Arguments: Tone, Concessions, and Flinching
On yesterday’s installment of Trials and Tribulations, I talked about how tone, pacing, and providing details while telling the story of the case during closing arguments is far more persuasive than emotive arguing that causes the jury to flinch backwards.
Today, let’s look at why.
Can I make concessions in my argument? Yes, it is fine to concede something, but let’s try to make the concessions innocuous. Conceding the obvious gives us credibility.
There were many times in arguments during trials involving drug trafficking defendants that I would say to the jury things like, “we aren’t trying to convince you that the defendant is some sort of drug kingpin. In fact, he’s not. The evidence surely didn’t indicate that. Selling 6 ounces of methamphetamine does not make one Pablo Escobar. But the defendant isn’t charged with being Pablo Escobar. He is charged only with selling more than 50 grams of meth. And the evidence showed that he was charged exactly according to what he is – a small-time drug dealer. A GUILTY small time drug dealer!”
However … it’s probably best not to concede so many critical elements of your opponent’s case that you seal your own fate.
It’s also a good idea not to yell at opposing counsel.
Moreover, here is Exhibit A for why it is a terrible idea to represent yourself!
There is a lot to unpack in the attached video, but suffice it to say that this is … bad strategy. The defendant, representing himself in a murder trial, gives a closing argument wherein he concedes that he is completely guilty, but he is completely guilty in a less bad way than what the prosecution claims.
His outrage certainly is not going over well with the judge, and I’m sure it didn’t go over well with the jury either! The judge flinches a bit with her expression, and I guarantee the jury was leaning backwards as the defendant yelled!
Quick trial tip. It can be VERY tempting to react to ridiculous statements and arguments made by your opponent. The prosecutor here – understandably – visibly shakes his head as the defendant argues that the prosecution produced fraudulent recordings. My advice to him?
“Brother, don’t react. The jury gets it. You’re just distracting from your enemy while he is making a mistake! And you’re making it look personal (it obviously is for the defendant).”
No matter how absurd our opponent and no matter how nonsensical the arguments, our goal is to remain the professional in the room.
