I have posted some of this info in the AL Tapes and Lectures thread but thought I would bring some of it here with some new thoughts.
These are my notes taken from listening to her lecture via MP3 file found on the internet. Please listen to the lecture for full content. My thoughts in red.
Andrea Lyon speaking at The Kentucky Public Defender College
Storytelling in Opening and Closing : Recorded at DPA Conference in 2008
Jurors tell stories during deliberation in order to change another jurors mind.
We can use stories in court smooth over things.
Opening arguments, give you the opportunity to engage your audience and to help them see another perspective. It is not what you see but how you see it.
4PM Friday afternoon is her favorite time for “stories”. And apparently for filing motions too...
Create an opportunity for jurors to step outside their own experiences and to travel into the world of your client.
80% of decisions on a case are made by the end of opening statements.
It is easier for prosecutors to tell a story.
Opening Statements should keep in mind: “What is the story?” not what you plan to show. You have to ask yourself “Why should they vote with you?” Tell them right away. What your jury hears first and last is what they will remember.
Commercial analogy…. “Get to the audience right away from the start.” Themes, slogans, stories are crucial. Death is different.
Your job is to find a way to encapsulate your case with a slogan.
Don’t waste the jury’s time by introducing yourself. Only thank them after they vote your way. Because being sequestered away from family for 6 weeks or more is not worthy of thanks.
You cannot sell what you wouldn’t buy. Find a theory of the case works with you and your point of view and work with it. Yes SODDI. Now who to trash.......who to make your pawn.
Tell the story so that you are deeply persuaded yourself.
Establish rapport….you believe what you are saying. Discuss your own concerns or feelings about certain aspects of the case. Admit that there are some aspects that trouble you. Even if there is a part of the case you are not going to look at closely and you look more closely at others.
Make sure jury knows that cross examination is your evidence.
Jury doesn’t know it is evidence.
Judge says consider all evidence, but most prosecutors and judges fail to instruct you that info from cross examination qualifies as evidence. I think Judge Perry has this in mind already.
Leave yourself a place to go in opening. Only promise only what you can really deliver. Leave some info to mystery…. “Wait till you hear about….” Kind of like JB saying we will all finally understand.
Remember……. “A witness from jail is bought and paid for”. Wonder who asked the jail snitches to talk??? Hmmmm
The jury should be told about any deals cut with witnesses. Then remind them why they should be shocked and appalled by these “deals”.
Build the story up in opening. Have props. Anything you like, plate of spaghetti, anything demonstrative. It doesn’t have to be fancy, just visual. YES SHE ACTUALLY SAID SPAGHETTI.
If I seem to know too much about the case the jury will assume I must have heard it from my client. Tell them you learned about this info from discovery and investigations not from witness. It is important to remind the jury what discovery is, that both sides use it in preparing their case, and to make sure that they know that just because I seem to know a lot, it does not mean I got any of it from the client. I can't help but think that JB NEEDS something particular to show up in discovery and it hasn't. Perhaps a tidbit KC told him about that he NEEDS to say he found via discovery.
Take the wind out of oppositions sail.
You have to be prepared for something ugly out there.
Be matter of fact in opening.
In Closing: Give jury permission to feel ok for voting with you. Understand their hesitation and give them permission to vote with their hearts.
Ask them to find a lesser offense. Find stories to give them permission. They vote with their hearts. Closings need some evidence. You can’t win at closing. You can lose it at closing. There is something on both sides. That’s why you are trying the case.
Tell them I was told………when sharing certain information.
People remember in threes. Structure of your open or close should utilize a concept with 3 words.
Do not patronize jurors.
Rule of 3 works.
Use analogy.
Regarding length of time needed for open or close….. Judges ask how long do you need?
I answer “a while”.
I spent 2.25 hours in a close while I was pregnant.
Most people are able to speak 200 wpm……… but they think at 600 -650 per minute…..you can hear info, process it, and argue against it in your mind. SO ask yourself…..what would a juror be arguing with me about in their mind? Then argue those concerns in your closing.
Elements of story: Content, theme, theory, structure, memorable phrase or image.
At this time AL plays different theme music selections to illustrate the feelings they evoke.
I think to myself… “What would be the music of this case?”
Present certain locations visually. Describe the interrogation room as scary.
Develop a slogan.
Tell the jury right way why they should see your point.
Cross examine LE…..read police training books and detective training. Find details to focus on that they didn’t do. This has been going on since day 1 or 31. The police never looked at anyone other than KC... She was victimized too. Blah blah blah
Paint pic of case so jury can see it.
Think place, person, time, thing…….
Establish locations in the case as public places. Where anyone else could have been as well. Like Dominic Casey, Kronk, random people in the woods. ANYONE but my client could have done it.
Phrases you hear in court make case come alive or have an impact on jury. Like "quite frankly"???????
Make the jury react. Make your client likable. Dress her in frilly shirts so she looks innocent.
Don’t ignore privacy. Except for the privacy of witnesses, volunteers, and people who cared about a child. Yes their privacy is no concern. Be sure to demand privacy for your client though.
Speak as if there is music accompanying you.
Even if confessions are forced they will still work against client.
Create symbols of case. Use descriptive words. Paint the picture.
Give jury a way to think of something differently. Use slogan. Find analogies…..square peg / round hole, use fables,
Insanity…. You are about to watch the process and program of mental illness. “Prosecutors may tell you that client had no reason to kill her husband but you can look at her face and scars and past abuse to see her reason.” That bus has been rolling faster and faster lately Perhaps this is why the defense is stalking EVERYONE. We already see the groundwork for KC was abused and snapped.
Do:
Develop a statement, know your own emotional point of view, “what do I want to convey to jury?” (Was the officer overworked, biased, Lazy?)
Investigation gets you info to use. And don't forget to harass and stalk everyone that you can in hopes of finding or CREATING a witness.
Use analogy… “This client was so damaged internally that the smallest step sent them over the edge to insanity.” Concrete seems stable outside but may be so internally flawed inside that it crumbles.
Set a scene. Use your body to show what you mean. Act events out in open and close. Use physical self to set scene. I did a closing argument handcuffed. Make places LIVE. Use direct stories. Story about decision they are going to make. (Closing)
Voir dire: Quote from voir dire……..There was lots of publicity about the case. It was a 57 yo woman who wrote a bad check at toys r us to buy gifts for grandchildren………. During voir dire there were groups / small group / individuals participating in voir dire…. I asked the court reporter to transcribe just what had been taken from those interviewed under guise of running around and having a hard time keeping up with all groups. Under guise of really means means I lied!!!!!!!!! .
All jurors had been asked and answered as to what they thought mitigation meant. I looked at jurors and said blah blah blah and would pull from their statements made in voir dire in order to directly appeal to each juror. I sure hope Judge Perry thwarts that BS.
Pull from what you feel and use it. Get to the place where you can connect to case. Emotionally connect to case to show you are there because you care. Use demonstrative things, recreate interrogation, setting,
Admit the prejudice you may have had regarding eyewitnesses in order to dispel jurors same impressions. Client was a 6 ft 9 PR guy…I thought PR were short, but guess I was wrong. I had a tall guy stand up in court and used him as a reference.
Judge stopped her demonstration because it was too effective.
Be willing to take your time. My client is human but jury has been dehumanized. Talk to jury till they feel like people again. Clarence Darrow used to argue for days.
People have been watching TV too long, been on internet too long, camera angles change. 15 seconds is the average attention span for American public. Not used to thinking about taking our time with stuff. There are a lot of things to talk about with jury…presumption of innocence and understanding why it is so hard. Talk with them as you would with friends who are not lawyers. The things lawyers like are not same as jury.
Describe what it looked like and sounded like and smelled like. SO AL admits one can describe smells. Like Decomp????? That little tidbit may bite em in the arse.
#1 rule of evidence …If prosecution needs it, it’s coming in. For defense…if I need it I’ll use it.
Regarding photos that will be used by prosecution….. Talk about the bad photos and that they will make you sick. Explain to them that the prosecutors have no choice but to show you pics. Tell them that they are not going to like seeing them. Have them throw up during trial instead of at closing. Make photos seem worse than they are and do so in voir dire AND opening so you can turn them to your advantage or neutralize them. If they expect worse……then they will be disappointed with what pros shows in court.
Unanswerable last word. Tell the jury they can promise you they will never commit a crime. They can make that promise and keep it. But remind them “You can’t promise you’ll never be accused of it.”
Make the dragon. Know the dragon’s true name to take their power. No one talks about racism. My black or Hispanics client’s word against white words. Oh yes JB the Hispanic lawyer is a victim. Nevermind Caylee....JB has been discriminated against. /COLOR]
Discuss the dragon in the room ahead of time. Give the jury a salient way to deal with it or it will silently be killing you.
Give jury permission to talk about discrimination or racism etc…..
Don’ts
Don’t distance yourself from jury. Don’t let them think you are smarter than them. That must explain the act..
Don’t talk down, talk with. Imagine you are all at a big table in a diner comfortable..
Tell jury what to feel.
Do talk about feelings in case and tell them it’s ok to feel outrage.
Don’t tell them arguments are not evidence. Don’t challenge jurors. Don’t be afraid to ask for mercy.
If law and facts were against you but mercy was with you. (Example of a bad check case pic of woman 57 writing bad check at toys are us)
My one and only negotiation tool…”F*$* YOU LET”S PICK A JURY”
There was no defense, get jury to show mercy. In jury selection, She discussed juror she noticed…in sensible shoes, lives in racist neighborhood (you have to fill out questionnaire to live there) , husband worked for so and so. But when she stood up she noticed the woman had on purple slip. “I said this woman is a nut.” I kept her on jury. She hung the jury, took out needlepoint and said she wasn’t going to cave. She understood. So we can't discriminate against KC because she is pretty but we can call a woman in a purple slip a NUT??
Don’t challenge prosecutor. Just don't cooperate with them and remember to call them names????
What is purpose of story? Give them permission to vote your way. Lawsuit is about perspective. Find ways to create stories. We get narrow, and focused, and we don’t know how to change perspective. Perspective is the whole thing. Thelma and Louise analogy.
Our job is to create change of perspective by entering life of client. We usually do it in closing, or in opening or someone does it for us.
Is your theory “jury friendly”?? Notice she does not mention is your theory in any way shape or form anywhere close to the truth!!!!!!!!!
Talk about good things client had done. OH yes KC was designated driver, always made dinner and cleaned for friends. That will have to go pretty far.
Human emotional stories are important. Be willing to search for them. Just not search for your "missing" child.
When asked……”What do I do to get ready?”
I tell them I listen. That’s it.
