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be dragged in by you through evidence, so that the jury is subjected to the stimuli of the facts which you possess.”
Except in the case of expert witnesses, an honest person called to testify in a trial is likely never to have done so before. He or she may want to tell the truth and present facts just as they happened but does not know how to do so and in any event is not practiced at the rules of evidence or courtroom procedure. It is the lawyer’s job as the paid professional – and as an officer of the court – to facilitate the effective delivery of the witness’s testimony so that the relevant circumstances of the case are clear to the jury.
The only way a trial lawyer can develop skill greater than that of the first-time amateur witness is through practice. If an attorney fails to help an inarticulate or clumsy witness deliver critical testimony effectively to the jury, that attorney has failed the duty of our noble profession to justice.
Moreover, not all witnesses intend to be truthful. The inexperienced trial lawyer faced with misleading or outright lying testimony and befuddled by it will go over the same ground again and again in hopes of tripping the dishonest witness up, but such repetition serves only to reinforce the false testimony in each juror’s mind. The bet- ter prepared and veteran trial lawyer will not be caught by surprise but instead have discovered rebuttal evidence that contradicts the perjury with devastating effect.
Summation
As with jury selection, the trial lawyer’s summation may salvage a lost case or lose one that appears won. The latter occurred in 2002 when a jury’s award of more than $20 mil- lion in damages was over-turned on appeal, in part, because of “misconduct of counsel” including a summation that invited
the jury to decide the case based on “passion, prejudice, or sympathy” (Minichiello v. Supper Club, 745 N.Y.S.2d 24).
In fact the closing arguments portion of a trial has many pitfalls that the experienced courtroom attorney will know to avoid. Although some emotional appeals are permitted, for example, such rhetoric must rely on the law rather than trying to get the jury to put themselves in one side or the other’s position. “Golden rule” appeals violate the principle that jurors must be neutral and decide a case based only on evidence and the law. Likewise, an attorney should never suggest that a statute is unjust or unfair.
The experienced, effective trial lawyer knows that a proper summation relies on the case that has already been presented to the jury. By paying careful attention
to the testimony and other evidence as it is introduced, the veteran attorney has noted the most salient details that support his or her case and any contradictions of the opponent’s case. These critical details will constitute the meat of the closing arguments.
I’ll conclude my thoughts on the Art of Trial with a personal note: When I decided to become a lawyer I was inspired by the performance of Gregory Peck as Atticus Finch in To Kill a Mockingbird. To me, what Finch does with his wrongly accused defendant and a prejudiced Alabama jury is the epitome and ideal of what an attorney should be and do: speak for clients who otherwise have
no advocate, protect their rights, and see that justice is done. My father always taught me that “beyond all else
a man is measured by his service to his family and to his community.” We attorneys are blessed with intellect, skill, and education that require us to serve as more than paper shufflers and settlement hustlers.
The courtroom is where justice takes place, and no attor- ney worthy of the name should prefer to be anywhere else.