) Augmentative Repetition – Daniel Webster coined the phrase “augmentative repetition” in order to identify and encourage the use of either the same word or a form of the same word for cumulative effect in conveying a message.

It has been the practice of English teachers to encourage the use of synonyms rather than repeating the same word. In fact, the standard rule in English has been promulgated to “never use the same word in a sentence – or within twenty lines”. H.W. Fowler in Modern English Usage refers to this as a fatal influence. Consider the use of augmentative repetition by John F. Ken-nedy: “We will neglect our cities to our peril for in neglecting them we neglect the nation.”

As was so often true with respect to the effective use of rhetorical devices it was accomplished brilliantly by Winston Churchill in his first speech as Prime Minister before Parliament in 1940. Note the use of sequel from war to victory to survival:

You ask, what is our policy? I say it is to wage war by land, sea and air. War with all our might and with all the strength God has given us, and to wage war against a monstrous tyranny never surpassed in the dark and lamentable catalog of human crime. That is our policy.

You ask, what is our aim? I can answer in one word. Victory. Victory at all cost, victory in spite of all terrors, victory, however long and hard the road may be, for without victory there is no survival. Let that be realized. No survival for the British Empire, no survival for all that the British Empire has stood for, no survival for the urge, the impulse of the ages, that mankind shall move forward towards its goal.

Napoleon, who was a great orator as well as a military genius, said “In speech making you need only one technique, and that is repetition, repetition and repetition”.

(5) Repetition of the Central Theme – In addition to the repetition of a word or phrase, the most effective means for conveying a message to the jury is through the repetition of a central theme throughout the case. After voir dire is complete, your theme should be clear to the jury. Certainly by the time you’ve completed opening statement, your theme should be crystal clear to the jury. Repeat the theme effectively by approaching the same basic theme from several different positions in your proof. By the time the evidence is complete, summation should simply be a review of what each juror has heard and seen several times during the course of the trial. Every member of the jury should know precisely what your theme is before you rise for summation.

e. Thematic Reversal – In keeping with Aristotle’s first principle of persuasion, i.e., to well dispose your audience to you and ill dispose them to your enemy, we use careful theme development in order to simply, forcefully and persuasively well dispose the jury to our case. However, the second half of the rule is equally important, i.e. to ill dispose them to your enemy. One of the most effective methods for accomplishing this is through the use of thematic reversal. This is accomplished by reviewing very carefully your opponent’s theme and in addition to simple rebuttal of their theme, reverse it and use their own theme against them. One of the most eloquent example of thematic reversal emerges from the colloquy between Brutus and Mark Antony in Shakespeare’s Julius Caesar.

Brutus, in his summation before the people of Rome immediately following Caesar’s death, brilliantly stated the theme of the slayers that Caesar had to be slain for the good of Rome because he was ambitious. Mark Antony rebutting Brutus without either criticizing or directly disputing him accomplishes this in a brilliant display of thematic reversal by examining carefully the slayers theme that Caesar was ambitious. While constantly praising the slayers as “honorable men” and without directly attacking their motives or their actions, Mark Antony reverses the theme of ambition, demonstrating Caesar’s lack of ambition, while speaking in positive terms about Caesar’s slayers throughout the summation. As Mark Antony reverses the theme, he reverses the minds of his jurors also. In analyzing the comparative speeches of Brutus and Mark Antony, consider Shakespeare’s use of the rhetorical devices which we are discussing herein. There is a reason why we are still watching, reading and enjoying his plays four hundred years after they were written. Consider the following “Summations”:

Brutus: Be patient till the last. Romans, countrymen, and lovers! Hear me for my cause, and be silent, that you may hear. Believe me for mine honor, and have respect to mine honor, that you may believe. Censure me in your wisdom, and awake your senses, that you may the better judge. If there be any in this assembly, any dear friend of Caesar’s, to him I say that Brutus’ love to Caesar was no less than his. If then that friend demand why Brutus rose against Caesar, this is my answer: Not that I loved Caesar less, but that I loved Rome more. Had you rather Caesar were living and die all slaves, than that Caesar were dead to live all freemen? As Caesar loved me, I weep for him; as he was fortunate, I rejoice at it; as he was valiant, I honor him; but as he was ambitious, I slew him. There is tears for his love, joy for his fortune, honor for his valor, and death for his ambition. Who is here so base that would be a bondman? If any, speak, for him have I offended. Who is here so rude that would not be a Roman? If any, speak, for him have I offended. Who is here so vile that will not love his country? If any, speak, for him have I offended. I pause for a reply.

All: None, Brutus, none.

Brutus: Then none have I offended. I have done no more to Caesar than you shall do to Brutus. The question of his death is enrolled in the Capitol, his glory not extenuated, wherein he was worthy, nor his offenses enforced, for which he suffered death.

* * *

Brutus: Good countrymen, let me depart alone, And for my sake, stay here with Antony. Do grace to Caesar’s course, and grace his speech tending to Caesar’s glories, which Mark Antony, by our permission, is allowed to make. I do entreat you, not a man depart, save I alone, till Antony have spoke.

* * *

Antony: Friends, Romans, countrymen, lend me your ears! I come to bury Caesar, not to praise him. The evil that men do lives after them, the good is oft interred with their bones; so let it be with Caesar. The noble Brutus hath told you Caesar was ambitious; if it were so, it was a grievous fault, and grievously hath Caesar answered it. Here, under leave of Brutus and the rest–for Brutus is an honorable man; so are they all, all honorable men–come I to speak in Caesar’s funeral. He was my friend, faithful and just to me; but Brutus says he was ambitious, and Brutus is an honorable man. He hath brought many captives home to Rome, whose ransoms did the general coffers fill. Did this in Caesar seem ambitious? When that the poor have cried, Caesar hath wept; ambition should be made of sterner stuff: yet Brutus says he was ambitious, and Brutus is an honorable man. You all did see that on the Lupercal I thrice presented him a kingly crown, which he did thrice refuse. Was this ambition? Yet Brutus says he was ambitious, and sure he is an honorable man. I speak not to disprove what Brutus spoke, but here I am to speak what I do know. You all did love him once, not without cause; what cause withholds you then to mourn for him? O judgement, thou art fled to brutish beasts, and men have lost their reason. Bear with me; my heart is in the coffin there with Caesar, and I must pause till it come back to me.

First Citizen: Methinks there is much reason in his sayings.

Second Citizen: If thou consider rightly of the matter, Caesar has had great wrong.

* * *

Fourth Citizen: Marked ye his words? He would not take the crown; therefore ’tis certain he was not ambitious.

* * *

Antony: But yesterday the word of Caesar might have stood against the world. Now lies he there, and none so poor to do him reverence. O masters! If I were disposed to stir your hearts and minds to mutiny and rage, I should do Brutus wrong and Cassius wrong, who, you all know, are honorable men. I will not do them wrong; I rather choose to wrong the dead, to wrong myself and you, than I will wrong such honorable men. But here’s a parchment with the seal of Caesar; I found it in his closet, ’tis his will. Let but the commons hear this testament–which, pardon me, I do not mean to read–and they would go and kiss dead Caesar’s wounds and dip their napkins in his sacred blood, yea, beg a hair of him for memory, and, dying, mention it within their wills, bequeathing it as a rich legacy unto their issue.

* * *

Antony: Good friends, sweet friends, let me not stir you up to such a sudden flood of mutiny. They that have done this deed are honorable. What private griefs they have, alas, I know not, that made them do it. They are wise and honorable, and will, no doubt, with reasons answer you. I come not, friends, to steal away your hearts. I am no orator, as Brutus is; but, as you know me all, a plain blunt man, that love my friend, and that they know full well that gave me public leave to speak of him. For I have neither wit, nor words, nor worth, action, nor utterance, nor the power of speech, to stir men’s blood. I only speak right on; I tell you that which you yourselves do know; show you sweet Caesar’s wounds, poor poor, dumb mouths, and bid them speak for me. But were I Brutus, and Brutus Antony, there were an Antony would ruffle up your spirits and put a tongue in every wound of Caesar that should move the stones of Rome to rise and mutiny.

* * *

Antony: Now let it work. Mischief, thou art afoot, take thou what course thou wilt.

f. Rhetorical Question – A rhetorical question is that device which a speaker can use to prompt the listener to ponder the answer of a question where both speaker and listener realize an answer is not expected. Rhetorical questions are frequently used in summation to empower jurors by having them answer a question in their own minds which makes them better understand that they have the power to resolve the issue raised in the question. For example, one of the most effective uses of the rhetorical question in a summation was the following wherein three rhetorical questions were used to close the plaintiff’s rebuttal portion of the summation:

  • Who will render full justice for this brave young man with a courageous heart beating in his useless body? If not you, who? If not now, when?
    • Rhetorical questions can be as simple as “what is this child’s life worth in our community?”, followed by the reminder that “this is your determination.”
    • William Shakespeare, the absolute master of rhetoric, made a complete argument and conveyed a distinctive threat by asking six rhetorical questions designed to make the point that Jews and Christians are no different as human beings. In Shylock’s speech from the Merchant of Venice, Shylock asked rhetorically:

    Hath not a Jew eyes? Hath not a Jew hands, organs, dimensions, senses, affections, passions? If you prick us, do we not bleed, if you tickle us, do we not laugh? If you poison us, do we not die? And if you wrong us, shall we not revenge?

Shakespeare, in conjunction with the use of six rhetorical questions, also demonstrates the effective use of short, powerful words. Of the 48 words in this message, 40 (83%) are one syllable.

g. Alliteration – The rhetorical device of alliteration is used to establish the flow and rhythm of your summation. It can be effectively combined with refrain, the Rule of Three and repetition in order to obtain an effective flow. Consider for example the following sentence:

We would witness this fine family emerge from the depths of despair into the heights of happiness.

h. Understatement – Another verbal technique which is used in summation which is similar in nature to the rhetorical question technique is the application of understatements. The principle of understatement simply means that it is far better, in terms of impact of testimony, that the obvious not be belabored. A piece of dramatic evidence of disability or injury should speak for itself. Do not harp on that evidence or belabor it because it surely will lose its impact.

A few years ago two young and inexperienced lawyers began trying a quadriplegic case. The client was brought into the courtroom and remained on her stretcher during voir dire and opening statement. Her counsel, discussing the case with an experienced trial lawyer later that day said that he anticipated a big verdict because the jury would be overwhelmed by the sight of this quadriplegic client. The experienced lawyer correctly predicted that there would be a verdict for the defendants. Ten days later, the jury wasted little time in returning a defense verdict. The young lawyer went back to the more experienced lawyers and asked how he knew it would be a defense verdict. The explanation was simple. The inexperienced trial counsel had failed to apply the technique of understatement to the case. The most dramatic piece of evi-dence was the quadriplegic client. They were hoping that the severity of the injury would overcome the liability problems of the case. Sometimes it does, but by overexposing the jury to the horrors of the plaintiff’s injury day after day, the jury became accustomed to the sight rather than being persuaded by the horror. A more successful approach could have been understating the evidence. Viewing the quadriplegic plaintiff briefly, combined with a viewing of a day-in-the-life film, will cause the jurors to retain the shock of seeing your client.

Properly applied understatement lets the jury use its imagination, and often the horrors that can be unleashed by the imagination are worse than what the actual evidence could show. This is illustrated by the emergence of modern television, which allows the graphic depiction of violence. The horror movies today do not have nearly the impact of the horror movies of twenty or thirty years ago. What we imagine in our minds is far more horrible and devastating than reality. The most significant example of this is Orson Welles’ 1938 radio show about an invasion from Mars, which caused the imaginations of millions of Americans to run wild while the whole nation panicked.

Another startling example of the application of understatement in summation can be illustrated by the effective application of that principle by the late Moe Levine of New York. He was trying a case for a man who had lost both arms. The defendants, the judge, and everyone connected with the case expected a long summation from Mr. Levine about a life with no arms. In fact, his summation was short, simple, and to the point. It was a masterpiece of understatement and resulted in one of the largest verdicts in the history of the State of New York at the time it was given. That brief summation, as paraphrased by Moe Levine himself, is:

Your Honor, eminent counsel for defense, ladies and gentlemen of the jury: as you know, about an hour ago we broke for lunch. And I saw the bailiff came and took you all as a group to have lunch in the juryroom. And then I saw the defense attorney, Mr. Horowitz and his client decided to go to lunch together. And the judge and the court clerk went to lunch. So, I turned to my client, Harold, and said why don’t you and I go to lunch together, and we went across the street to that little restaurant and had lunch. [Significant pause.]
Ladies and gentlemen, I just had lunch with my client. He has no arms. He eats like a dog! Thank you very much.

Sweet, short, simple and to the point. It described the horrible injuries in that admitted liability case and emphasized them far greater by the application of understatement than if Mr. Levine had engaged in a long dialogue about what it is like to have no arms. A point can always be made more effectively and with greater impact when the principle of understatement is applied.

i. Grammatical Inversion – Many of the more persuasive speakers, particularly in our political history, have understood the effective use of grammatical inversion, i.e., displaying words more prominently by inverting the normal quarter of a sentence. In Lincoln’s Second Inaugural, instead of the standard we fondly hope and fervently pray, Lincoln inverted the grammar so as to place more emphasis on the adverbs: “fondly do we hope, fervently do we pray.” We should not only be careful in our selection of the precisely proper and powerful word to use but also discerning in the manner in which we structure the sentences and emphasize the key words.

j. Rhythm – The distinguishing characteristic between an ordinary summation and an eloquent, persuasive summation is that the eloquent speech is replete with rhythm. Rhythm in speech refers to the flow or movement of the language through patterns. The patterns that are used to create the rhythm in speech are rhetorical devices.

From the cradle to the grave, humans respond to rhythm. The rhythm of our breathing, pulse and heartbeat instill patterns into our most essential existence. The psychological effect of rhythm on humans has been understood for centuries as warriors, both ancient and modern, have used the rhythmic beat of the drum to excite the troops and imbue them with the spirit of battle. Rhythmic speech can be used just as effectively as rhythmic music to move an audience emotionally and to capture and hold their attention. We have all sat through the seemingly endless classes of professors who spoke in a monotone, i.e., without rhythm to their speech. Compare the pacing, rhythm and delivery of John F. Kennedy, Martin Luther King or a multitude of other great speakers who understood and brilliantly practiced the art of eloquent speech. Examine closely their speech materials, such as Martin Luther King’s “I Have A Dream” speech or John Kennedy’s “Inaugural Address” and you will see that the starting point of eloquent speech delivery is the material with which the great speakers worked. These two great speeches are included in the appendix to this paper. After reading the section on rhetorical devices, review carefully these two outstanding speeches and notice the manner in which the devices are used brilliantly in order to create a rhythmic speech.

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