The Litigator must be fit to Close effectively

The Close is the second of the Three-C’s—those essential skills that a Litigator must do with excellence if he wants to be an excellent trial attorney.

The first C is the Cross, the purpose of which is is twofold—first, to call into question hostile witness testimony on material facts in dispute to enable the Litigator to meet or defeat the burden of persuasion during the Close; and second, to gather evidence to meet his burden of production at the close of evidence. The third C is Counseling, wherein the Litigator guides the client through the litigation process like a frontier scout leading a family of pilgrims through the wild west.

In the first five L-Points we broke down the tactics and strategies of delivering an excellent Cross under the overarching principle that the Litigator Crosses to Close. In other words, his Cross should be designed to enable him to use his Close to meet his burden of persuasion on those Issues for which he has the burden of proof—and, for those Issues for which his Opponent has the burden of proof, to persuade the jury that it has not been met.

Once he has completed his Close, there is nothing left for the Litigator to do in the trial but listen to the court read the Instructions to the Jury (and speak up afterward if the judge varies from them), respond to the jurors’ questions during their deliberations and manage the immediate aftermath once they have delivered their verdict. In this way, the Close is like the Litigator’s final push to the finish line after a grueling marathon—he needs to have enough left in the tank to be effective.

Comparing a jury trial to a footrace may seem like an overstretched metaphor. After all, aside from hauling your exhibits and trial materials from the car to the courtroom, there is very little physical exertion required—it’s primarily a mental exercise, and even more so in jurisdictions (like North Carolina) that require the Litigator to remain seated during the questioning of witnesses. And yet, despite the lack of bodily effort involved, the ordeal of a five-day jury trial will leave the Litigator both mentally and physically exhausted. There are a three reasons for this apparent anomaly.

First, purely mental stress does have a physical impact. Even though it may only be the brain being taxed, the body feels the effect. I don’t have a scientific explanation for this phenomenon, but I know it to be true from experience. Second, during the trial (and often in the days of preparation leading up to it), the Litigator will not get enough sleep. He will work deep into the night or get up long before dawn (if he is hard-wired that way—as I am). Likewise, the stress of the daily trial grind will make it difficult for him to sleep soundly even when his head finally does hit the pillow. Lastly, the Litigator will eat poorly during the trial, and maybe even drink too much alcohol in an effort to shut his brain down and get some sleep. All of this will lead to a state of near-exhaustion for the Litigator right at the moment he needs to make his final kick and Close his case effectively.

When I first started trying cases I accepted this state of exhaustion as a condition, something unwanted that I had to live with because it could not be changed. Because I viewed it this way, I made no deliberate effort to prepare for pre-closing exhaustion because I saw it as inevitable. I would just grit my teeth, stoke up on coffee and give the best closing I could in my exhausted condition. Afterward, I would sit slump-shouldered through the court’s reading of the Instructions hoping the jury wouldn’t notice me trying to keep from face-planting on the counsel table.

Although I want to believe I still gave some good closings despite my fatigue, I wonder how much more effective I would have been with something left in the tank. Also, despite the fact that the courtroom lawyering ends with the start of deliberations, there is still a considerable amount of Counseling left to do while the jury is out—and that takes energy to do well.

My observations of my Opponents during this period of my development as a Litigator confirmed my belief that pre-closing exhaustion was an invariable condition for a trial lawyer. Because they always looked as tired as I felt, I had no reason to believe there might be another way. I might still believe that if I hadn’t tried a case against “Steve”.

Steve was a lawyer from out of state who I’d never seen before and haven’t since. During discovery, he had left most of the work to his local counsel so I never met him until the first day of the trial. The first thing I notice about Steve was that (unlike me) he was in good physical shape. This was during a time in my life when I suffered from very inconsistent fitness. I would go months without exercising, get too fat for my suits, and then use a draconian diet and exercise routine to get back into a reasonable facsimile of shape—even then, I was not in anywhere near the shape that Steve was.

Another interesting thing I noticed about Steve was his routine during recesses. As soon as the jury was out of the courtroom, he would pull a protein bar out of his briefcase and swallow it down with a half a cup of water. During lunch, when the rest of the lawyers and parties went to the restaurant near the courthouse and ate lunch, Steve would duck into a conference room and shut the door. I found out later that he went in there to sleep and “think” about things other than the trial we were conducting.

When Steve stood up to Close, I could see through the haze of my fatigue that (unlike me) his energy was surging rather than waning. His shoes were polished, his tie was properly knotted and hands were steady. He looked like a man fully rested and ready for a very important job interview which, in a sense, is what Close is—it’s the only opportunity you are going to get to convince 12 silent interviewers to make the choice you want.

While the jury was deliberating I asked Steve about his routine. He told me that he didn’t view pre-closing exhaustion as a condition that could not be changed but as a problem that he had worked hard to solve. And his solution was to maintain excellent physical condition through vigorous daily exercise and diet. That way he was prepared for the rigors of trial. He also told me that during the trial ate smaller meals more often so that he was never hungry or full and took that daily nap at lunch to refresh himself for the afternoon.

“But what about the half-cup of water? What’s that for?”

“I want to stay hydrated” he told me, “but I never want to be distracted by a full bladder”.

After my encounter with Steve I slowly adopted his methods, and found that they worked. Being fit, both physically and mentally, had a significant effect on my energy level throughout the trial and left me energetic rather than exhausted when it came time to Close.

From this experience comes the First Principle Of Close: Maintain Healthy Routines.

Help the jurors solve their problem

You can pressure someone into buying something they don’t need, but only if you are able to stay in close enough proximity with them that they don’t get a chance to think for themselves. Once they get some time away from you, they will come to their senses and start remembering all the reasons they don’t really need what you’re trying to sell them because it doesn’t solve a problem they are having. That’s why a car salesman doesn’t want you to leave the dealership to make your decision whether to buy a new car. His best chance to make a sale is when your nose is full of that new car smell. Once you walk out the door, your head will start to clear and that old car of yours won’t seem so bad. A new car is nice, but it doesn’t solve a problem that you have.

This is one reason that the jury deliberates outside of the courtroom. Imagine if the jurors had to reach a verdict with the lawyers in the room hammering away at them until they finally surrendered to one side or the other? They might end up “buying a new car” rather than solving a problem.

It’s also the reason that a Litigator shouldn’t focus his Close on trying to convince the jury to solve his client’s problem. That would be like trying to sell the jury something that they don’t need. Once they get into the jury room their heads will clear and they will start thinking about what they need, the solution their problem, which is how to come to a just verdict in the shortest amount of time that is reasonably possible.

While a Litigator has to be somewhat cynical to do his job, he can’t be excellent at it if he is cynical about the underlying motivation of the average juror. If he thinks jurors don’t care about the outcome and only want to go home, then he should find another area of law in which to practice, because that belief does not square with the truth. In truth, most jurors do want to fulfill their sworn duty by delivering a just verdict. And that desire increases as the trial progresses. With each passing hour a juror’s sense of commitment deepens with the compounding investment of his time and attention.

Many times I have encountered jurors whose irritation during voire dire at having to serve has transformed into respect for the process by the time the verdict is reached. This reinforces my belief that baked into every person’s hardwiring is the desire to serve his community. But that natural desire will sour to the degree that the form of service is compulsory, purposeless and/or a waste of time, because then it is not really service at all, but an enforced drudgery akin to breaking big rocks into little ones.

While there is nothing we can do about the compulsory aspect of jury service, there is one very important thing that Litigators (as a group) can do to make jury service both purposeful and efficient—we can be excellent at our jobs. When both lawyers try a crisp case that frames the Issues sharply, the jurors have a clear understanding of the importance of their purpose and will come to an efficient and just verdict. After such a case (during the juror interview) I have consistently noted the upbeat sense of accomplishment they exude, viewing themselves as an integral part of the dispute resolution team rather than a bedraggled gang of galley-slaves pulling oars to the beat of a centurion’s drum.

Conversely, if one (or both) of the lawyers tries a sloppy case that takes twice as long as it should, the jurors will gradually begin to feel like captives to an incompetent process. As their level of frustration grows, their willingness to carefully deliberate (when finally released from the thumbless clutches of the attorneys) will wane. Imagine how a juror must feel after four or five days of slogging through evidence to then (with the finish line in sight) have an attorney waste another hour of his time repeating it all. It would be like watching a slide show of a vacation you never wanted to take. Lawyers who do that violate the Second Principle Of Close: See Through The Jury’s Eyes, rather than through lawyer-eyes.

Seen through lawyer-eyes, the Close is a phase of the trial made necessary by tradition, rule and the standard of care. The provision to the fact-finder of a summation of the case presented arose by tradition long before it was codified by any jurisdiction. It just feels necessary, in a way that would make it unnatural for the Litigator to not do it. But even if he felt otherwise (maybe because his case was so weak that he had little to say), the Litigator would still Close because the standard of care requires it. In other words, failing to give a closing argument would be malpractice.

Yet, although the closing argument may be a necessity for the lawyer, seeing necessity as the reason for giving it will inevitably lead to a Close that is ineffective, because it only solves the lawyer’s problem and not the jury’s problem. Seen through the jury’s eyes, the Close is not necessary at all, it’s only another block of time confiscated from their lives by lawyers. Thus, the Litigator (seeing through the jury’s eyes) Closes not because it is necessary for him, but because it is helpful to the jurors in their effort to reach a just verdict in the shortest amount of time reasonably possible.

My first jury trial was a criminal case. My client was accused of possession of crack cocaine with the intent to sell and distribute. The state had a decent hole in its case in that the drugs and drug-dealing paraphernalia upon which it relied were all found under the passenger seat of the car my client was driving when stopped by the police. While the other passengers in the car all ran (and got away), my client stayed behind the wheel to be arrested and charged on the basis of what the police found.

Solving my problem, I argued to the jury that my client had not run because he didn’t know that his passengers had secreted contraband underneath their seats in his car. Their flight was evidence of their culpability, just as my client’s repose evidence of his innocence. The jury nodded their heads as I made that argument, and then convicted my client in about twenty minutes.

When I questioned the jury afterwards, they told me I had made a compelling argument, but (one very nice woman said) “we just thought your client would be better off in jail where he could get help for his drug problem”. Mystified, I asked her how they had reached that conclusion when my client had not testified and there was no evidence introduced by the state regarding drug use.

“Well,” another juror replied, “why else would he be driving around at night with drug dealers if he didn’t have a drug problem?” Huh—I hadn’t thought of that, because I was looking at the case through lawyer-eyes. While I was focused on exploiting the legal holes that I saw in the state’s case the jury was focused on reaching a just verdict. For me to have convinced them that my client was merely an innocent driver, my client would have had to provide a convincing reason for his ignorance of what his passengers had stashed under his car seats—like he had picked them up hitchhiking (which he hadn’t).

What I learned from that experience was to imagine myself as a juror listening to my own Close and ask myself whether it helped him reach a just verdict (which solved his problem), or whether it only met the technical and professional requirements of what a closing is supposed to be (which only solved my problem).

It’s about persuasion

I applied for a sales job once. I was interviewed by a very direct guy who asked me pointed questions that I couldn’t answer because I had never worked in sales—at least directly. Towards the end of the interview, which wasn’t going well, he asked me to name the salesman’s most important trait, the one thing he must have to succeed.

I thought for a few seconds and answered “perseverance”.

“Huh,” he responded, “what about persuasiveness?”

“Aren’t they kind of the same thing?” I asked.

“Not really. For instance, you have persevered through this interview but you haven’t persuaded me to hire you.” And he didn’t. Ultimately, I ended up going to law school.

I have still never worked in sales, at least not directly, but I did eventually learn the difference between persuasiveness and perseverance. I have also discovered that without at least an ounce of the former, it won’t matter if you have a dump-truck full of the latter. People don’t move away from the status quo because they see you trying very hard (although they might admire your effort), they move because you have persuaded them to do so.

I have found that most lawyers are not very persuasive, and that’s not a rap on lawyers because most people are not very persuasive. There are no born persuaders and very few of us learn to master the skill because it cannot be reduced to a finite set of steps or sub-skills. It requires a change of attitude. You can read every book ever written about the subject (and I think I’m a good way towards having done that) and you still won’t be any more persuasive than you were when you started unless and until you start to think of yourself as a persuader, and then act accordingly.

In this way, learning to be persuasive is no different than mastering a foreign language. You can memorize twenty-five thousand words of Greek and study Grecian language structure to the point that you could almost teach grammar at a high school in Athens, but until you start thinking in Greek you won’t be able to communicate effectively in the language. You’ll just be a guy who knows a lot about the subject.

People who begin thinking like a persuader realize that their former approach to doing it needs to be inverted. Non-persuaders focus on the information that they think people need to make the decision to move, assuming that once a person is as fully informed as the non-persuader believes he is, then they will begin to move to the place where the non-persuader already is. For the non-persuader then, motivation naturally follows information.

The persuader sees it the other way around. He knows that unmotivated people are strongly resistant to information that does not confirm their bias in favor of non-movement. So, feeding them information prior to their having made the decision to move is a waste of time. Now, once they have moved (at least a little), providing them information that confirms that decision will tend to increase their pace of movement. Thus, for the persuader, motivation necessarily precedes information.

How this translates to Close is fairly simple. Summarizing the facts and explaining the law are part of closing, but they are only the provision of information, and that alone will not move the jury to your side. To do that, you have to persuade the jurors, and that starts with motivation rather than information. You must give them a reason to start thinking that your side is “right”, the other side is “wrong” and they are the only people who can fix that inequity.

Efficient provision of information will make a lawyer competent. But it takes effective persuasion to make him a Litigator.