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Home , Gerry Spence, Guts (The Walking Dead), Trial advocacy

Timeless Advocacy Lessons from the Masters

H. Mitchell Caldwell† Janelle L. Davis††

Abstract This Article discusses seven key lessons to be learned from master advocates. By providing famous examples of their application in practice, the authors demonstrate that these lessons are essential to acquiring winning for your client.

Introduction

Great advocacy knows no time. From the agrarian society of eighteenth century America when future President John Adams repre- sented the British Redcoats accused of the Boston Massacre,1 to the early twentieth century when Clarence Darrow saved Leopold and Loeb from the gallows,2 and on through the latter half of the twentieth century when

† B.A. (1972), California State University Long Beach; J.D. (1976), Pepperdine University School of . H. Mitchell Caldwell is a law professor at Pepperdine Uni- versity School of Law and teaches in the areas of trial advocacy, , and . He has published extensively in his subject areas including his work as co-author of the acclaimed LADIES AND GENTLEMEN OF THE series which included Ladies and Gentlemen of the Jury, And the Walls Came Tumbling Down and The Devil’s Advocates, published by Scribner/Simon & Schuster. He is also a co- author of THE ART AND SCIENCE OF TRIAL ADVOCACY (2d ed. 2011). †† B.S. (2004), Texas Christian University; J.D. (2007), Pepperdine University School of Law. Janelle Davis is an associate at Thompson & Knight LLP in Dallas, Texas, where she represents clients in state and federal proceedings. Her practice focuses on matters involving complex commercial litigation, products liability, and toxic . The authors acknowledge the Pepperdine Summer Grant Program and the efforts of Lacey Gray. 1 See Terry Votel, A Proud Tradition: Representing the “Unpopular Cause”, 68- APR & B. MINN. 7 (2011). Adams believed “that Captain Preston and the British soldiers deserved [an] effective .” Id. As a result, he took on the case and Captain Preston, as well as six of the eight soldiers, were acquitted when Adams “cast doubt as to whether Preston gave orders to shoot.” Id. The two remaining soldiers, “who were proven to have fired their weapons, were convicted of manslaughter [and t]heir punishment was to have their thumbs branded.” Id. 2 See Edward J. Larson, An American Tragedy: Retelling the Leopold-Loeb Story in Popular Culture, 50 AM. J. LEGAL HIST. 119 (2010). The young and intelligent duo 20 AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 35:19

Gerry Spence laid low a nuclear energy giant,3 master advocates have plied their craft. And it remains for contemporary trial to study their work, to learn from the masters, and hone their own trial advocacy skills. It is to this goal that this exercise strives. Eighteenth century agrarian America is a far stretch from the “instant access” society of the twenty-first century,4 yet certain fundamental axioms of advocacy hold true. And even though attention spans have shrunk for most Americans, from the time of Darrow’s twelve-hour in defense of Leopold and Loeb to the time between television commercials,5 advocacy at its highest level remains a potent tool not to be relegated the dusty tomes of history. While the successes of the masters were often a function of charis- matic and intellectual qualities unique to themselves, there are certainly lessons to be garnered and skills to be emulated. This Article explores pleaded guilty to the murder of thirteen-year-old Bobby Franks, motivated not by money from ransom, but rather by the thrill of committing and getting away with the perfect . See id. at 130-32, 143. Their wealthy families hired Clarence Darrow, known for being an opponent of the death penalty, to save from hanging. Id. at 128-29. an incredibly compelling argument on the part of Darrow, the boys’ lives were spared. Id. at 143. They were sentenced to life in prison plus an additional ninety-nine years. Id. 3 See Philip N. Meyer, Making the Narrative Move: Observations Based Upon Reading Gerry Spence’s Closing Argument in The of Karen v. Kerr- McGee, Inc., 9 CLINICAL L. REV. 229, 234-35 (2002). Silkwood was an employee at Kerr-McGee’s factory who made claims that she was exposed to hazardous materials due to the company’s failure to follow necessary safety protocols. Id. Silkwood died in a car accident on the way to a meeting with a reporter from , in which she intended to expose the company’s wrongdoings. Id. at 235. Silkwood’s father, represented by Gerry Spence, brought suit against the company on behalf of Silkwood’s children and family. Id. After Spence’s famous closing argument, the jury awarded $10.5 million to Silkwood’s family. Id. 4 See NEIL POSTMAN, AMUSING OURSELVES TO DEATH: PUBLIC DISCOURSE IN THE AGE OF SHOW BUSINESS 3 (1986); see also SOCIETIES AND CITIES IN THE AGE OF INSTANT ACCESS 3-4 (Harvey J. Miller ed., 2007) (“At the dawn of the 21st century, accessibility is undergoing dramatic, epoch-making changes. We are on the verge of the ‘second information revolution,’ based on near-ubiquitous access to computing, information and people through portable and wireless information and communication technologies (ICTs). . . . We can already see changes created by the technologies of instant access. New possibilities for interaction created by mobile phones and the wireless Internet are making cities more dynamic, decentralized and complex.”). 5 RUDOLPH F. VERDERBER ET AL., THE CHALLENGE OF EFFECTIVE SPEAKING 38 (18th ed. 2008) (“Not only does the gap between speaking rate and processing create opportunities for inattention, but research suggests that the average attention span for adults today is twenty minutes or less.”). 2011] TIMELESS ADVOCACY LESSONS FROM THE MASTERS 21 seven of those lessons that have application to the efforts of those who labor in the trenches of trial advocacy.

I. Develop a Tight and Compact Theory of the Case

Theory of the case—an arcane phrase, if ever there was one. It is a phrase that is often overlooked; yet, it embodies a significant component of any case presented at trial.6 Master advocates recognize, perhaps intuitively, that a sound theory of the case is the fountainhead from which the successful flow of the trial proceeds.7 The theory of the case must be compact, pithy, and easily understood.8 When preparing for trial, master advocates understand that they need to take the that will be presented and construct both a factual and legal theory of their case.9 The factual theory is their view of what happened and why,10 while the legal theory is their view of why these

6 Anthony J. Bocchino & Samuel H. Solomon, What Want to Hear: Methods for Developing Persuasive Case Theory, 67 TENN. L. REV. 543, 548 (2000).

[L]awyers should have anticipated what the jury might consider in its decision making. It is for the to anticipate what the jury needs to hear and how the jury needs to hear it in a particular case in order to decide the case comfortably. This process involves choosing an appropriate theory of the case and presenting it in a way that is palatable to the jury. The modern litigator’s arsenal should include those techniques designed for selecting appropriate case theories, for testing those theories, and then for making the theories understood at both an intellectual level and a psychological level through the use of illustrative exhibits or computer technology.

Id. at 543. 7 See id. at 543-44. 8 Id. at 546. 9 Id. at 545. “[I]n developing effective factual theory, it is vital to remember that not only are the facts themselves important, but so is the perception of facts that will drive factual theory.” Id. It is imperative for advocates to recognize that “the reality of the facts and the common perception of them will [often] be at odds, and it is the [sic] for the lawyer to reconcile reality and the perception of reality for effective factual .” Id. 10 Id. “Factual theory defines what the facts of the case really are. The factual theory answers the question, ‘What really happened in the case and why?’ There can be several factual theories that evolve out of the same fact pattern presented pre- discovery.” Id. 22 AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 35:19 facts are legally sufficient to state their claim or defense or rebut their opponents’ claim or defense.11 Master advocates excel at the art of encapsulating their legal and factual theories of the case into and concise language. In his successful suit against Kerr-McGee,12 a nuclear processor, Gerry Spence very precisely set forth his legal theory of the case:

What is the case not about? The case is not about being against the nuclear industry. You will never hear me say that I stand here against the nuclear industry—I do not. But it is about being responsible, about responsible progress. . . . And without the truth, the progress that we all need, and want, can’t be had. It is that simple—that is what the case is not about.13

In this tight, short paragraph, Spence asserted that the defendant corpora- tion failed to act responsibly as it went about its business and as such, it should be held accountable.14 Spence also clearly set forth what the case was not about. He recognized that a broad assault against industry, specifically the nuclear industry, was not essential to successfully prose- cuting his action. He narrowed his legal theory of the case to one notion: responsibility. Since this company was in this dangerous business, it had an obligation to carry on that business in a responsible manner.15 Every

11 Id. at 547.

The potential legal theories of the case evolve in the same way the factual theories evolve. After the initial client interview, and through the use of classic legal research techniques, potential legal theories of the case will suggest themselves based on the facts communicated by the client. Additional sources for potential legal theories are other lawyers in the , “how to” reference books organized by substantive law categories, or perhaps a former professor or classmate known to have intimate knowledge of the area of the law involved. For a defendant, an obvious source for potential legal theory is the ’s complaint, which at the very least sets out the plaintiff’s view of the legal basis for deciding the case. Of course, defendants must answer a plaintiff’s claims on the law, but they are otherwise free to assert their own legal positions through affirmative defenses, cross-claims, and counter-claims.

Id. 12 See Meyer, supra note 3, at 235. 13 MICHAEL S. LIEF ET AL., LADIES AND GENTLEMEN OF THE JURY: GREATEST CLOSING ARGUMENTS IN MODERN LAW 131 (1998). 14 See Meyer, supra note 3, at 243-44. 15 See id. at 238. In accident cases, jurors’ decisions often implicate two possi- bilities: 2011] TIMELESS ADVOCACY LESSONS FROM THE MASTERS 23 thing else Spence sought to accomplish throughout the trial came down to establishing the company’s irresponsible conduct. From his opening statement, through every direct and cross examination, and concluding with his summation, Spence focused on establishing this concise theory of the case. Clarence Darrow made his unparalleled and masterly closing argument on behalf of Dickie Loeb and Nathan Leopold to the sitting without a jury.16 The judge would decide whether Darrow’s clients would be hanged. Darrow boiled his case theory down to the unreasonableness of executing the men:

I have heard in the last six weeks nothing but the cry for blood. I have heard from the office of the state’s attorney only ugly hate. I have heard quoted which would be a disgrace to a savage race. I have seen a court urged almost to the point of threats to hang two boys, in the face of science, in the face of philosophy, in the face of humanity, in the face of experience, in the face of all the better and more humane thought of the age.17

Guilt had already been established by the defendants’ pleas and Darrow had waived a jury on the issue of sentencing, so his theory was focused solely on one man: the judge.18 His theory of the case appealed to every noble notion of mankind in stark contrast to the ’s shrill calls for execution. Darrow’s theory focused on the idea that executing his clients would serve no legitimate purpose, and instead would cater to only the most inhuman instincts.19

First, jurors are likely to assume that accidents do not happen unless someone was negligent. Second, they are likely to attribute causation (and, hence, fault and responsibility) on the basis of the parties’ personal dispositions to decide that [the party] acted as he did because “he’s that kind of guy.”

NEAL FEIGENSON, LEGAL BLAME: HOW JURORS THINK AND TALK ABOUT ACCIDENTS 59 (2001). 16 See ALVIN VICTOR SELLERS, THE LOEB-LEOPOLD CASE 118-213 (2003). 17 LIEF ET AL., supra note 13, at 166. 18 See Larson, supra note 2, at 139, 143 (“Darrow’s plea worked. Attributing the murder to the abnormalities of the defendants and citing their youth as his justification, rather than impose the death penalty, Judge Caverly gave both Leopold and Loeb life sentences for murder plus separate prison terms of ninety-nine years for kidnapping.”). 19 LIEF ET AL., supra note 13, at 173. In his plea for the boys’ lives, Darrow eloquently stated: 24 AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 35:19

In 1945, Robert Jackson stepped aside from his responsibilities as an Associate of the United States Supreme Court to become the Chief Prosecutor at the Nuremberg of the Nazi hierarchy.20 Jackson faced a formidable challenge given the overwhelming nature of the and the sheer volume of materials gathered in preparation for trial.21 It would have been understandable for a lawyer to become lost in the sheer enormity of the crimes themselves. If any case ever needed a compact and focused theory, this was it. But Jackson was up to the challenge and was able to hone his message:

We are not trying them for possession of obnoxious ideas. It is their right, if they choose, to renounce the Hebraic heritage in the civilization of which Germany was once a part. Nor is it our affair that they repudiated the Hellenic influence as well. The intellectual bankruptcy and moral perversion of the Nazi regime might have been no concern of had it not been utilized to goose-step the Herrenvolk across international frontiers. It is not their thoughts, it is their overt acts which we charge to be crimes. Their creed and teachings are important only as evidence of motive, purpose, knowledge, and intent.22

Mr. Savage, with the immaturity of youth and inexperience, says that if we hang them there will be no more killing. This world has been one long slaughterhouse from the beginning until today, and killing goes on and on and on, and will forever. Why not read something, why not study something, why not think instead of blindly shouting for death?

Id. at 173-74. 20 Henry T. King, Jr., Robert Jackson’s Vision for Justice and Other Reflections of a Nuremberg Prosecutor, 88 GEO. L.J. 2421, 2423 (2000). 21 Id. at 2424-26. Prior to the Nuremberg Trials, no case of its magnitude had ever been attempted. Id. at 2426. Preparation was massive and included negotiations with other countries, determining what and who to charge, and other vital details of the trial. Id. at 2423-25. The excessive number of war crimes that occurred made leading the prosecution exceedingly challenging. Id. at 2424-25.

Jackson envisioned Nuremberg to be a landmark for the world to follow. He wanted to make sure that the principles established at the trial were to be all- encompassing. The charges against the Nazis were not intended for limited application; they were to apply to Jackson’s own countrymen as well as to the Nazis in the dock. The trial weighed, for the first time in a truly international forum, the substitution of law for force in governing human relationships. No other litigation could match Nuremberg in its ambitious scope. In his prosecution, Jackson’s passion and eloquence arose to the importance of the events surrounding him.

Id. at 2427. 22 See LAW: A TREASURY OF ART AND LITERATURE 227 (Sara Robbins ed., 1990). 2011] TIMELESS ADVOCACY LESSONS FROM THE MASTERS 25

In complex trials such as the one confronting Jackson, it is perhaps as critical to inform the jurors what the trial is not about as it is to state what it is about. As repugnant as the Nazi rhetoric was, it certainly was not the basis for the prosecution. As Jackson so bluntly said, “It is their overt acts which we charge to be crimes.”23 The theory of the case could not be more clear, and throughout the arduous months of trial, Jackson and his fellow focused on those overt acts. Note that in all three trials, the theory of the case was boiled down to a single point—Spence’s theory that industry must act responsibly; Darrow’s argument that executing his clients served no legitimate ends; and Jackson’s focusing on the actual overt acts rather than succumbing to the Holocaust rhetoric. Each master advocate recognized that successful trials are the product of crisp and focused legal and factual theories.24

II. Develop a Memorable and Universal Trial Theme

While the theory of the case embodies the facts and law and encapsu- lates the overall trial strategy, the universal theme is what advocates use to appeal to the jury’s sense that the case is tied to some larger truth.25 The trial themes of master advocates are derived from universally-held beliefs that are not controversial; rather, they resonate with everyone.26

23 See LIEF ET AL., supra note 13, at 26. 24 David Velloney, The Art of Trial Advocacy, 2002 ARMY LAW. 54, 54-55 (2002). A case theory is merely “a logical and persuasive adaptation of the story to the legal issues in the case.” Id. at 54. To be successful, a case theory must first be logical. Id. In other words, “‘[i]t must be consistent with the credible evidence and with the jury’s perception of how life works.’” Id. at 54-55. The facts supporting an effective and persuasive theory will reinforce each other.” Id. at 55. In addition to being logical, a successful theory also “speaks to the legal aspects of the case” so that it proves each element of the charged offense in a criminal case. Id. And finally, “a good theory is simple and easy to believe.” Id. It “should rely on undisputed evidence, and trial should strive to eliminate all implausible or questionable aspects of the theory.” Id. 25 DOUGLAS S. LAVINE, CARDINAL RULES OF ADVOCACY: UNDERSTANDING AND MASTERING FUNDAMENTAL PRINCIPLES OF PERSUASION 175-76 (2002). 26 Edward J. Imwinkelried, The Development of Professional in Law School Litigation Courses: The Concepts of Trial Theory and Theme, 39 VAND. L. 26 AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 35:19

Tying one’s case to a theme that everyone recognizes and agrees with encourages jurors to buy into that sense of fairness and justice and is the backbone of any successful trial strategy.27 What could be more universal and compelling than characterizing one’s clients as righteous rebels against an unjust system?28 That was William Kunstler’s theme in defending the Chicago Seven, who were charged with conspiracy to cross state lines to incite a riot.29 In 1968, the Democrats convened in Chicago to nominate their presidential candidate.30 Against the backdrop of antiwar protests and the assassinations of Robert Kennedy and Martin Luther King, Jr., the Democratic National Convention was an explosion waiting to happen.31 Kunstler’s clients were the outspoken leaders of the antiwar movement and they had mobilized to “demand a candidate who would end the

REV. 59, 63-64 (1986). The case theme “should relate to the pivotal element of the theory” and “embody the attorney’s most convincing argument on that element.” Id. at 64. More specifically, “[t]he theme should incorporate the best common sense argument for prevailing on the pivotal element. It is the argument to which the attorney hopes the jury will resort during deliberation in order to counter the opponent’s most damning evidence on the central issue.” Id. (citation omitted); see also L. TIM OTHY PERRIN ET AL., THE ART AND SCIENCE OF TRIAL ADVOCACY 41 (2003). 27 LAVINE, supra note 25, at 175-76. 28 JOHN SCHULTZ, THE CHICAGO CONSPIRACY TRIAL 181 (De Capo Press 1993) (1972). “During the defense’s case, witnesses who testified about riotous actions in the streets described attack and police brutality. Unlike Rights in Conflict, they reported few, if any, provocations by young rebels.” Id. 29 Stephanie B. Goldberg, Lessons of the ’60s: ‘We’d Do It Again,’ Say the Chicago Seven’s Lawyers, 73 A.B.A. J. 32, 32-33 (1987).

The trial arose out of the violence at the 1968 Democratic Convention, when 10,000 youths came to Chicago to demonstrate against the war in Vietnam. Denied permits to assemble and camp in the parks, the protestors took to the streets. The police responded with an orgy of head bashing that was relayed via television to the American public. Afterward, eight activists were indicted on charges of violating and of conspiring to violate the Anti-Riot Act of 1968, 18 U.S.C. §§ 2201 and 2202. It was the first prosecution under the act, passed after Newark erupted in violence following the assassination of Martin Luther King. The act made crossing state lines with intent to incite a riot a felony punishable by five years of imprisonment, a $10,000 fine or both.

Id. 30 Id. at 32. 31 Id. at 32-33. 2011] TIMELESS ADVOCACY LESSONS FROM THE MASTERS 27 war.”32 Chicago Mayor Richard Daley, who was not about to allow the protestors to disrupt the convention, “gave his police shoot-to-kill orders to quell any rioting.”33 Thousands of protestors gathered in Lincoln and Grant Parks and were met with tear gas and clubs.34 The clashes were brutal and bloody; someone had to be accountable.35 In establishing his “righteous rebel” theme, Kunstler quoted Clarence Darrow: “When a new truth comes upon the earth, or a great idea necessary for mankind is born, where does it come from? . . . It comes from men who have dared to be rebels and think their thoughts, and their faith has been the faith of rebels.”36 Kunstler’s theme was indeed the backbone of his trial as he repeatedly analogized his clients to the patriots of the American Revolution.37 The simple theme was straightforward and Kunstler stayed on message throughout the trial. In his masterful prosecution of the assassin of civil rights leader Medger Evers, Bobby DeLaughter confronted an almost overwhelming obstacle. The assassin, Byron De La Beckwith, had ambushed Evers in 1963 and was tried twice the following year, only to have two all-white juries unable to reach a verdict either time.38 Thirty-one years later, a new witness surfaced—an ex-Klan member willing to testify that De La

32 LIEF ET AL., supra note 13, at 104. 33 Id. 34 SCOTT P. JOHNSON, TRIALS OF THE CENTURY: AN ENCYCLOPEDIA OF POPULAR CULTURE AND THE LAW 441-42 (2010). Over the several days during and leading up to the convention between August 24, 1968 and August 29, 1968, police met thousands of protestors, who refused to clear the parks after hours, with violence including tear gas and clubs. Id. 35 LIEF ET AL., supra note 13, at 104. 36 THE CONSPIRACY TRIAL 564 (Judy Clavir & John Spitzer eds., 1970). 37 Id. at 511. Kunstler and Leonard Weinglass, co-counsel for the defense, called an American History teacher as an expert on the American Revolution. Id. at 509. The teacher testified that “[i]t seemed to American colonists in 1770 the Government was not yet sufficiently oppressive to justify revolution and yet the times called for something far more than the mere writing of articles and holding of rallies.” Id. at 511. 38 Joseph W. Gill, Mississippi Justice at Last: The Trials and Convictions of Beckwith, Bowers and Killen, 41-AUG PROSECUTOR 26, 27 (2007). Deliberations in Beckwith’s first trial lasted for eleven hours with the jurors voting twenty times before giving up. Id. Just a few months later, Beckwith was tried again “with nearly the same evidence as was presented in the first trial by both sides; however, a new witness surfaced for Beckwith which enabled the defense to argue that Beckwith was the victim of mistaken identity. After a two-day deliberation, the jury was deadlocked again . . . .” Id. 28 AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 35:19

Beckwith had boasted of getting away with murder.39 Armed with this testimony, DeLaughter initiated a third effort to convict the assassin. The passage of time, however, presents significant problems: memories fade and witnesses disappear. And even when available, a witness’s testimony likely does not mirror the original testimony, rendering the witness vulnerable during cross-examination. Also, because so much time had actually passed, DeLaughter had the burden to make this prosecution meaningful and relevant to his jurors rather than allowing this trial to be viewed as some tired old problem from the pages of a best-forgotten history. Furthermore, De La Beckwith had become an old man whose age had most likely rendered him harmless, raising the question of “why even bother?” Against this backdrop, DeLaughter crafted his theme:

And it doesn’t say “unless you find that this offense was committed over thirty years ago.” Because you see, ladies and gentlemen, what we’re talking about here, this type of offense, this type of murder, this assassination by a sniper from ambush, is something that’s timeless.40

A theme with universal appeal. Murder is murder. And especially such a vile murder: an ambush by a sniper. Such acts are indeed timeless even when justice is long awaited. DeLaughter was able to use this succinct theme to secure De La Beckwith’s conviction and right a very old wrong. Clarence Darrow’s theme in his own defense against a bribery charge was also straightforward. He portrayed himself as the victim of a corrupt system:

I am not on trial for having sought to bribe a man . . . . No man is being tried on that charge. I am on trial because I have been a lover of the poor, a friend of the oppressed, because I have stood by labor for all these years, and have bought [sic] down upon my head the of the criminal interests in this country. Whether guilty or innocent of the crime charged in the indictment, that is the reason I am here, and that is the reason that I have been pursued by as cruel a gang as ever followed a man.41

39 BOBBY DELAUGHTER, NEVER TOO LATE: A PROSECUTOR’S STORY OF JUSTICE IN THE MEDGAR EVERS CASE 264-65 (2001). “Dick Davis’s role as an informant for the FBI had begun soon after he had attended a Klan meeting with a friend in Plant City, Florida. Although his friend joined that night, Davis did not.” Id. at 264. 40 Id. at 282. 41 LIEF ET AL., supra note 13, at 72. 2011] TIMELESS ADVOCACY LESSONS FROM THE MASTERS 29

Darrow’s characterization of himself as a victim of a corrupt system appeals to the universal sense of right and wrong. And like Kunstler and DeLaughter, Darrow effectively boiled his case down to a concise, identifiable universal theme. Perhaps one of the best lessons we can learn from master advocates is the importance of a theme. An identifiable, universal theme ties the advocate’s case to a larger truth and guides the jury’s decision-making process. The universal theme allows jurors to feel like they are part of something important, and no case is complete without one.

III. Seek the High Ground— Battle From a Position of Strength

There are a number of approaches to presenting any case, and there is never only one choice. For instance, in Clarence Darrow’s own criminal trial in which he was accused of bribing a juror, Darrow had two options: he could defend himself by attempting to discredit those who allegedly saw him bribe a witness or he could mount an assault against big industry by maintaining that they were behind the prosecution because of Darrow’s long record of supporting organized labor. The former tactic was perilous in that it appeared from the evidence presented at trial that Darrow may well have bribed a juror.42 Given the strength of the state’s case, Darrow’s most advantageous option was to turn the trial into a referendum on the labor movement and vilify big industry.43 This also avoided the sometimes tenuous approach

42 See Gerald F. Uelmen, Fighting Fire with Fire: A Reflection on the Ethics of Clarence Darrow, 71 FORDHAM L. REV. 1543, 1543 (2003). Uelmen suggests that Darrow himself all but admitted he did participate in bribery to even the playing field, noting that Darrow testified:

Of course, I did not pass $500 in the elevator, but if I had, I had just as much right to give that $500 for that purpose as I would have to buy $500 of hogs, just exactly. I was doing exactly what they were doing, what Burns admitted he was doing, what was done in all their cases, what Sam Browne says they did, when he testified that they filled our office with detectives.

Id. 43 Id. at 1544 (“The jury acquitted him in the face of overwhelming evidence of guilt, strongly suggesting that they agreed with his argument that his underhanded techniques were no worse than the underhanded techniques of his opponents.”). 30 AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 35:19 of attacking witnesses who may be well liked by the jury.44 Darrow’s guilt or innocence aside, his high ground was to focus on the broader question of the large industrial interest unfairly attempting to silence a long-standing, forceful advocate of the common working man.45 And as discussed above, he used this approach to portray himself as the victim of a corrupt system.46 Defense attorney Donald Re used the same approach in his defense of John DeLorean. In the early 1980s, DeLoren started the DeLorean Motor Co., an auto company, but quickly ran into financial difficulties.47 In an effort to address the company’s financial problems, DeLorean began meeting with individuals whom he thought were drug smugglers, looking to invest millions of dollars in drugs.48 What DeLorean did not know was that these supposed drug smugglers were actually federal agents, and the meetings were recorded.49 The evidence in the govern- ment’s case against DeLorean seemed insurmountable—after all, the prosecution had tapes of DeLorean inspecting a suitcase filled with cocaine and toasting the success of the deal.50 Recognizing that they could not allow the prosecution to set the tone for the trial, DeLorean’s defense attorneys approached the case with an eye toward demonizing the federal government.51 Instead of responding to the prosecution’s attempts to focus on the tapes as well as DeLorean’s actions and motivations, Re made it clear in his closing argument that

44 See Matthew D. Keenan, How Nice Guys Finish First, 76 DEF. COUNS. J. 365, 366 (2009) (noting that jurors are not persuaded by attacking witnesses). Keenan discusses the debate between lawyers who act as “pit bulls” and those who are likeable. Id. According to Keenan, “juror surveys confirm that ‘aggressive behavior . . . gives rise to predominately negative impressions . . . . People like to be led, not pushed. An aggressive, in-your-face, dominant approach is seen as an effort to achieve with force what cannot be achieved with reasoned, caring, and honest behavior.’” Id. (citation omitted). 45 Uelmen, supra note 42, at 1543. 46 Id. 47 LIEF ET AL., supra note 13, at 305. 48 Id. 49 Id. 50 Id. at 306. 51 Id. at 310-11. 2011] TIMELESS ADVOCACY LESSONS FROM THE MASTERS 31 the federal agents were concerned only with the fame and glory they would receive after arresting DeLorean.52 Re argued:

After September 28, we have heard about a little party the agents had. We hear a toast about Time magazine, “We will all be in Time magazine.” Toasting at the cost of John DeLorean’s reputation. The sad part, ladies and gentlemen, while these people are toasting and partying, no one asked, “What does this man really want to do?” Who was it among them that bothered to listen to these tapes closely, who bothered to listen to what DeLorean was talking about? None of them did because none of them really cared, not the agents, not the informants, not the supervisor; no one cared. What they cared about was that they had a tape that they could play to the jury from which they could argue that DeLorean was guilty, whether or not he was.53

He also pointed out the problems with the government’s investigation:

These agents didn’t bother to record the July eleventh meeting. They didn’t bother to check out inconsistencies of Mr. Hoffman’s statements or find out about unrecorded calls or the contents of those calls until later. They didn’t bother to write reports about much of the case, didn’t bother to write reports about what Hoffman told them, didn’t bother to check out the IRA state- ments. They didn’t bother to check out the value of the collateral to find out if it was worthless, didn’t bother to find out the nature of DHCA and DCML, and didn’t know the difference. They allowed Hoffman to talk with DeLorean alone to determine his intent.54

Rather than allowing the prosecution to make the trial all about DeLorean and the tapes, Re put the federal agents on trial. He emphasized their lies and gave a closing argument that refocused the case in a way that was more advantageous for DeLorean’s defense. And it worked—the jury acquitted DeLorean despite the tapes.55 Darrow and Re both understood and put into practice the ability to battle, not from a position of weakness, but from a position of strength. Instead of letting their opponents set the tone, master advocates take

52 Id. at 311. 53 Id. 54 Id. at 343. 55 Id. at 311. 32 AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 35:19 charge. They focus their juries on the facts from their perspective, and in doing so, they minimize the weaknesses in their case.

IV. Find and Exploit the Pathos

Jurors are instructed to render their on the facts presented and the applicable law using their collective logic, reason, and common sense.56 Yet despite such admonitions, emotions are almost invariably a factor.57 Those very human qualities we rely on to bring logic and reason into the equation are so difficult to completely divorce from sympathy, pity, empathy, and anger.58 Failure to recognize this most

56 HEURISTICS AND THE LAW 309 (Gerd Gigerenzer & Christoph Engel eds., 2004) (explaining that “[j]udges often instruct jurors to use ‘reason and common sense’ to draw conclusions from the evidence that they have heard”); see also Janelle L. Davis, Comment, Sticks and Stones May Break my Bones, but Names Could Get me a Mistrial: An Examination of Name-Calling in Closing Argument in Civil Cases, 42 GONZ. L. REV. 133, 141 (2006) (noting that juries must base their verdicts on the facts rather than “any irrelevant passions or prejudices”). 57 Erin Ryan, The Discourse Beneath: Emotional Epistemology in Legal Delib- eration and Negotiation, 10 HARV. NEGOT. L. REV. 231, 234 (2005).

Indeed, lawyers are routinely asked to negotiate the vexing, layered, and often emotionally-charged problems that others have finally relinquished to the care of professionals. Much of the stuff of these problems can be articulated in terms of rights and duties, statutory rules and remedies, costs and benefits, profits and losses. But within the pores of these dispassionate analyses lurk the lost child and the quivering voice, the full scope of the client’s need and history-fed bitterness over disputed boundaries. In contemplating the root cause and ricocheted effects of legal problems, and in managing the matrices of human interaction that arise in negotiated attempts to solve them, lawyers rely on an inductive process of knowing that is driven as much by emotional sense as it is by more dispassionate logics.

Id. 58 Todd E. Pettys, The Emotional Juror, 76 FORDHAM L. REV. 1609, 1612-13 (2007).

The long-standing dichotomy between emotions and rationality in the law, and the ethical quandaries that arise from it, stand in marked contrast to the growing conviction in other disciplines that emotions and rationality are inextricably—and usefully—linked. Over the past quarter century, philosophers, psychologists, and neuroscientists have become increasingly convinced that there are ways in which emotions serve the cause of reason to such a significant extent that rational decision making often would be impossible without them. Philosopher Patricia Greenspan observes, for example, that modern philosophers are working to identify “an integral role” that emotions play when a person rationally chooses a course of 2011] TIMELESS ADVOCACY LESSONS FROM THE MASTERS 33 volatile component of the human decision-making process can be fatal to an advocate’s position. It is unfortunate that the training future trial lawyers receive in law school is so focused on appellate decisions where the dramatic stories that played out at trial have often been drained from the case, leaving only questions of law.59 No one can, of course, be dismissive of the law, but to view trials only through that detached and cerebral perspective is to miss precisely what the jurors are experiencing when they take in the evidence. Trials cannot be clinical; trials involve flesh and blood individuals frequently caught up in serious, complicated, and dramatic events in which loyalties, loves, hates, lies, prejudices, and the whole spectrum of emotions play a part.60 Jurors, often relying only on emotion, may well climb on board with one of the parties and view events from that vantage point.61 The masters not only recognize the human drama in every trial, they exploit it to their own successes. Captain Aubrey Daniel was a master trial lawyer who utilized that essential component in his prosecution of Lieutenant William Calley, Jr. for the wartime massacre of 102 Vietnamese civilians.62 The trial preparation involved a complex undertaking due to the existence of over 100 witnesses.63 It brimmed with intricacy and nuance. It would be

conduct. Philosopher Ronald de Sousa writes that “the calculi of reason . . . would be powerless in their own terms, except for the contribution of emotion.” Philoso- pher R.T. Allen rejects the historic separation of a passive, emotional self from an active, rational self, and argues instead “that there is no mere passivity and no pure activity in human life, but that each necessarily involves the other.” Philosopher and psychologist Yaniv Hanoch insists that “[i]ntellectual reasoning without emotions . . . seems to be next to impossible.” Arguing that emotions play an essential role in the reasoning process, neuroscientist Antonio Damasio criticizes René Descartes and others for sharply separating “the most refined operations of the mind from the structure and operation of a biological organism.”

Id. (citations omitted). 59 Ellen A. Peters, Reality and the Language of the Law, 90 YALE L.J. 1193, 1194 (1981) (noting that, due to the nature of our legal system, students are learning from scant, second-hand facts provided in appellate opinions). 60 Pettys, supra note 58, at 1612-13. 61 Id. at 1632 (“In addition to the emotions associated with cognitive dissonance, jurors often will experience emotions directly in response to particular items of evidence. These evidence-triggered emotions will exert a powerful influence on the narrative options that the jurors construct and evaluate.”). 62 LIEF ET AL., supra note 13, at 350-53. 63 Id. at 350. 34 AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 35:19 understandable for Daniel to be caught up in proving or disproving theories and justifications such that the victims, and indeed, the dirty business of mass murder, would become relegated to a distant memory. Cognizant of such a trap, Daniel forced the trial back to the grisly reality of death by searing the images of the massacred victims into the minds of the jurors.64 His intent was clear—if any juror might have been inclined to favor the defense theory, they would have to take a very deliberate step over the bodies of the victims. In one vivid image during Daniel’s closing argument, he described how Calley “picked up the child, threw it in the ditch, and without hesitation, gentlemen, without hesitation, he raised his weapon and looked down, and he fired. . . . He just pulled that weapon up and squeezed that trigger, and that baby was at the end of that barrel.”65 He also described the horrific chaos of the victims thrown into a ditch as the soldiers opened fire: “Mothers trying to protect their children. People screaming, crying, falling on top of each other as they were shot.”66 Further, in his prosecution of Byron De La Beckwith, Bobby De- Laughter began his closing by putting the horrific nature of Evers’s assassination squarely in front of the jury:

When we started the testimony a little over a week ago , I stood before you and I told you that when all the evidence was in, you would see what this case was about and what this case was not about. Now you know that it is about an unarmed man arriving [in] the late hours of the night, having been working, coming home to his family—his wife, three small children who were staying up, waiting on him to get home—getting out of his automobile with his back turned, and being shot down by a bushwhacker from ambush. He crawled from that automobile where he was gunned down, alongside the carport, trying to make it to his door, in this puddle of blood, with his keys in his hand, and his wife and children coming out when they hear the shot, and his three children stating over and over, “Daddy, Daddy, please get up.” That’s what this case is about. This man being gunned down and shot in the back in the dark from ambush, not able to face his self- appointed accuser, his judge, and his executioner.67

64 Id. at 351-52. 65 Id. at 368. 66 Id. at 352. 67 DELAUGHTER, supra note 39, at 281. 2011] TIMELESS ADVOCACY LESSONS FROM THE MASTERS 35

None are more accomplished in bringing home the passion of a case than Gerry Spence. In representing the Silkwood family against Kerr- McGee, Spence went for the jugular:

I couldn’t get over it—I couldn’t sleep—I couldn’t believe what I had heard. I don’t know how it affected you. Maybe you get so numb after awhile—I guess people just stand and say, “Exposure, exposure, exposure, exposure, exposure—cancer, cancer, cancer, cancer, cancer, cancer, cancer, cancer, cancer, cancer, cancer, cancer, cancer, cancer, cancer, cancer, cancer, cancer,” until you don’t hear it anymore. Maybe that is what happens to . I tell you, if it is throbbing in your breast—if cancer is eating at your guts, or it’s eating at your lungs, or it’s gnawing away at your gonads, and you’re losing your life, and your manhood, and your womanhood, and your child, or your children, it then has meaning—they are not just words. You multiply it by hundreds of workers, and thousands of workers, that is why this case is the most important case, maybe, in the history of man. That is why I’m so proud to be here with you. That’s why I’m so glad you’re on this jury, and that we are a part of this thing together.68

Trial lawyers must identify and exploit the emotional aspects that favor their position and help them advance their case. As suggested, trials can become clinical exercises detached from the emotional waves which frequently boil just beneath the surface.69 Advocates must push the mean, grisly, and unsettling facts that favor their position into the jurors’ faces.70 It is imperative that the jurors, if only vicariously, sense some of the anguish, loss, and heartbreak.

V. Breathe Life and Understanding into the Law

The manner in which jurors are educated on the law they must use during deliberations is flawed in two ways. The first is a function of

68 LIEF ET AL., supra note 13, at 135-36. 69 See John C. Shepherd & Jordan B. Cherrick, Advocacy and Emotion, 3 J. ASS’N LEGAL W RITING DIRECTORS 154, 154-56 (2006). 70 See id. at 154. “Advocates benefit from knowing the unique complementary relationship between reason and emotion. Persuading people requires an understanding of how they respond to emotional as well as logical arguments. The secret of success- ful advocacy is in using emotion effectively to persuade different audiences.” Id. 36 AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 35:19 timing. It is curious that most often the trial judge will read the jurors the law only after the advocates have made their closing argument.71 Consequently, the trial lawyers must fashion their arguments without the jurors first being apprised of the rules they are to use in evaluating the evidence with which they have been presented.72 The second flaw is born of the first. Even when the judge reads the law to the jurors, it is often presented in such a manner as to be incomprehensible to many jurors.73 Given these significant limitations, advocates must take matters into their own hands and make the crucial pieces of law understandable so that the jurors can best undertake the serious business of deliberation. Gerry Spence in the aforementioned Silkwood v. Kerr-McGee Corp.74 trial offered a clinic in taking a difficult legal concept and making it understandable to his jurors. Spence’s action on behalf of the Silkwood family sounded in strict liability, certainly a concept sufficiently out of reach to most people.75 And a simple reading of the jury instruction

71 ROBERT M. REGOLI & JOHN D. HEWITT, EXPLORING CRIM INAL JUSTICE 299 (2008). “The judge’s instructions or charge to the jury, provide the members of the jury with guidelines for making their decision.” Id. 72 Id. 73 Id. Jurors often have little comprehension of the instructions provided by the judge. Id. Indeed, “studies suggest that jurors who receive standard instructions comp- rehend their responsibilities no better than jurors who receive no instructions at all —both groups appear to make the similar decisions and to raise similar questions of the judge after beginning to deliberate.” Id. 74 485 F. Supp. 566, 597 (W.D. Okla. 1979), aff’d in part, rev’d in part, 667 F.2d 908 (10th Cir. 1981), rev’d, 464 U.S. 238 (1984). 75 Meyer, supra note 3, at 238. “Spence’s legal story-theme is based upon a careful translation of the complex law of strict liability into an anecdote.” Id. The lengthy strict liability instruction Spence had to work with read as follows:

You are instructed that plaintiff is relying in this case on a theory of liability against defendants that is known as strict liability. Such theory of liability is one that comes about by operation of law through public policy for the protection of people who live in a society where they may be affected by someone else’s operation of an ultra-hazardous or abnormally dangerous activity. The rule of strict liability applies only to harm that is within the scope of the abnormal risk that is the basis of the liability. The liability arises out of the abnormal danger of the activity itself and the risk it creates of harm to those in the vicinity. In the case at the activity would be the handling and processing of plutonium, one of the most dangerous of substances. The rule is founded upon a policy of law that imposes upon anyone, who for his own purpose creates an abnormal risk of harm to his neighbors, the responsibility of relief against that harm when it does in fact occur. The defendants’ enterprise, in other words, is required to pay its way by compensating for the harm 2011] TIMELESS ADVOCACY LESSONS FROM THE MASTERS 37 would not be of great assistance in understanding the concept.76 Consequently, Spence had to make the concept of strict liability accessi- ble to his jurors. In so doing, he also coined a phrase which became his mantra throughout the remainder of the trial:

Well, we talked about “strict liability” at the outset, and you’ll hear the court tell you about “strict liability,” and it simply means: “If the lion got away, Kerr-McGee has to pay.” It’s that simple—that’s the law. You remember what I told you in the opening statement about strict liability? It came out of the Old English common law. brought an old lion on his ground, and he put it in a cage—and lions are dangerous—and through no of his own—through no fault of his own, the lion got away. Nobody knew how—like in this case, “nobody knew how.” And, the lion went out and he ate up some people—and they sued the man. And they said, you know: “Pay. It was your lion, and he got away.” And the man says: “But I did everything in my power—I had a good cage—had a lock on the door—I did everything that I could—I had security—I had trained people watching the lion—and it isn’t my fault that he got away.” Why should we punish him? They said: “We have to punish him—we have to punish you—you have to pay. You have to pay because it was your lion—unless the person who was hurt let the lion out himself. That’s the only defense in this case: unless in this case was the one who intentionally took the plutonium out, and “let the lion out,” that is the only defense and that is why we have heard so much about it. Strict liability: “If the lion gets away, Kerr-McGee has to pay,” unless Karen Silkwood let the lion loose. What do we have to prove? Strict liability. Now, can you see what that is? The lion gets away. We have to do that. It’s already admitted. It’s admitted in the evidence. They admit it was their plutonium. They admit it’s in Karen Silkwood’s apartment. It got away. And, we have to prove that Karen Silkwood was damaged. That’s all we have to prove. Our case has been proved long ago, and I’m not going to labor you with the facts that prove that. It’s almost an admitted fact, that it got away, and that she was damaged.77

it causes because of its special, abnormal and dangerous character. The liability is not in any way based upon any intent of the defendant to do harm to the plaintiff or to affect his interest nor is it based upon any negligence either in attempting to carry out the activity itself in the first instance, or in the manner in which it is carried on. The defendant is held liable although he has exercised the utmost care to prevent the harm to the plaintiff that has ensued from the dangerous substance.

Silkwood, 485 F. Supp. at 597. 76 Meyer, supra note 3, at 238. 77 Id. 38 AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 35:19

In two paragraphs, Spence has reduced the concept to its very understand- able essence: “If the lion got away, Kerr-McGee has to pay.” Throughout the remainder of his closing argument, any time Spence needed to reference strict liability he merely repeated this phrase. Another memorable effort of breathing life and understanding into the law was the work of Deputy District Attorney in his prosecution of Charlie Manson and his “family.”78 Early in his closing argument, Bugliosi tackled the legal concept of conspiracy. Since Manson was not at the scene of either of the brutal killing sites, Bugliosi had to link Manson to the murders under a conspiracy theory:

We will talk a little about conspiracy. As you know, all of these defend- ants are charged with the crime of conspiracy to commit murder. A con- spiracy is nothing more, ladies and gentlemen, than an agreement between two or more persons to commit a crime, just an agreement; they get together and agree to commit a crime, followed by an overt act, in carrying out the object of the conspiracy. . . . Now, how do we prove the existence of a conspiracy? Normally we prove it in the same way, the same way that we prove the state of mind of a killer, by circumstantial evidence. That is, we look at the conduct of the parties, and from that conduct we infer that the parties were acting together in concert; that they had a meeting of the minds, a common goal, a common objective. . . . . Let us assume that A and B are charged with committing a robbery. Let’s call it the robbery of the Gotham Bank—that’s going back to the days of Robin and the Batman. In any event, A and B are charged with robbing the Gotham Bank. The evidence at the trial shows that A and B were seen by witnesses entering the Gotham Bank together, armed with guns. They held up the bank together and they fled together in the same car. Now, under those facts, ladies and gentlemen, to believe that A and B did not even know each other, and they just coincidentally decided to rob the same bank at the same time and coincidentally found it convenient to flee in the same car, simply would not be reasonable. It would be extremely unreasonable. . . . . Once a conspiracy is formed, each member of the conspiracy is crimi- nally responsible for it and equally guilty of the crimes committed by his coconspirators which were in furtherance of the object of the conspiracy. For example, A and B conspired to murder X. Pursuant to the agreement,

78 The Charles Manson Trial: Prosecution’s Closing Argument, 842 PLI/Lit 667, 669 (2010). 2011] TIMELESS ADVOCACY LESSONS FROM THE MASTERS 39

B actually murders X. A, although he is not the party that actually murdered X, is equally guilty of that murder even if he was not present at the scene. He could have been playing badminton somewhere. It wouldn’t make any difference. If he was a member of that conspiracy, he is guilty of that murder. Although the evidence at this trial shows that Charles Manson was the leader of the conspiracy to commit these murders, there is no evidence that he actually personally killed any of the seven victims in this case. However, the joint responsibility rule of conspiracy makes him guilty of all seven murders.79

Bugliosi took a difficult legal concept, a concept that is not clearly set forth by the jury instructions, and rendered it understandable to his jury.80 Trial lawyers must understand that not everyone shares a love of the law or an understanding of it, and that it is essential for advocates to simplify the law for their juries.

VI. Do Not Pontificate, Reason

In advancing a particular argument during summation, an advocate may choose to state the conclusion first and then offer support for that conclusion.81 But, there are disadvantages to this approach. First, there is often pushback from listeners when they feel they are being forced into a particular position.82 Indeed, there is solid empirical evidence as to the

79 LIEF ET AL., supra note 13, at 235-37. 80 See id. at 231-33 (noting that Bugliosi effectively explained confusing legal theories, such as how Manson could be guilty of crimes even though he may not have been physically present when they occurred, while also overcoming other hurdles, such as public speculation and outbursts from Manson). 81 See C. GRANT LUCKHARDT & W ILLIAM BECHTEL, HOW TO DO THINGS WITH LOGIC 18 (1994). 82 RONALD J. W AICUKAUSKI ET AL., THE 12 SECRETS OF PERSUASIVE ARGUMENT 198 (2009).

The challenge of making an effective argument is convincing your listener that the position you advocate should become his embraced position. To the extent that you can engage your listener in the thought process, you enhance the chances that he will embrace your conclusion. He will hold these convictions more solidly and will be better prepared to resist counter attacks by your opponent.

Id. 40 AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 35:19 reticence of listeners who feel that a point of view is being foisted upon them.83 This contrary notion can work to the serious disadvantage of trial lawyers. Another drawback of structuring an argument in this way is that it allows the listeners to be passive rather than engaged or challenged to employ their own thoughts and reason.84 They are being told what they are to conclude and why. Further, passive listeners who are not chal- lenged or engaged present serious concerns about attention spans85 and information retention.86 An alternate approach employed by many master advocates during closing argument is to reason with the jurors to a mutually arrived at conclusion.87 This approach stands the traditional mode of argument on its head. Instead of stating a conclusion and then offering support for that conclusion, this approach poses the issue or question under consideration without suggesting the answer and then, through a thoughtful recall of key pieces of evidence, reasons with the jurors to a conclusion.88 This helps avoid the resistance that many people, including jurors, experience

83 Id. “You could demand that your listener draw a specific conclusion: ‘You must do thus and so’ or ‘Only an irrational person would find otherwise.’ Because people dislike being ordered to do something, phrases such as these tend to alienate them and can often create a boomerang effect.” Id. 84 Id. “Many people enjoy solving puzzles. If you can engage them in an intel- lectual challenge, they will become personally invested in your presentation.” Id. at 139. 85 Id. at 198.

Engage your listener in the thought process. Anyone who has ever raised children knows that you prefer they adopt your rule rather than simply follow it because they will be more likely to adhere to it when you are not watching. Ordering a child to follow a rule is easy; you simply announce your preference and offer a stick or carrot to secure compliance. Getting a child to adopt your rule is more difficult. Sometimes, the child will adopt a rule simply because you announce it; more often, this requires interaction; it requires teaching; it requires engaging the child in the thought process. The same is true for the adults to whom you argue.

Id. 86 Id. at 119 (“Passive listeners are less absorbed in presentations and their retention levels are low.”). 87 Id. at 198, 200-02. 88 W. DENT GITCHEL & MOLLY TOWNES O’BRIEN, TRIAL ADVOCACY BASICS 240 (2006) (“Closing arguments are the lawyers’ opportunity to tie all of the evidence together—to take all of the dangling, loose threads in the evidentiary tapestry and weave them together into a coherent design.”). 2011] TIMELESS ADVOCACY LESSONS FROM THE MASTERS 41 when they feel pressured into a position.89 Posing the question in neutral terms invites the advocates, as well as their audiences, to engage their own thoughts and reasoning in resolving the issue. The advocate plays the role of group leader, reasoning with the jurors to some desired conclusion. It follows that jurors so engaged are more attentive and ultimately more convicted of their position because they were able to experience and, at least vicariously, speak to the question posed.90 Master advocates metaphorically “climb into the box” with the jurors as the thirteen of them (one advocate and twelve jurors) reason through the answers to the issues under consideration.91 Captain Aubrey Daniel employed this reasoned approach in his prosecution of Lt. Calley for the My Lai Massacre. During his closing argument, he set out one of the critical issues that the jurors had to decide: “We must prove that [Calley] not only had the specific intent to kill these individuals, but that he had a premeditated design to kill the individuals prior to the time he in fact killed them.”92 Once this crucial question was posed, Daniel methodically began selectively recalling with the jurors evidence that laid the issue to rest. Daniel began: “You will recall the testimony of Dennis Conti . . . . He was a member of the platoon.”93 After demanding that Conti order the villagers into a ditch, Calley said: “Take care of these people,” and then left. “Calley returned shortly and said, ‘I thought I told you to take care of them. . . . I meant to kill them.’”94

89 W AICUKAUSKI ET AL., supra note 82, at 198. 90 See FREDRIC G. LEVIN ET AL., CLOSING ARGUMENTS: THE LAST BATTLE 27 (2003). “Rhetorical questions can be a very effective tool if used properly, and if the answer to the rhetorical question is absolutely clear. You need to remember that a rhetorical question is a question that clearly answers itself. Thus, make sure the question only has one answer.” Id. 91 See STEVEN LUBET, MODERN TRIAL ADVOCACY: ANALYSIS AND PRACTICE 468 (3d ed. 2004). The closing argument should “be used to illuminate your theory.” Id. This requires that the advocate “tell the jury, or the court, why your client is entitled to a verdict. A simple recitation of facts is not sufficient. Rather, the argument should bring together information from the various witnesses and exhibits in a way that creates only one result.” Id. 92 LIEF ET AL., supra note 13, at 358. 93 Id. at 358-59. 94 Id. at 359. 42 AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 35:19

Daniel continued:

Then we have the testimony of Paul Meadle . . . . And what did Paul Meadle say? He corroborates Dennis Conti, although not identically, sufficiently to show what actually transpired. He also testified that he gathered up thirty to forty people in the same location, at the same spot, and he was told to take these people to a designated area in a clearing. He said substantially the same thing that Dennis Conte said, “Calley came up to me and he said, ‘You know what to do with them.’”95

By posing the issue and then urging the jurors to recall with him testimony that bore on the issue, Daniel challenged and engaged his jurors to work with him as together they arrived at the conclusion that Calley had premeditated the killings. Clarence Darrow also used this approach when arguing to the judge that Leopold and Loeb should not be hanged. Instead of telling the judge how inhumane the hanging would be, Darrow posed questions to the judge, requiring him to seriously consider and think about the conse- quences of hanging the two men.96 Darrow asked: “Wouldn’t it be a glorious day for Chicago? . . . Wouldn’t it be a glorious triumph for the state’s attorney? Wouldn’t it be a glorious triumph of justice in this land? Wouldn’t it be a glorious illustration of Christianity and kindness and charity?”97 Of course, the obvious and emphatic answer to these ques- tions is “No!” But Darrow simply questioned the judge, allowing him to form his own conclusion about the appropriate punishment. Bobby DeLaughter, in his prosecution of Byron De La Beckwith for the assassination of civil rights leader Medgar Evers, also called upon his jurors to reason along with him to a common conclusion. Rather than simply telling the jury what the obvious motive was, DeLaughter first posed questions, inviting the jury to think for themselves, and then followed with answers:

And why did this happen? Why did any of this happen? For what reason was Medgar Evers assassinated? For what he believed. Not in necessary self-defense was this done. Medgar Evers didn’t do anything of a violent

95 Id. 96 DONALD MCRAE, THE LAST TRIALS OF CLARENCE DARROW 127 (2009). 97 Id. 2011] TIMELESS ADVOCACY LESSONS FROM THE MASTERS 43

nature to this defendant. What he did was to have the gall, the “uppityness” to want for his people things like what? To be called by name, instead of “boy.” To go in a restaurant, to go in a department store, to vote, and for your children to get a decent education in a decent school. For wanting some degree of equality for himself, his family, and his fellowman, and for them to be accepted as human beings with some dignity.98

In addition, rather than pontificating about the proper verdict or punishment, DeLaughter finished his closing argument with a very poignant question: “So what is Mississippi justice in this case, ladies and gentlemen? What is Mississippi justice for this defendant’s hate-inspired assassination; assassination of a man that just desired to be free and equal?”99 The questions themselves suggest the obvious answer, but DeLaughter did not pontificate about what that answer might be. He reasoned with his jury. Daniel, Darrow, and DeLaughter each understood that jurors respond best when they are able to reason with the advocate: when they are not pushed into a position, but instead given the chance to think for them- selves. Master advocates like these do not preach to their audience. Rather, they work with their audience, guiding them to the conclusion that the advocates want.

VII. Develop a Horizontal Dialogue with the Jurors

The final lesson to be learned from master advocates is the art of horizontal dialogue. Horizontal dialogue refers to an advocate’s ability to have a conversation with each of the twelve jurors in the box.100 Instead of talking above or beneath jurors, master advocates know how to talk with jurors and not at them.101 Mastering horizontal dialogue allows the advocate to communicate with each juror like the two are

98 LIEF ET AL., supra note 13, at 301-02. 99 Id. at 302. 100 PERRIN ET AL., supra note 26, at 473-74. 101 Id. at 473. 44 AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 35:19 friends and it allows the advocate to build rapport.102 Attorneys often allow themselves to get caught up in the technical aspects of a case or in “legalese” and they forget the importance of relating to their audience.103 Master advocates do not let this happen; they possess an innate ability to relate to “the common man.” An excellent example of horizontal dialogue is found in Clarence Darrow’s closing argument in his own defense. Darrow’s entire closing argument demonstrates his incredible rapport with his audience, and there is no evidence that he talked above or beneath the jurors. He used simple words, and he spoke with each juror as if they were equals. He began:

An experience like this never came to me before, and of course I cannot say how I will get along with it. I am quite sure there are very few men who are called upon by an experience of this kind, but I have felt, gentlemen, after the patience you have given this case for all these weeks, that you would be willing to listen to me, even though I might not argue it as well as I would some other case. I felt that at least I ought to say something to you twelve men besides what I have already said upon the witness stand. In the first place, I am a defendant charged with a serious crime. I have been looking into the penitentiary for six or seven months, and now I am waiting for you twelve men to say whether I shall go there or not. In the next place, I am a stranger in a strange land, two thousand miles from home and friends—although I am proud to say that here, so far away, there have gathered around me as good and loyal and faithful friends as any man could have upon the earth. Still I am unknown to you.104

Darrow’s conversational tone with the jurors continued:

These men are interested in getting me. They have concocted all sorts of schemes for the sake of getting me out of the way. Do you suppose they care what I might have broken? I have committed one crime, one crime which is like that against the Holy Ghost, which cannot be forgiven. I have stood for the weak and the poor. I have stood for the men who toil. And therefore I have stood against them, and now this is their chance. All right, gentlemen, I am in your hands, not in theirs, just yet.105

102 Id. 103 Id.; see also Ronald J. Waicukauski et al., Ethos and the Art of Argument, 26 No. 1 LITIGATION 31, 34. 104 LIEF ET AL., supra note 13, at 71. 105 Id. at 73. 2011] TIMELESS ADVOCACY LESSONS FROM THE MASTERS 45

A simple reading of Darrow’s words demonstrates his innate ability to engage in horizontal dialogue with the jurors. He spoke to each of them as if they had been long lost friends catching up over coffee. He devel- oped rapport throughout the trial, and he used that rapport to deliver a masterful closing argument. Gerry Spence presents another excellent example of the ability to engage in horizontal dialogue with jurors. Spence—who is from Laramie, Wyoming—developed a genuine “country lawyer” style that made him likeable, allowed him to build credibility with jurors, and helped him avoid legalese.106 In his closing argument on behalf of Karen Silkwood’s estate, he began in a conversational tone with the jurors, just as Darrow had:

Ladies and gentlemen, it was winter in Jackson, Wyoming, when I came here, and there was four feet of snow at Jackson. We’ve spent a season here together. I haven’t been home to Jackson for two and a half months. And, although I’m a full fledged Oklahoman now, and have been for over a month and a half, nevertheless I’m homesick. And I’m sure you’re homesick too. I’m sure this has been a tough one on you. Well, I know lots of you have had to do extra work, and I know you’ve had to work at night, and I know you’ve had to drive long distances. Every morning—now, I’m a jury watcher—you watch me watching you every morning, and I’d look at you to see if my jury was all right, and see if they were feeling okay. Sometimes they weren’t feeling too good, but mostly we made it through this matter together, and I’m pretty proud of that.107

A few moments later Spence delivered one of the best examples of horizontal dialogue as he honestly and authentically talked to the jury:

What I need to do is have you understand what needs to be understood. And, I think I’ll get some help from you. My greatest fear in my whole life has been that when I would get to this important case—whatever it was—I would stand here in front of the jury and be called upon to make my final argument and suddenly you know, I’d just open my mouth and nothing would come out. I’d just sort of stand there and maybe just wet my pants, or something. But I feel the juices—they’re going, and I’m going to be all right.108

106 Id. at 122, 124. 107 Id. at 128. 108 Id. 46 AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 35:19

Spence’s words were heartfelt and honest, as if he were confiding in a close friend. He admitted fears, building credibility and rapport with each of his jurors who had likely felt similar fears in their own lives. And during his rebuttal argument, he continued with his heartfelt conversation with the jury:

I, during the recess, wondered about whether there is enough in all of us to do what we have to do. I’m afraid—I’m afraid of two things: I’m afraid that you have been worn out, and that there may not be enough left in you to hear, even if you , and I know you will try, but I know you are exhausted; and I’ve been afraid that there isn’t enough left in me, that my mind isn’t clear and sharp now, and that I can’t say the things quickly that I need to say, and yet it has to be done, and it has to be done well.109

Horizontal dialogue allows master advocates to have a genuine conversation with each member of the jury. It builds on rapport that the advocate has established throughout the trial, and it is an invaluable tool in the advocate’s arsenal.

Conclusion

“If the lion gets away, Kerr-McGee has to pay.”110

“It is not their thoughts, it is their overt acts which we charge to be crimes.”111

“Because you see, ladies and gentlemen, what we’re talking about here, this type of offense, this type of murder, this assassination by a sniper from ambush, is something that’s timeless.”112

“I am on trial because I have been a lover of the poor, a friend of the oppressed, because I have stood by labor all these years, and have bought [sic] down upon my head the wrath of the criminal interests in this country.”113

109 Id. at 143. 110 Id. at 129. 111 See LAW, supra note 22, at 227. 112 DELAUGHTER, supra note 39, at 282. 113 LIEF ET AL., supra note 13, at 72. 2011] TIMELESS ADVOCACY LESSONS FROM THE MASTERS 47

For centuries, master advocates have exemplified the lessons discussed in this Article. By example they have taught us the importance of both theme and case theory. They have mastered the art of shifting the focus of their trials so that they are battling from a position of strength instead of weakness, and they have shown master-advocates-in-the-making how the emotional current of a case can be used to one’s advantage. Master advocates understand the importance of giving life to the law so that jurors understand it and apply it in the way the advocates want. And finally, master advocates excel at reasoning with their jurors, at becoming one of them, and engaging in horizontal dialogue with them. Learning these lessons is critical for any advocate working to hone advocacy skills. Gone are the days when jurors sat through lengthy closing arguments without the aid of technology, but the lessons we can learn from master advocates remain timeless. 48 AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 35:19