Openings and Closings with the Rules of the Road™ Patrick Malone Roadmap to a Winning System Session 6 (C) 2015 Patrick Malone
Opening Statement: a Persuasive Story
Elements of Story ü Place, Time ü Character ü Conflict ü Crisis ü Resolution
The Story Arc • Once upon a time … • And every day … • Until one day … • And because of that … • And because of that … • Until finally … • And ever since then …
Cinematic è Memorable Memorable è Persuasive
Trial Lawyer, Story Assassin
“I am now going to tell you every fact that favors the plaintiff.”
“The evidence will show this was extremely outrageous conduct.”
The Human Need for Story How it felt Why it happened What happened
Opening Statement: the Power of Less
Opening – first draft • On June 18, 2013, the defendant, Dr. Jones lacerated Sherry Coates’s popliteal artery and vein while performing a knee replacement surgery. • Dr. Jones did this by moving his oscillating saw through a capsule, a tissue barrier which covers the knee joint and separates it from the arteries and nerves behind the knee. • He moved the saw blade designed to cut bone into this area behind the knee where it cut into the artery in two places and into the vein in three places. • He put the saw into an area it should never be put.
• “We have safety rules intended to protect the public and prevent needless harm.” • “Here’s one such rule: _____” • “One day the defendant broke this rule.” • [And somebody got badly hurt.]
Same Case: Rule-Focused Thematic Opening • When a bone surgeon is using a power saw to cut inside the patient’s body, the surgeon has to move carefully and slowly to make sure he doesn’t accidentally cut important blood vessels. • If a surgeon is rushing to do his work because he’s overbooked himself with back-to-back surgeries, that’s a recipe for disaster. • On a warm day in June two years ago, disaster happened. • Dr Jones scheduled himself to do nine surgeries on a single day. None of them was an emergency that had to be done that day. Three of those were complex knee replacements. • One was on my client.
Getting to How It Felt • Sights, sounds, smells of the scene – Go there and observe! • Feelings people had – Re-enact • Choose an actor for point of view • Recreate in present tense • Scene by scene
What Facts to Include or Omit? Include: – Necessary to win – Evocative of a vivid human story (sights, sounds, smells) – Bad facts that must be answered or you look shady. Omit: • Details that pile on unneeded technical facts • Killer facts that defendant has trouble answering.
Why Ask Questions? E.g., “Is what the defendant wrote about this event at the time consistent with what he says now? If he has a new version, when and how did it change? And why?” • Keeps suspense • Engages the jury as investigators • Lets the case build as evidence unfolds
Closing Argument Essentials
10 Closing Essentials: A Checklist ü Bookending of Rules/Themes announced in Opening and throughout Trial – We Kept Our Promise ü Inspiring Awe (The Place of the Jury in a Democracy) ü Defense Tactic to Sow Confusion and to Complicate What Is Simple ü Arm Your Allies with Responses (“if someone in jury room says ___, then you can say … ”) ü Jury Instructions: What They Mean ü Empathy Not Sympathy ü Compensation as Balancing ü Preponderance – Tipping the Scales ü Prospective Damages from Viewpoint of Plaintiff, Plus “The New Job” (When it fits the case) ü One Shot Only
Bookending the Story: First Words, Last Words
The Closing of the Closing of the Closing (end of rebuttal) Write this out in advance: • Do something you’ll be proud of • It would be terrible loss if we blessed as normal the defense conduct here • Simple rule of conduct – first thing I told you in opening – so easy to prevent the tragedy • Now you must balance it out on the scales of justice • So when your family asks you what happened, you can say: 1) We held a wrongdoer accountable; 2) We appreciated the full impact of this preventable harm on the plaintiff; 3) We rendered full justice.
Closing the Closing So some people think that life just happens at random. Some people think we’re put here for a reason. Some people think that, may think, that you’re here on the jury, out of all of the fifty people, that it was completely random. Some people might think you’re here for a reason. I think that if you decide that you are here for a reason, that you will find the strength—and it takes strength to render justice in this case—I think that you will find the strength to do what is right without regard to the status of the parties, without any unfair deference to the educated and the powerful. But just do the right thing under the law and to render a verdict that you can take pride in and a verdict that will answer the question, are you here to enforce justice and are you here to enforce accountability for the rules to protect patient safety? Thank you. -- Wood v. Tzeng, Prince George’s County MD Circuit Court, closing argument by Patrick Malone
What role for awe?
“ … awe imbues people with a different sense of themselves, one that is smaller, more humble and part of something larger. Our research finds that even brief experiences of awe, such as being amid beautiful tall trees, lead people to feel less narcissistic and entitled and more attuned to the common humanity people share with one another. In the great balancing act of our social lives, between the gratification of self-interest and a concern for others, fleeting experiences of awe redefine the self in terms of the collective, and orient our actions toward the needs of those around us.” – Paul Piff and Dacher Keltner, “Why Do We Experience Awe?” New York Times, May 22, 2015
Who are the heroes of this story?
“In exchange for your jury service, society makes you into heroes, because it vests in you the power to save the day, and that’s what heroes do. … You all have this power in equal amounts, whether you have a Ph.D. or a G.E.D., on the keyboard of this courtroom all your notes sound equally, and if you choose to work those notes together, you have the opportunity to transform an injustice into a justice.” – Carl Bettinger, Twelve Heroes, One Voice (p. 143), from Larry Selk v. Res-Care New Mexico
Justice in the Light: Of, by, for the People Our system of justice does not work in dark and secret rooms. American justice is achieved in open courtrooms accessible for all to watch. There is a public record where any citizen can look up the verdict of the case. There also will be a transcript of every word spoken. Your verdict will be the public declaration of what justice looked like in fairly determining the outcome of this civil controversy. Make certain it is one you are proud of. -- Adapted from Steve Yerrid, Tampa trial lawyer
Civics Lesson: Another Take • 170 years ago there was a man named Alexis de Tocqueville, who wrote a famous book called Democracy in America. And in that book he talked about the power of democracy in voting. And he said that voting in a jury was just as important a part of democracy as voting in an election. • There are two differences between voting in a jury and voting in a ballot box. You don’t have to exercise your right to vote in an election. But you do have to vote in the jury. Jury service is the ONLY thing we are required to do – where the government can tell us to go somewhere and do something. • And the other difference between election voting and jury voting is when you’re voting for a candidate, you don’t have to agree with anybody. Pure individualism. But in the jury room, you are REQUIRED to deliberate, to reason together, and then to speak with one voice, the voice of truth – “ver” “dict” – and because of that the jury is often called the “conscience of the community.” – Patrick Malone, Semsker v. Lockshin
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