Should You Respond to EVERY Argument?

During closing arguments, your opponent may tell the jurors dozens of reasons why they should rule against you.  If you’re like most trial lawyers, you’ll want to address each and every one of those arguments during your opportunity for rebuttal.  But before you do, here’s a quick word of advice:

Don’t.

Responding to every argument is a knee-jerk response that many of us fall trap to.  You do it because you’re afraid that if you don’t counter every point your opponent makes, you’ll give the jurors justification to rule against your client and you’ll set yourself up for a malpractice complaint.  But in practice, not only is there no need to counter every argument, it can actually be detrimental to your case. 

Too many attorneys argue from their heels.  They backpeddle away from the strengths of their cases and respond to their opponent’s case from a defensive posture.  No one ever looks their strongest when they’re on the defensive, yet in courtrooms around the country, that’s exactly how most attorneys are presenting their closing arguments.  For example, when I critique attorneys during their closing arguments, I regularly see this scenario: The plaintiff attorney lists 27 reasons why the defendant is liable.  While he’s arguing, the defense attorney dutifully writes down every single one of those 27 arguments, and then spends the first 30 minutes of his closing argument responding to each and every point.  By the time he’s done responding to the plaintiff’s arguments, the jurors have lost any interest in listening to the rest of his closing argument, and they ignore the strongest arguments in his case.

So why do we do it?

The compulsion to counter every argument probably arose in law school, where you were awarded points for identifying every possible argument, no matter how ridiculous or non-persuasive it might be.  Although issue spotting is a useful exercise for developing your legal skills, it’s a dangerous practice when applied in the courtroom. 

Obviously, you don’t want to take a "wishful thinking" attitude and just hope that the jury ignores your opponent’s points.  If they poked some serious holes in your case, you better get out the duct tape and patch things up before you conclude your argument.  But for the most part, you don’t need to waste your time responding to every attack made against your case.

While it’s important that you counter your opponent’s strongest arguments, it’s also essential that you don’t lend credibility to impotent arguments by validating their existence.  In deciding which arguments to respond to and which ones to ignore, you need to move beyond issue-spotting and begin making the critical decision, "Should I respond to this argument, or should I ignore it?"  When deciding which arguments to ignore and which arguments to rebut, you’ll be evaluating the strength of each argument.  The strength of each argument will be determined by three factors: logical persuasiveness, legal persuasiveness, and emotional persuasiveness.  If an argument compels the jurors on emotional, logical, and legal levels, that’s an argument that probably must be rebutted.  If an argument is logically compelling but has no emotional or legal strength, maybe that’s one that you decide to ignore.

Responding to every argument dilutes the strength of your closing arguments.  Don’t let your opponent lead you down rabbit trails, because those trails never lead anywhere that you want to go.  Instead, stick to the theme of your case, argue your strongest points, and only address the arguments that you need to rebut.  When you do, your closing argument will be more persuasive, compelling the jurors to give you the verdict that your client deserves.

Are You Looking Jurors Squarely in the Eyes?

The fewer obstructions between you and your jurors, the more persuasive you will be.  Yet many trial lawyers purposely place an obstacle between themselves and their jurors.  That obstacle?  Their notes.

Here’s the slippery slope your notes create: The more notes you bring with you to the lectern, the more you will depend upon them.  The more you depend on your notes, the less eye contact you will have with your jurors.  The less eye contact you have with the jurors, the less persuasive you will be.

Look at the jurors, not at your notepadRather than bring copious notes to the lectern, try to bring no more than a one page outline with you.  Write out the main bullet points of your arguments, rather than word-for-word arguments, and you’ll force yourself to spend more time talking with your jury.  Your goal is to use an outline, not a script.  It’s okay to read quotations, it’s okay to read snippets of testimony, but please, don’t read your argument!

Here are a few tips you can use to minimize the amount of notes you bring to the lectern:

Use visual aids instead of an outline. If you use posters or computer images to help the jury follow your closing argument, you can embed your notes directly into your presentation.  Let’s say you have three posters for closing argument, one for each of the three elements you need to prove.  You can use the posters to remind you what point you should argue next.

Add secret messages on your flipchart. If you are using a flipchart, you can write notes to yourself on the flipchart.  If you write the notes in pencil, your jurors will never see your notes.  You can quickly glance at your handwritten note while explaining the flipchart to the jury, and they’ll never know you’re reading from your notes.

Use Presentation Mode in PowerPoint. In presentation mode, your laptop projects images onto two different monitors: the projection screen and your laptop monitor.  The jury only sees the images projected on the big screen.  You, however, see a completely different image on your laptop screen.  On that screen, you can type in whatever reminders you need, so you appear to be presenting without benefit of notes.

PowerPoint slide exampleEmbed secret images into your PowerPoint slides. You can also add secret to your PowerPoint slides.  In the bottom left hand corner of your slide, create a text box and type a few bullet points.  Use a simple font like Arial, and change the font size to 8 points.  At that size, most jurors won’t even see the text.  Their eyes will be focused on your larger text, and won’t look down at your hidden message.

Use bullet points. Rather than use an entire script of notes, condense your arguments to single bullet points.  Try to use fewer than 7 words to describe each of your argument points.  With only a few words written for each point, you’ll be forced to take your eyes off the paper and look at your jurors.

No matter which technique you use, endeavor to become less dependent upon your notes.  Eliminate the barriers between you and your jurors, and you’ll make more frequent eye contact with your jurors.  The more eye contact you make with them, the more persuasive you’ll be.

The Proper Use of Notes During Jury Trials

Great trial lawyers focus on the jury rather than their notes

How many notes do you use during trial?

It’s a delicate balancing act.  Too few notes, and you run the risk of forgetting to address an important element of your case.  Too many notes, and you risk sounding scripted.

Here are a couple of quick tips for improving your use of notes during trial.

When Speaking Directly to the Jury

Look at the jury, not your notesThe importance of eye contact in the courtroom can’t be overstated.  The visible (sometimes barely visible) reactions of your jurors can help you decide whether or not to pursue an argument, whether to follow up on a line of questioning, and whether you need to return to a line of questioning to clear up potential misunderstandings.  You’ll need to pick up on the small non-verbal clues that they’re sending you, and you can’t do that if your head is buried in your notes.  Are they telling you to speed up?  To slow down?  Are they confused?  Bored?  Do they need part of the testimony repeated?  If you don’t look at them and read those clues, you’ll never know.

Make sure that you’re making eye contact with who you want to persuade.  Since you’re trying to persuade the jurors, rather than your legal pad, try to minimize how much time you spend looking at your notes.

When Speaking to a Witness

Jurors take their clues from you about how they should treat witnesses.  If you act like a witness is important, jurors are more likely to think the witness is important.  If you act as if the witness’s testimony doesn’t matter, they’re more likely to dismiss what he says, regardless of its actual importance.

When you look at your notes instead of making eye contact with the witness, it’s not only rude, it sends a message that you don’t care what he has to say and that his answers don’t matter.  To avoid sending the wrong message to your jury, look up from your notes and make eye contact with the witness before asking your question, and finish listening to his answer before you look down at your notes for your next question.  You can even hold eye contact with the witness for an additional moment after he finishes answering, to show that you’re paying close attention to what he’s saying and encourage the jury to pay more attention, too.  Just don’t stare at him, because it will make him feel uncomfortable and he’ll look uneasy on the stand.

Minimizing Your Notes

NotesIt’s okay to write out your arguments or questions word-for-word when you’re preparing for trial, so that you know what you want to accomplish.  But don’t make the mistake of bringing those scripts up to the lectern.  Those notes will become a mental crutch, and your eyes will never leave the page.

Anyone can read from a script.  With a well-scripted direct or cross-examination, you could pick someone off the street, send him into court with the script, and let him conduct the examination.  He’d do fine, right up until the point when one of the witness’s answers went off-script.  Then he’d be completely lost, and would have no idea what to do next.

Unlike trials on TV or in the movies, real trials don’t stick to a script.  Trial lawyers who depend on scripted examinations don’t always react very well when the unexpected happens.  That’s why, the fewer notes you bring to the lectern, the more freedom you enjoy.

When preparing the notes that you’ll bring to court, instead of writing out a word-for-word script, write down only what you need.  Rather than full sentences, use brief phrases or single words.  Besides, when you’re in the heat of trial, your eyes won’t easily focus on full sentences like “Mrs. Johnson, would you please tell us how you know the defendant?”  All you’ll really need is a quick reminder, like “RELATIONSHIP?” or “KNOWS DEFENDANT?” to prompt the correct question.

Make it Easy on the Eyes

Finally, if you want to minimize your time spent looking at the page and maximize your eye contact with the jury, it will help if your notes are easy to read.  To reduce how much time you need to look at the page, don’t rely on your chicken scratch handwriting.  Instead, type up your notes (preferably in 18pt or 24pt type) with a simple sans serif font.  You’ll be able to glance down at your notes for an instant, absorb the idea, and then immediately return to making eye contact with your jurors or your witness.  With a little practice and preparation, the jurors won’t even notice your use of notes, they’ll just focus on the strength of your case!