June 05, 2018

JURY SPEECH RULES is a handy, and easily read and digested, guide to the ‘rules’ for courtroom speeches – the opening statement and the closing argument.  It is a mostly correct distillation of decades of wisdom on story-telling, primacy and recency, and persuasion.  And it has an added value, a discussion of ethical concerns that arise when lawyers orate in court.

At its best,  JURY SPEECH RULES is a checklist with explanations and occasional anecdotes.  If the checklist were adhered to, it would probably result in the improvement of most trials in the United States.  Here are just a few of the fundamental reminders for openings:

  • “[T]he first ninety seconds of an opening are the most important in a trial [because] the jurors’ attention to you is most intense…”
  • Tell a story in the opening, with only the facts essential for jurors to remember the basic contours.
  • “If there are serious problems with the evidence…or negative facts…address these issues directly [in the opening, but] minimize the time spent on this information.”
  • Never give a witness by witness account of what will be heard.

Both for openings and closings, the importance of visuals and demonstratives is made clear.

Less helpful were the rules for closings.  Those posited were general, and what was omitted was an overarching skeleton or framework for the trial’s finale.  As well, simply telling lawyers to address the burden of proof “head on” offers little guidance on how or when, or on whether it benefits counsel to claim that the proof is so strong that the burden is easily surpassed (as this last approach might end up suggesting that counsel has assumed a greater burden than the law imposes).

One important suggestion/rule is for the closing to include challenges to opposing counsel, questions that are difficult if not impossible to answer.

If you speak first, pose those questions in the middle of your closing…and then come  back on rebuttal to review whether the defendant effectively answered those questions.  If your opponent gets rebuttal, make sure that your questions can stand on their own…

Why in the middle, and not near/at the climax, is not explained – but the process of throwing down the gauntlet is a useful one.

What specifically do I criticize?  For openings, the authors suggest that in a criminal case the defense “might consider postponing its opening statement to avoid the risk of giving credence to prosecution positions that wind up unproven…”  This is disastrous advice – without a defense opening, the prosecution will have framed the story, created expectations, and essentially programed the jury.

JURY SPEECH RULES has a useful discussion of ethical issues in jury speeches, and an intriguing discussion of the Lizzie Borden trial.  So there is much to commend here, but the limitations and weaknesses detailed above prevent this from being the ‘go to’ guide for jury trial speeches.




Jury Speech Rules: The Art of Ethical Persuasion By David Malone and Warren Radler Publisher: NITA