Just spreading the word today. Evan Schaeffer at Illinois Trial Practice Weblog referenced a post at The Maryland Injury Lawyer Blog about how to deal with a witness in closing who had previously clobbered you on cross. I am a sucker for "down home" stories and I have a feeling that this approach could very well work. Read it.
A frequent piece of advice that you will find in a lot of the literature on closing arguments is to “empower the jury”. The concept is to give the jurors the sense that they are making the decisions not the lawyers. You do not want the jurors to feel as if the lawyers are leading them by the nose. You want them to feel like they are in charge.
The word “empower” seems to me to be a word that has made its’ way into usage over the last 10 years or so. Being a somewhat new word it has the connotation that the concept behind it is something recently discovered. But is it?
I recently ran across the paragraph set forth below in Dale Carnegie’s “How to Win Friends and Influence People.” He was talking about the persuasiveness of the famed lawyer Daniel Webster who practiced law during the first half of the 19th Century. This is what he said:
Daniel Webster, who looked like a god and talked like Jehovah, was one of the most successful advocates who ever pleaded a case; yet he ushered in his most powerful arguments with such friendly remarks as: “It will be for the jury to consider,” “This may, perhaps, be worth thinking of,” “Here are some facts that I trust you will not lose sight of,” or “You, with your knowledge of human nature, will easily see the significance of these facts.” No bulldozing. No high-pressure methods. No attempt to force his opinions on others. Webster used the soft-spoken, quiet, friendly approach, and it helped to make him famous.
Human kind has made great leaps and bounds in the area of invention and technology, yet over thousands of years human nature has remained the same. It is worth taking a look at the lawyers and orators of old.
Recently I have been reading a lot of history about the founding of our nation and the decades following the ratification of the Constitution. In my reading I came across a brief reference to the fact that Alexis de Tocqueville was an admirer of the American jury system. Not content with that brief reference I googled it and found the following at the Jury and Democracy Project:
Nearly two centuries ago, Alexis de Tocqueville (1835) contended that jury deliberation served a larger civic function in America. The jury, he wrote, “is highly beneficial to those who decide the litigation” and “one of the most efficacious means for the education of the people which society can employ” (p. 337). The U.S. Supreme Court, in Powers v. Ohio (1991), invoked Tocqueville’s Democracy in America to argue that citizens not only have the right to trial by jury but also the right to serve on juries, owing to the jury’s value as a means of civic education. The American jury was designed to promote not only fair verdicts but also a sense of civic duty, and the experience of jury deliberation may boost citizens’ sense of civic responsibility and levels of public activity.
I don't know about the rest of you out there but this kind of stuff makes me proud to be a lawyer. And, as an after thought, whenever you are being pummeled by doctors with lawyer jokes remember that when doctors were bleeding George Washington to cure his ailments, lawyers were writing the U.S. Constitution.
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