In The Way of the Trial Lawyer: Beyond Technique, Rick Friedman teaches how to adopt the same approach to trial work that he has used to win phenomenal results for his clients for years. The following is an excerpt from chapter 41, "Closing," where Friedman uses multiple case examples to demonstrate how to use the moral energy of your case to move the jury to act and award your client justice.
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Closing
Closing is the time when [you] can most easily show the jurors the respective moral positions of the parties. Just as in opening, in closing, many lawyers get lost in the facts, and the moral power of their case gets lost as well. This is the time to tell the jury why it is right and fair that they give the verdict to your client. [...]
Soft-Tissue Injury
While waiting at a stoplight, Diane Robertson is rear-ended. She tells bystanders she is “fine.” Two days later, Diane goes to the doctor describing (never “complaining of ”) neck pain and pain radiating into her left arm.
If Diane Robertson is a liar and a fake, you should return a defense verdict and send her out of here with nothing. But if she is telling the truth—as the defense knows she is—then the defense should be ashamed of themselves.
This is the real moral issue in this case, isn’t it? It is possible Diane is a cheat. In that case, she should be thrown out on her ear. On the other hand, if the defense is calling her a cheat to escape responsibility, that is morally reprehensible. Thus, the case is polarized. There are two morally reprehensible possibilities here, and the question becomes, which is more likely?
This approach also forces the jurors to really focus on what the defense is asking them to do—call the plaintiff a liar. That is a difficult thing for most jurors to swallow absent compelling proof.
Does someone who is looking to “cash in on a minor accident,” like Dr. Defense says she is, get out of the car and say, “I’m fine”?
Does someone who is looking to cash in on an auto crash keep going to work for three weeks after the crash?
(Here, [you list] additional facts inconsistent with faking.)
You know what else? The life someone has lived before coming to court should count for something. You have heard about Diane. She has played by the rules all her life. Worked hard, is raising a family, volunteers at her church. The people who know her best told you about her character, the trust they have in her, her reputation in their communities.
That is the person they say is lying to you. Lying to her family. Lying to her friends.
Or maybe she is not lying to them. Maybe the defense wants you to believe all these other people are in on the scheme with her—they are all lying.
It is fair to ask Mr. Defense lawyer, when he gets up, to answer these questions: Is it the defense position that Diane is the greatest actress that ever lived, and has managed to fool all these people who know her so well? Or is it the defense position that all of these people are lying too? Which is it?
Obviously, the closing would include arguments about the IME doctor and damages, but the vignettes above show how some of the obvious moral energy can be utilized.
Plaintiff with Admissible Burglary Conviction
While driving through an intersection with a green light on his way to work, the plaintiff, David, is hit by a Best Dairy eighteen-wheel truck that runs a red light. The plaintiff is a carpenter. He has a five-year-old burglary conviction, which the court has ruled is admissible at trial. The IME doctor admits that David has a herniated disc as a result of the accident but implies that David is exaggerating his symptoms.
[A]ddress the moral issues head-on:
In a way, your verdict will say as much about you as about David. There are people in the world who believe we are no better than the worst thing we have ever done. There are people who believe that people cannot change and improve themselves. Best Dairy is hoping you are people who believe such things.
You saw how often during this trial they brought up David’s burglary conviction. You also saw how little time Best Dairy’s lawyers spent talking about the medical issues in this case. They hope you see the burglary conviction and nothing else. But as you now know, there is a lot to David and his life besides that one episode.
Mark Wahlberg, before he was a famous actor—before he was even an actor of any kind—attacked two men with a wooden stick, leaving one blind in one eye. He was charged with attempted murder, pled to a lesser charge, and was sentenced to two years in prison.
Since then he has turned his life around in many ways. He did not receive his high school diploma until he was forty-two years old. He has supported numerous charities and has had a great career in film.
When he was twenty-five, actor and comedian Tim Allen was caught with over a pound of cocaine and was convicted of felony drug trafficking. Yet, like David, he paid his debt to society and went on to lead a productive life.
And of course, we all have known less-famous people who made mistakes at a young age and later became model citizens and positive forces in their communities. One of you may be one of them.
The examples you use will depend on your venue. In some parts of the country, biblical stories may be particularly powerful; in other parts, they will be offensive to some. The point is to give the jurors examples of people they think highly of who made serious mistakes in their early adult years but came back to lead exemplary lives.
The moral issue is exactly what is stated in the first paragraph of the argument above: some believe people can change, others don’t.
Another theme that can resonate for the jurors is this:
We have all heard the phrase, he paid his debt to society. Most of us never think about what that means. It means someone has broken the law and now owes our society something. They get put in prison to show that everyone needs to follow the law and there will be consequences if they don’t. But once they serve their prison term, they are welcomed back to society and expected to follow the rules from then on.
You heard the evidence. I am not going to make excuses for him, but is it any surprise that someone born into the world he was born into got in trouble with the law? No. What is surprising is his determination to turn his life around, and that he did it so effectively. He not only paid his debt to society, but he became a model citizen, and no one has or can say differently.
If you reduce his verdict because of what happened five years ago, you are punishing him twice for the same thing. That is not fair.
But even worse, you are taking another lawbreaker—Best Dairy—and saying it won’t be held fully accountable for its own law-breaking. You will be saying to Best Dairy, “When your truck ran the red light, you could have hurt or killed school children, a teacher, a doctor, a minister, but because you hurt someone with a burglary conviction, we are going to let you off easy for your law-breaking.”
That is what Best Dairy wants you to do. It isn’t fair; it isn’t right. I ask you to treat David like any other law-abiding citizen of this country.
Plaintiff with Poor Job History
Twenty-eight-year-old plaintiff Joshua is hit by a Big Box truck that runs a red light. The plaintiff never finished high school and has never held a job for more than six months. All jobs have been relatively low-paying, entry-level jobs.
[Take] the worst fact—the plaintiff can’t hold a job—and [turn] that into a positive moral force in the courtroom. The power of this argument comes from the fact that it is true—it is the truth the defense does not want the jury to see.
Most of us get discouraged when something goes wrong in our lives. We fail a math test; we don’t get a promotion; we have a fight with our spouse.
And most of us, if we have enough of those discouragements, give up. We fail enough math tests and we decide we are not good at math and avoid math classes. We get passed over for promotion enough times and we give up on it, maybe don’t work as hard, maybe look for another job. We fight with our spouse enough and maybe we even give up on our marriage. It is just human nature.
If anyone ever had good reason to give up, it was Joshua.
(Here, [you] might go through harsh facts of his life, all the strikes against him.)
Rather than join a gang, go on welfare, or become a drug addict, he got a job. It was a job he wasn’t suited for, one he had never been prepared for. And he lost it.
You heard the story. I won’t go back through it. But through setback after setback, with little to no help from anyone else, Joshua kept going.
His is a story of hope. For some reason we may never understand, in addition to being born with all those strikes against him, he was also born with what some call resilience, but I think of as hope. He was determined to improve himself, and he was never going to give up the hope of doing that.
So on [date of accident], he had yet another setback. And remarkably, he still has not given up hope. You’ve heard about his efforts at physical therapy; you’ve heard about his applying for grants to go to community college. But this time he is really going to need some help. He is now a young man with little education or training—and now, only one leg.
He needs your help. Not charity. Not pity. Compensation under the law for the harms and losses he has suffered. And with that fair compensation, he can take his resilience, his determination, his hope, and make something of himself.
Notice that to a large extent, all the sample arguments in this chapter, while based in fact, are essentially moral arguments. That is where the power is.
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