Jury Speech Rules: The Art of Ethical Persuasion

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ISBN: 9781601561763
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Jury Speech Rules: The Art of Ethical Persuasion, Second Edition shows trial lawyers that persuasive jury opening statements and closing arguments require imagination, story-telling skills, and a thorough knowledge of the legal and ethical rules that govern this important part of trial. Using famous historical cases and many useful examples, they demonstrate when things go wrong and when they are done right.

Opening statements can present the important facts to the jury from the party's perspective, making the jurors receptive to the story that counsel intends to tell through the witnesses, documents, and visuals; well-constructed and well-delivered openings, which avoid improper argument, make an interesting introduction of the parties and the attorneys. Counsel can keep the other lawyer quiet by presenting an opening that provides no opportunity for interruption with objections. Closing arguments that can present inferences, arguments, and conclusions will help the jurors understand the significance of the facts that have been proven at trial; such arguments can explain the significance of expert testimony; they can point out logical errors in the opponents' stories; and they can win the jurors' by persuading them that the more interesting story--the more natural story, the story that fits their own experiences best--is the truthful story.

Malone and Radler bring it all together here for the busy attorney who does not need a treatise but who does need sound and brief advice. All of the most important rules are covered so that attorneys will feel confident that they are on sound ethical and legal ground. This is a book to keep handy in your trial bag if you are serious about doing it right.

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Table of Contents


Chapter One. Opening Statements

1.1 Seize the Moment

1.2 Be a Storyteller

1.3 Introduce and Establish Your Theme, Then Present Your Theory

      1.3.1 Themes Are Based on Shared, Core Values that Are Part of Our Social Compact

      1.3.2 You Find Themes in Your Community's Common Experience and Rules, Often in What Your Parents Taught You

      1.3.3 There Is a Difference between Your Theme and Your Trial Theory

      1.3.4 Use Visual Aids to Support Your Theme and Theory

      1.3.5 Address Problems in Your Case

1.4 What You Should Not Do

      1.4.1 Do Not Turn Your Opening into a Recitation of What Each Witness Will Say

      1.4.2 Making a Promise in Opening that You Cannot Support with Evidence at Trial Will Haunt You

      1.4.3 You May Not State Facts that You Have No Reasonable Basis for Believing You Can Present Proof at Trial

      1.4.4 Do Not Be Overly Argumentative or Make Legal Arguments

      1.4.5 Do Not Talk Like a Lawyer

      1.4.6 When Representing the Defendant, Never Postpone the Defendant's Opening in a Civil Case; Consider Postponing the Defendant's Opening in a Criminal Case

      1.4.7 Do Not Ask for Specific Sums of Money in Your Opening if You Represent a Plaintiff

Chapter Two. Closing Argument—What You Should Do

2.1 What You Should Do

      2.1.1 Introduce Your Argument Positively

      2.1.2 Argue the Facts and Inferences
      2.1.3 Use Trial Exhibits to Support Your Arguments

      2.1.4 Use Demonstrative Aids Liberally

      2.1.5 Remind the Jurors What the Witness Was Really About

      2.1.6 Argue from the Jury Instructions

      2.1.7 Address the Burden-of-Proof Issue Head-On

      2.1.8 Anticipate the Points to Be Made in Opposing Counsel's Argument

      2.1.9 Tell the Jury What It Is that You Want Them to Do

      2.1.10 Discuss Damages Sensitively

Chapter Three. Closing Argument—What You Can't Do: The Ethics of Closing Arguments, O.J. Simpson, and Lizzie Borden

3.1 State of California v. Orenthal James Simpson

      3.1.1 The Legal Rules Controlling Closing Arguments

               Arguing the Facts and Their Inferences

               Arguing the Credibility of the Witnesses

               Responding to Opponents' Arguments

               Articulating the Public Interest

               Using Dramatic and Unusual Oratorical Devices

               Arguing the Law from the Instructions

               Arguing for Jury Nullification

               Appealing to Sympathy, Prejudice, Bias, Emotion, Passion, or Vengeance

               Counsel May Not Inject Their Own Opinion into the Trial

3.2 Commonwealth of Massachusetts v. Lizzie Borden