Repackage the Evidence in a Way that is Useful for the Jury
More than 2000 years ago, Aristotle wrote about the importance of refreshing the memory of the audience frequently. Nowhere is that dictate more true than in summation. An old trial lawyer’s proverb is: “Tell the jury what you expect to prove in opening statement, prove it in your case in chief, and then tell the jury what you proved in summation.”
There is no doubt the summation must contain a repetition of the strongest and most important points made on behalf of your client during the trial. Refreshing the memory of the jury in summation, however, must not be a boring repetition of what each witness said. If you bore the jury, they will stop listening and you will have lost the opportunity to persuade. Instead of merely repeating the evidence, repackage it in a way that the jury will find useful in their deliberations. Reacquaint the jury with the testimony in the context of the jury interrogatories the jurors will be called upon to answer, as well as core credibility questions. For example, in reviewing the testimony of plaintiff’s expert witness, Dr. Smith, a defendant attorney might say:
(1) “Let’s now look at how the testimony of Dr. Smith squares with his own medical records;” or
(2) “Let’s now consider how the testimony of Dr. Smith lets you answer the question of whether the plaintiff’s injuries are permanent.“
Then, review the testimony of Dr. Smith. In short, repackage the testimony in a way the jury deems useful while still adhering to the age-old principle of repeating the important evidence. Repackage, do not simply rehash.
1. Use analogies and similes liberally in your opening and summation. They create word pictures and assist the jury in understanding your theme and remembering key facts.
2. Use empowering words. Use present tense and action verbs. Lose the lawyer language.
3. Employ the rhetorical technique known as the “Rule of Three” (“I came, I saw, I conquered”).
Discussing the Law in Summation
It is universally understood in New York State courts that it is improper for the lawyers to inform the jury what the applicable law is. It is not improper, however, to weave the language the judge will use in his charge into your summation. Mimicking the terminology in the jury charges, it is entirely appropriate to advise the jury that the defendant caused the crash because “he failed to see what was reasonably to be seen,” or that he failed to “look, or look carefully.” In summation, speak the same language as the judge.
Non-Verbal Influences and Using Courtroom Space on Summation
One study suggested that 7% of communication is absorbed by verbal communication (words), 38% is absorbed by vocal impression (intonation and tone), and an incredible 55% of communication is absorbed by visual impression (body language and non-verbal communication). Use non-verbal communications to support your message.
The jury is looking with their eyes as well as hearing with their ears. Use your body to complement your verbal message. Use gestures for emphasis. High energy in the speaker can infect the listener. Low energy means low juror interest. When speaking to the jury:
Don’t bury your hands in your pockets (too casual) or repetitively open and close them (too nervous). If you glue your elbows to your flank, you won’t be able to make expansive gestures with your hands and arms.
Don’t stand tilted on one foot off balance or dance around the courtroom when you speak. Imagine the distraction of someone trying to speak to you in your living room while pacing back and forth.
Do permit your hands to drop naturally to your sides. Let your hands supplement your presentation, emphasizing and physically describing what you are saying. Gesture, if possible, with one hand at a time. As one pair of communications experts wrote:
You look strongest and in greatest control when you plant your two feet shoulder width apart, weight equally balanced, square to the audience. That way, all of your energy manifests itself in gestures, facial expression, and upper body movements. Your message is reinforced and made clearer by your physical behavior. (Talk Your Way to the Top, Kevin and Laura Daley (McGraw – Hill 2004).
Focus your eyes on one person on the jury panel at a time until you complete a thought. A thought is a short sentence; a place in your monologue where you would naturally pause. Repeat the process continually until your presentation is over.
Develop a Passion for Your Client’s Cause
In your summation show that you care for your client, you care for your client’s cause and that you are a true believer in it. If you don’t, your body language, your non-verbal communication, will betray you. Passion, however, is not the same as histrionics. Persuade the jury with logic and evidence, not emotion. Overt appeals to emotion rarely succeed on their own. Emotions should be used strategically, for emphasis and to motivate the jury.