Podcast - Connecting Separate Pieces of Evidence Clearly, Persuasively

Dan Small: For centuries, people have been aware that different methods of expression make the speaker's words more powerful, more informative, or more persuasive. The ancient Greeks called it the art of rhetoric, and it was considered an important field of study, well into the 19th century. In the modern world, few people study rhetoric or consciously apply labels to their forms of speech. But rhetorical devices still exist. They remain effective, and many are commonly used in the courtroom. Here are three basic ones: lists, anaphora and rhetorical questions.

First: lists, a simple and effective way to communicate information is to present it in the form of a list. We use lists every day in our lives to organize information, things to do, shopping lists and make it easier to understand and remember. The courtroom is no different. Use verbal and written lists to organize and communicate your points. Almost any kind of argument can be turned into a list. There are seven key pieces of evidence found in the victim's bedroom:

• First, the defendant left a fingerprint on the door.
• Second, he left several hairs on the pillow.
• Third and so forth and so forth.

Or how about there are four things that the government or the plaintiff must prove. First, second, third and so on.

Lists can also be turned into visual aids and should be turned into visual aids. If you want the jury to focus on seven pieces of evidence, make a chart listing them one through seven, and then show it to the jury and use it with your witnesses or in your argument. No one will ever complain that you were too organized.

Next is anaphora. Anaphora is a rhetorical device that consists of repeating one or more words at the beginning of a series of related sentences or clauses. Countless examples can be found in law, literature and politics. Here are three famous ones:

• Winston Churchill addressing his countrymen during England's dark days of World War Two. We shall defend our island, whatever the cost may be. We shall fight on the beaches. We shall fight on the land and grounds. We shall fight in the fields and in the streets. We shall fight in the hills. We shall never surrender.
• Or Abraham Lincoln in his wonderful Gettysburg Address. But in the larger sense, we cannot dedicate, we cannot consecrate, we cannot hollow this ground.
• And of course, Martin Luther King in his famous I Have a Dream speech. I have a dream that one day this nation will rise up and live out the true meaning of its creed. We hold these truths to be self-evident, that all men are created equal. I have a dream that one day on the red hills of Georgia, the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood. I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.

Anaphora sounds like a strange word, but yet it's one of the most powerful and effective courtroom techniques. It adds emphasis and order and often an element of drama. Moreover, it's seductive. It draws the listener in. It works in argument.

"She did not mention that fact to the officer who responded to the scene."

"She did not mention it to the officer who interviewed her at the station an hour later."

"She did not mention it to anyone, anywhere at any time over the next three months."

"And in cross-examination, did you mention that fact to the officer who responded to the scene?"

"No, you did not."

"Did you mention that fact to the officer who interviewed you at the station?"

"No, you did not."

"Did you mention that fact to anyone, anywhere at any time over the next three months?"

Next, rhetorical questions. Rhetorical questions are useful devices in both openings and closings. In fact, they're used so commonly that it's rare to hear an opening or closing without at least one. In openings, they can set up issues, pique interest, or disguise argument.

As you listen to the evidence ask yourself: why would someone knowingly sign a false document if he had nothing to gain or nothing to hide?

In closing rhetorical questions add focus and interest.

"Jane Smith says she spent thousands of dollars to fix the damage. But where are the bills? Where are the receipts? Where are the canceled checks? Where are the credit card statements?"

Rhetorical questions are not, however, foolproof. Don't ask a question if you're just pitching a softball to your opponent to hit it out of the park with a better answer than you have. And don't ask a question that invites a juror to supply a harmful answer.

"Ladies and gentlemen of the jury, who would believe such a story?"

And Juror six is sitting there silently thinking, "Well, I would. It sounded right to me. Does he think I'm an idiot?"

One of the great challenges for trial lawyers is to connect separate pieces of evidence in a way that is both clear and persuasive. These rhetorical devices are among the most important tools for meeting that challenge.