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<\/p>\nIn one iteration of his \u201cTen Commandments\u201d lecture on cross-examination, the famed advocacy teacher Irving Younger posited that \u2018less is more.\u2019\u00a0 When showing a witness\u2019 bias, you need not call them out as a liar; instead, simply argue in closing \u201cand the witness, who testified for the defendant \u2013 it\u2019s their mother.\u201d\u00a0 According to Younger, it will be the jurors who go in the back and say \u201cmom was a $@*^* liar.\u201d<\/p>\n
A variation on this lesson is to never take the extreme position.\u00a0 Why argue that \u2018the only way\u2019 something could have happened is X, or that the person whose conduct was at issue was reckless when negligence is all that need be proved?\u00a0 Once the \u2018goal line\u2019 is moved to your disadvantage, any proof one inch short becomes a verdict for your opponent.<\/p>\n
But this principle may need to be flipped on occasion.\u00a0 I learned this first some 35 years ago when co-teaching an advocacy course with a great trial attorney, Hastings Griffin.\u00a0 When it came time to demonstrate a closing argument in a mock civil case file where the accusation was that a nurse\/caretaker had somehow gotten control of an infirm person\u2019s assets, Griffin said something along the lines of the following in defense of the nurse:<\/p>\n
Members of the jury, for the plaintiff to prevail you must be convinced that [name of nurse] is a criminal, a person who spent years caring for others but has now become a thief.\u00a0 She isn\u2019t.<\/p>\n
That was his closing in its entirety.\u00a0 When he sat down I was slack-jawed.\u00a0 How could a closing not regurgitate the facts, discuss the law and the burden of proof, and anticipate and debunk the opposing party?\u00a0 Had we failed our students?<\/p>\n
Certainly, we had not given them the elements of a standard closing.\u00a0 But Griffin saw through the case, that it came down to whether the nurse committed an act that was not just tortious but also broke the law.\u00a0 In effect, he polarized the matter.<\/p>\n
At least that is the term I now find appropriate for his nothing-short-of-brilliant 30 second argument.\u00a0 And credit for that term goes to legendary plaintiff\u2019s lawyer and author\/lecturer Rick Friedman, known to many for his RULES OF THE ROAD book and approach.\u00a0 Less well known, but of great importance, is his 2007 POLARIZING THE CASE (Trial Guides 2007).<\/p>\n
<\/p>\n
POLARIZING was written as a guide to challenge claims of injured plaintiff malingering. \u00a0Friedman explains that when such an extreme stand is taken by your opponent it is not worth trying to see where your expert and the defense expert(s) agree. As Friedman writes, if on a spectrum of 1 to 10 your position is 3 and your opponent\u2019s is 8, don\u2019t try and move their expert to 4, 5 or 6. Instead, polarize the case, i.e.<\/em>, make their expert(s) take the most extreme stance possible:<\/p>\n As he goes on to explain,<\/p>\n \u00a0Using the polarizing choice, you do not undercut your own client.\u00a0 You are giving the jury two choices\u2026Plaintiff\u2019s version is still: \u201cI was injured, and I am still injured.\u201d \u00a0Defendant\u2019s version is pulled out into the light for all to see:\u00a0 \u201cPlaintiff isn\u2019t injured; she is a liar, a cheat and a fake.\u201d\u00a0 Rejecting plaintiff\u2019s version means accepting defendant\u2019s version\u2026<\/p>\n \u00a0 If you disprove the defendant\u2019s version, you are likely to win.<\/p>\n POLARIZING, 40.<\/p>\n Friedman\u2019s ultimate stance is that polarizing is liberating as you speak the truth to the jury, an act that is likely to be welcomed by the jury.\u00a0 And it is not limited to malingering claims. Don\u2019t take your case to an extreme, leaving the jury few options to rule in your favor \u2013 but when the opponent is extreme, polarize the case.<\/p>\n","protected":false},"excerpt":{"rendered":" In one iteration of his \u201cTen Commandments\u201d lecture on cross-examination, the famed advocacy teacher Irving Younger posited that \u2018less is more.\u2019\u00a0 When showing a witness\u2019 bias, you need not call them out as a liar; instead, simply argue in closing \u201cand the witness, who testified for the defendant \u2013 it\u2019s their mother.\u201d\u00a0 According to Younger,<\/p>\n","protected":false},"author":31,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"generate_page_header":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[3],"tags":[],"coauthors":[330],"class_list":["post-3739","post","type-post","status-publish","format-standard","hentry","category-advocacy-and-evidence-blog"],"yoast_head":"\n\n