Some of our favorite stories growing up were A.A. Milne’s Winnie-the-Pooh books.1 In them, we meet a wide variety of characters: the simpleminded but well-intentioned Pooh (the “bear of very little brain”), the all-knowing Owl, the ever-anxious Piglet, the scheming Rabbit, and the chronically depressed donkey, Eeyore. You may remember that Eeyore once responded to Pooh’s “Good morning!” with “If it is a good morning, which I doubt.”
Too often, we face Winnie-the-Pooh on our juries. These are the jurors who, when presented with overwhelming proof of a defendant’s liability and a plaintiff’s horrific injuries, can only reply with Pooh’s famous phrase: “Oh, bother.” These jurors believe that nothing can be done to fix what happened to our clients. They become so caught up in the futility (and enormity) of the problems presented that they can’t see how a verdict can do the plaintiff any good.
It is our challenge to motivate these Poohs to do something once they reach the jury room. We must help them see that they can make a difference. We must send them to the jury room with a purpose and a clear mission.
But how do we touch this nerve? How do we instill this commitment to return a verdict for our clients? It is not enough to appeal to the jury for sympathy. Not only does the law specifically warn against basing a verdict on this, but a lawyer appealing for sympathy will not incite a jury into action.
A sympathetic jury might carry us part of the way, but a jury with a deep sense of moral indignation will take us all the way. We need a jury that will say, “What the defense did was not only wrong, it was morally reprehensible—and we’re going to do something about it.”
To elicit this reaction, we must show more than simple negligence. We must put the negligence in the context of a greater wrong or pattern of behavior. This wrong does not necessarily have to apply to the defendant’s negligent act; it could apply to one or more of the following factors.
A simple law or concept that has been violated. This law or concept may be based on a specific statute regulating conduct (for instance, a driver has a duty to stop at a red light) or on a fundamental freedom (for instance, everyone should be treated equally by medical personnel regardless of economic status). The key here is to identify the law or concept before jury selection and have the jurors express it to you during jury selection, rather than having you explain it to them.
For example, in a case in which a defendant ran a red light, you might ask, “Mr. Smith, who taught you how to drive, and what did he or she teach you about red lights?” Smith will answer something like: “My dad. He taught me to stop at red lights.”
By volunteering this law instead of having the advocate spell it out, Smith has now been given ownership of it. With that ownership comes the need to defend it if it is attacked. When you begin your closing argument by talking about a law or concept that a juror has volunteered during voir dire, direct at least some attention to that juror.
You need to be certain that everyone on the jury fully embraces the law or concept. If two or three jurors don’t agree, it has lost its power. For example, if Mrs. Jones is asked, “What role should wealth play in a person getting quality medical care?” and she responds by talking about how Medicaid patients are always getting better care than what her HMO provides, you need to excuse her or come up with a different concept.
The defendant’s conduct after the wrong was committed. Often, it is not only the defendant’s negligence that resonates with the jury but also the events that take place immediately afterward. For example, did the defendant driver immediately apologize after striking the bicyclist, or scream at the bicyclist for not being more careful? Did the doctor admit that he or she had made a mistake during surgery and nicked a nerve, or claim it was a difficult procedure with many risks?
The key is whether the defendant accepted responsibility for what he or she did, and if not, whether this failure to accept responsibility was reasonable. Obviously, it is critical to ask the defendant during deposition what he or she did after the negligent act took place. This is also the time to ask the defendant whether he or she considered apologizing.
When you present your opening statement, be careful to simply recite the facts as they occurred. Avoid the temptation to overargue and become emotional, especially in a trial that might last several weeks. Keep in mind that jury deliberations could be weeks away; you can’t expect the jury to sustain its outrage throughout the trial.
Instead, build a framework for your case by stating the facts. You can fill in the frame during the trial by exploring the defendant’s actions through the testimony of the defendant, the plaintiff, and the fact witnesses.
The lawyers’ conduct during discovery. Even the best lawyer eventually faces a sympathetic defendant. You’ll have to admit the difficulty of summoning a jury’s moral outrage against a Girl Scout troop leader who was transporting three girls to a volunteer project, didn’t see the stop sign, and apologized right away for her mistake. In that scenario, consider alternative objects of outrage, for instance, the defense lawyer.
Most defense lawyers have a genetic predisposition to refuse to admit any fact alleged in a complaint. For this reason, a simply worded complaint can be the first building block of a trial. For instance, your complaint may state: “As a result of the defendant’s negligence, the plaintiff’s car and the defendant’s car came into contact with each other.”
The typical response to this allegation is a denial (usually by an overworked defense lawyer who just got the file two days before the time to answer runs). In the case of the Girl Scout leader, by failing to admit negligence, the defense attorney has written the first line of your opening statement: “Members of the jury, why are we here? We are here because those lawyers won’t admit what their client admitted right after the crash happened. They want you to ignore their own client . . . and that’s just wrong.”
The lawyers’ conduct during trial. As powerful as defense counsel’s pretrial actions may be, the tactics used during the trial itself have far greater potential to inflame the jurors because they will see them played out in front of them.
Here’s an example: Scott Huber was a 22-year-old homosexual man who became involved in a fight outside a gay bar with a female off-duty police officer. Huber and the officer began arguing over the affections of a man inside the bar and took the matter outside. The initial fisticuffs were broken up by a bouncer who was a friend of Huber’s, and the police officer went back inside.
The police arrived just as the off-duty cop came back out of the bar to trade punches with Huber. The arriving officers immediately recognized their colleague, put Huber in handcuffs, and left him lying on the ground. As the officers approached their off-duty colleague, she broke away from her friends and ran up to Huber, kicking him in the jaw with enough force to break it in two places.
During the trial of Huber’s personal injury action against the off-duty officer and the municipality, one of the defense attorneys began his cross-examination of every fact witness with the question, “Are you gay?” in an attempt to show bias. Huber’s lawyer chose to not object to this tactic, and three out of the four fact witnesses responded in the affirmative.
While the plaintiff lawyer’s opening had focused on the right of every citizen to be treated equally by police officers, the closing directed its primary focus at the questioning tactics used by the defense lawyer. After a verdict was returned for Huber, jurors who were questioned commented on how angry they were with the defense attorney for trying to, in one juror’s words, “embarrass the witnesses for being gay.”2
Obviously, the difficulty with trying to mold a closing argument around defense counsel’s missteps is that you cannot predict them. What’s important is the ability to spot the missteps when they happen and react accordingly. For example, if Huber’s attorney had objected to the “Are you gay?” question early on, he would have lost the opportunity to exploit that line of questioning later, during his closing.
When you try to bring out a jury’s moral indignation, always be aware of your jurors. Observe their reactions to questions and to witnesses. If you can, have a paralegal watch the jury from the courtroom (not at counsel table) during a trial; this will give you an advantage over opposing counsel who doesn’t have his or her own assistant in the courtroom. Remember, we try only a small percentage of our cases, and the results linger for years in an insurance company’s mind. Spending the extra few hundred dollars for the courtroom observer will be paid back many times over in years to come.
If a defense doctor refuses to concede an easy point on cross-examination, remind the jury during closing that the doctor testified only because the defense lawyer chose him or her. If a jury seems bored with one of your witnesses, don’t base your appeal on that witness’s testimony—even if doing so was your plan before the trial began. Never forget that your moral indignation may cause you to take a case, but it is the jury’s moral indignation that is important to your client.
Throughout the trial, keep in mind one key caveat: Don’t be overcome by your own brilliance in cross-examination. It is always better to focus during a closing argument on the simple law or concept that has been violated, or the misdeeds of opposing counsel, than to highlight your own excellence. Few lawyers can arouse the passions of a jury by saying, in so many words, “Wasn’t it really cool when I tore that witness apart?”
To be an effective advocate, you need a hook around which you can craft an argument that will move the jury into action. The hook actually works best when you can combine several transgressions together. A defendant who refuses to admit negligence, combined with a nasty defense lawyer and a defense medical examiner who never testifies for a plaintiff, form a wonderful triumvirate of trigger points for a jury’s emotions.
When considering your closing argument, ask yourself what it is about the case that hits you hardest in the gut when you think about what happened to your client. Was it that the proud factory worker can no longer provide for his family? Was it that the grandmother can no longer lift and hold the grandchild she wanted for many years? Is it simply that your client is a little less of a person because he or she was injured without so much as a simple “I’m sorry”?
Also run the facts by family members and friends. If they don’t make your spouse or your nonlawyer buddy angry, if they don’t make them say, “Something needs to be done about this,” then think harder—but this time think like a nonlawyer.
Finish your summation by empowering the jurors. Let them know they don’t have to sit there and say, “Oh, bother.” Tell them they can go into the jury room and follow the law and return a verdict that tells the defendant and his or her lawyer, “No. What you did was wrong, and we won’t stand for it.”
Don’t just give your client the benefit of your emotion. Give your client the benefit of the jury’s emotion, too. Inspire the jury to follow the law and return full and fair damages.
Chris O’Brien is a partner with O’Brien Boyd in Buffalo, New York. He can be reached at email@example.com. Christine Funk is a public defender in Hastings, Minnesota. She can be reached at ChristineFunk@christinefunk.net.
- A.A. Milne, Winnie the Pooh (Dutton 1926) and The House at Pooh Corner (Dutton 1928).
- Huber v. Hoeffler , 2006 WL 5013329 (N.Y., Erie Co. Sup. May 28, 2003).