Trial Skills Series: Summation

Trial Skills Series: Summation

March 17, 2021

4:00 p.m. – 6:00 p.m.

CT Bar Association

Webinar

CT Bar Institute, Inc.

CT: 2.0 CLE Credits (General) NY: 2.0 CLE Credits (Skills)

No representation or warranty is made as to the accuracy of these materials. Readers should check primary sources where appropriate and use the traditional legal research techniques to make sure that the information has not been affected or changed by recent developments.

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Table of Contents Lawyers’ Principles of Professionalism ..................................................................................................................3

Faculty Biographies ................................................................................................................................................6

Agenda ..................................................................................................................................................................11

Summation ............................................................................................................................................................12

10 Commandments of Summation ........................................................................................................................26

10 Commandments of Closing Statements ...........................................................................................................37

Fact Patterns ..........................................................................................................................................................63

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LAWYERS’ PRINCIPLES OF PROFESSIONALISM

As a lawyer, I have dedicated myself to making our system of justice work fairly and efficiently

for all. I am an officer of this Court and recognize the obligation I have to advance the rule of

law and preserve and foster the integrity of the legal system. To this end, I commit myself not

only to observe the Connecticut Rules of Professional Conduct, but also conduct myself in

accordance with the following Principles of Professionalism when dealing with my clients,

opposing parties, fellow counsel, self-represented parties, the Courts, and the general public.

Civility:

Civility and courtesy are the hallmarks of professionalism. As such,

I will be courteous, polite, respectful, and civil, both in oral and in written

communications;

I will refrain from using litigation or any other legal procedure to harass an opposing

party;

I will not impute improper motives to my adversary unless clearly justified by the facts

and essential to resolution of the issue;

I will treat the representation of a client as the client’s transaction or dispute and not as a

dispute with my adversary;

I will respond to all communications timely and respectfully and allow my adversary a

reasonable time to respond;

I will avoid making groundless objections in the discovery process and work

cooperatively to resolve those that are asserted with merit;

I will agree to reasonable requests for extensions of time and for waiver of procedural

formalities when the legitimate interests of my client will not be adversely affected;

I will try to consult with my adversary before scheduling depositions, meetings, or

hearings, and I will cooperate with her when schedule changes are requested;

When scheduled meetings, hearings, or depositions have to be canceled, I will notify my

adversary and, if appropriate, the Court (or other tribunal) as early as possible and enlist

their involvement in rescheduling; and

I will not serve motions and pleadings at such time or in such manner as will unfairly

limit the other party’s opportunity to respond.

Honesty:

Honesty and truthfulness are critical to the integrity of the legal profession – they are core values

that must be observed at all times and they go hand in hand with my fiduciary duty. As such,

I will not knowingly make untrue statements of fact or of law to my client, adversary or

the Court;

I will honor my word;

I will not maintain or assist in maintaining any cause of action or advancing any position

that is false or unlawful;

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I will withdraw voluntarily claims, defenses, or arguments when it becomes apparent that

they do not have merit or are superfluous;

I will not file frivolous motions or advance frivolous positions;

When engaged in a transaction, I will make sure all involved are aware of changes I make

to documents and not conceal changes.

Competency:

Having the necessary ability, knowledge, and skill to effectively advise and advocate for a

client’s interests is critical to the lawyer’s function in their community. As such,

I will keep myself current in the areas in which I practice, and, will associate with, or

refer my client to, counsel knowledgeable in another field of practice when necessary;

I will maintain proficiency in those technological advances that are necessary for me to

competently represent my clients.

I will seek mentoring and guidance throughout my career in order to ensure that I act with

diligence and competency.

Responsibility:

I recognize that my client’s interests and the administration of justice in general are best served

when I work responsibly, effectively, and cooperatively with those with whom I interact. As

such,

Before dates for hearings or trials are set, or if that is not feasible, immediately after such

dates have been set, I will attempt to verify the availability of key participants and

witnesses so that I can promptly notify the Court (or other tribunal) and my adversary of

any likely problem;

I will make every effort to agree with my adversary, as early as possible, on a voluntary

exchange of information and on a plan for discovery;

I will attempt to resolve, by agreement, my objections to matters contained in my

opponent's pleadings and discovery requests;

I will be punctual in attending Court hearings, conferences, meetings, and depositions;

I will refrain from excessive and abusive discovery, and I will comply with all reasonable

discovery requests;

In civil matters, I will stipulate to facts as to which there is no genuine dispute;

I will refrain from causing unreasonable delays;

Where consistent with my client's interests, I will communicate with my adversary in an

effort to avoid needless controversial litigation and to resolve litigation that has actually

commenced;

While I must consider my client’s decision concerning the objectives of the

representation, I nevertheless will counsel my client that a willingness to initiate or

engage in settlement discussions is consistent with zealous and effective representation.

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Mentoring:

I owe a duty to the legal profession to counsel less experienced lawyers on the practice of the law

and these Principles, and to seek mentoring myself. As such:

I will exemplify through my behavior and teach through my words the importance of

collegiality and ethical and civil behavior;

I will emphasize the importance of providing clients with a high standard of

representation through competency and the exercise of sound judgment;

I will stress the role of our profession as a public service, to building and fostering the

rule of law;

I will welcome requests for guidance and advice.

Honor:

I recognize the honor of the legal profession and will always act in a manner consistent with the

respect, courtesy, and weight that it deserves. As such,

I will be guided by what is best for my client and the interests of justice, not what

advances my own financial interests;

I will be a vigorous and zealous advocate on behalf of my client, but I recognize that, as

an officer of the Court, excessive zeal may be detrimental to the interests of a properly

functioning system of justice;

I will remember that, in addition to commitment to my client's cause, my responsibilities

as a lawyer include a devotion to the public good;

I will, as a member of a self-regulating profession, report violations of the Rules of

Professional Conduct as required by those rules;

I will protect the image of the legal profession in my daily activities and in the ways I

communicate with the public;

I will be mindful that the law is a learned profession and that among its desirable goals

are devotion to public service, improvement of administration of justice, and the

contribution of uncompensated time and civic influence on behalf of those persons who

cannot afford adequate legal assistance; and

I will support and advocate for fair and equal treatment under the law for all persons,

regardless of race, color, ancestry, sex, pregnancy, religion, national origin, ethnicity,

disability, status as a veteran, age, gender identity, gender expression or marital status,

sexual orientation, or creed and will always conduct myself in such a way as to promote

equality and justice for all.

Nothing in these Principles shall supersede, supplement, or in any way amend the Rules of

Professional Conduct, alter existing standards of conduct against which a lawyer’s conduct might

be judged, or become a basis for the imposition of any civil, criminal, or professional liability.

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Angela Robinson, Quinnipiac University School of Law Waring and Carmen Partridge Faculty Fellow

Judge Angela C. Robinson (Ret.) is a Visiting Professor and a Warren and Carmen Partridge Faculty Fellow. She teaches Evidence, and Critical Race Theory. Prior to joining the Qunnipiac faculty, Judge Robinson was a Connecticut Superior Court Judge for twenty years, and before that a plaintiff’s trial lawyer with the nationally renowned law firm of Koskoff, Koskoff and Bieder in Bridgeport, Connecticut. Upon her retirement from the bench, she joined the Connecticut-based law firm of Wiggin and Dana as a Litigation partner with a civil defense practice and as the firm’s inaugural Chief Diversity Officer. She has also taught as an adjunct faculty member at Gateway Community College, the University of New Haven, Quinnipiac Law School and Yale Law School. Robinson’s work focuses on civil litigation-related subjects, and social justice subjects implicated by racial equity issues, including critical race theory, race and the law and diversity, equity and inclusion within the legal profession.

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James W. Bergenn, Partner – Shipman & Goodwin LLP

Jim Bergenn's practice is comprised of complex criminal and civil litigation, including white collar crime and government investigations, personal injury and wrongful death cases, and other trials involving significant consequences. With more than 30 years of experience as a trial lawyer and instructor, he is called upon regularly to use his trial skills, and experience with investigations and experts, in many different kinds of contested cases.

Jim’s wide range of criminal cases includes representing targets of investigations, criminal defendants, grand jury and other witnesses, and crime victims. Because he handles personal injuries, he often helps victims after criminal cases are completed, obtain the correct compensation for their harm. He works in cases prosecuted by all the various federal, state and local authorities, such as the US Attorney’s Office, The Chief State’s Attorney’s Office, State and Federal Grand Juries, the FBI, the State Police, the SEC, the DEA, the ATF, the DOD, the IRS, the FDA, the FTC, the Office of Inspector General for various Federal Agencies, state regulators such as the Attorney General, the DEP, the DOH, the DMR, the DCF, and the Office of Consumer Protection, and local police.

As an experienced Personal Injury attorney, he represents people involved in car accidents, motorcycle accidents, pedestrians (including DUI cases), products and premises liability matters (including defective lithium ion batteries in laptops, I-Phones, and E-cigarettes that caused burn injuries), construction accidents, drownings, nursing home negligence, boating accidents, wrongful imprisonment environmental hazards and medical malpractice. He handles sexual assault cases for both adult and children victims. The injury cases he has prosecuted include death, Traumatic Brain Injuries (TBI’s), burns, RSD, paralysis, blindness and Legionnaires' disease. sexual abuse, and cases. He was involved in cases arising out of the 9/11 attacks.

He uses technology to help jurors understand in simple terms what might otherwise be complex, including video reconstruction, videotaped depositions, and clear use of illustrations, charts, maps and highlighted documentary evidence. Most of his cases use expert witnesses, including accident reconstruction experts, and economic and medical experts to establish damages. Jim Bergenn and Bill Ronalter often use videos to assist with case resolutions. Click here to learn more.

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Cindy Cieslak is chair of the Young Lawyers Section of the Connecticut Bar Association and partner at Rose Kallor, LLP in Hartford, Connecticut. Ms. Cieslak’s practice focuses on all aspects of labor and employment litigation in state and federal courts, as well as administrative agencies, including the defense of public sector and private employers against claims of discrimination, wage and hour violations, breach of contract, free speech retaliation, whistleblower retaliation, and other civil rights violations. Ms. Cieslak also provides advice to employers regarding compliance with labor and employment laws, prepares employee handbooks and best practices manuals for employers, and conducts independent workplace investigations. Ms. Cieslak has been recognized by Best Lawyers: Ones to Watch, and she has been selected to the Connecticut Rising Stars List by Super Lawyers Magazine since 2015. Additionally, in 2019, Ms. Cieslak was also awarded a Professional Excellence Award as New Leader in the Law by the Connecticut Law Tribune. Ms. Cieslak holds a Bachelor of Arts, summa cum laude, in Political Science from the Pennsylvania State University, with minors in Spanish and Women’s Studies. Ms. Cieslak received her Juris Doctor from the University of Connecticut School of Law, with a certificate in Tax Law. Ms. Cieslak is admitted to practice law in Connecticut and Massachusetts, and resides in Connecticut with her husband, son, and two cats.

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CHRISTOPHER P. KRIESEN BIO

Attorney Christopher P. Kriesen is the founder and principal of the Kalon Law Firm, LLC. He formed the firm in 2017 to fulfill his vision of a better way to practice law, serve clients, and promote social good through entrepreneurship. He leads the firm and serves as the ethics officer.

He has attended The Yale Writers Workshop, is an adherent of the Story Model of advocacy, and is writing a book on the theory, “Legal Storytelling.“ He has been invited several times to be a storyteller at Speak Up events, including a performance to an audience of 500 people at Infinity Hall.

He has taught advocacy to students at the University of Connecticut School of Law. He is an active presenter at legal seminars for other lawyers and a mentor to law students and young lawyers.

Attorney Kriesen has tried cases in State and Federal Court, has argued appeals before Connecticut’s Appellate and Supreme Courts, and has helped prepare amicus briefs on cases raising issues of first impression before the Supreme Court.

He is a trained mediator (Harvard Law School, Advanced Mediation Workshop, Program on Negotiation and the Quinnipiac School of Law Center on Dispute Resolution). He serves as an Attorney Trial Referee, Fact Finder, and Arbitrator in the Hartford Superior Court And a Special Master at the District Court, Connecticut..

Attorney Kriesen completed the Harvard Business School | HBX course “Disruptive Strategy” with Clayton Christensen, using the HBS case method to learn how to apply disruption theory to find and execute business and social opportunities. He expanded upon his studies by completing a one-year, eight class program on innovation at the Stanford Graduate School of Business. Kalon’s model is based upon what he learned in these programs.

He completed a six class program in Strategic Decision Making and Risk Management offered by Stanford University’s Center for Professional Development.

He established the Kalon Fellowship, the Kalon Human Rights Clinic, Salons, Workshops, the Cicero Advocacy Project, and The Kalon ADR Center (which, as of September 1, 2018, donates 10% of its revenue to a fund for graduates of the Hartford Youth Scholars to help with their continuing education) making Kalon unique among

The Kalon Law Firm, LLC │ 140 Huyshope Avenue, Suite 405 │ Hartford, Connecticut 06106 │ 860.249-0979

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http://www.westhartfordnews.com/news/new-law-firm-launched-by-west-hartford-resident/article_b6da7277-b2f6-5347-8c8f-3db8e44be1ba.html

peer firms in promoting social good.

Attorney Kriesen is active in his community. He volunteers at Literacy Volunteers of Greater Hartford (where he has taught basic literacy and English as a second language) and Hartford Youth Scholars (where he has advised on interviewing and career advancement).

He lives in West Hartford with his wife and his daughter attends Brandeis University.

The Kalon Law Firm, LLC │ 140 Huyshope Avenue, Suite 405 │ Hartford, Connecticut 06106 │ 860.249-0979

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THE KALON LAW FIRM, LLC

140 Huyshope Ave. Hartford, CT 06106

TRIAL SEMINAR: SUMMATION

By Christopher P. Kriesen [email protected]

AGENDA

Summation (10 min)

The Psychology of Story (10 min)

What is Story (10 min)

How to Use Story in Summation (20 min)

Breakout Rooms Story Workshop (30 min)

Main Group Discussion (30 min)

Questions (10 min)

THE KALON LAW FIRM, LLC 140 Huyshope Avenue, Suite 405 │ Hartford, Connecticut 06106 │ 860.249-0979

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SUMMATION

Prepared for the CBA, Trial Seminar, 3-17-21


PART ONE

James Bergenn’s Ten Commandments

Frame the Case Tell Jurors their Role

Tell a Story Use the Present Tense

Show Don’t Tell Anchor Points

Delivery Understand

Absorb all Opponent’s Points Highlight your Best Facts

Christopher P. Kriesen’s Ten Suggestions

Be Real Remember It’s Not About You

Don’t Pander to the Judge or Jury Use Humor

Show Respect to Everyone Make the Case About A Value

Use Pictures Make a Verdict in Your Favor Seem Inevitable

Stick to the Evidence Tell a Story


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PART TWO

STORYTELLING

THE PSYCHOLOGY OF STORY

Once, at a trial practice seminar, I asked the group of lawyers, “What is the meaning of the

following word sequence: Dog, Boy, Cat, Chase?”

The first to answer said, “A boy was walking his dog and the dog chased a cat.”

The second said, “ A boy watched a dog chase his cat.”

The third: “Nothing. It’s just a sequence of words, with no meaning at all.”

Correct. The sequence means nothing. But, when a person hears the sequence, she

creates a pattern, which becomes the narrative of a story, and from the story she creates a

meaning. In this very human habit of storytelling, we have an essential method of winning a trial,

far more important than any trial tactic, strategy, or theory of the case.

The problem is most lawyers don’t understand how to tell a legal story. I will show you how.


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DISCOVER THE STORY MODEL

First, you need to understand why stories matter.

When presented with a series of random facts, people immediately look for, find, and create

patterns. From these patterns we create narratives, and from these narratives, stories. Through

these stories, we understand the world, create meaning, and decide how to live our lives.

You of course are familiar with the question, “What is the moral of the story?” Most stories

hold a moral for the audience. The moral is a universal truth, one that we already accept as true,

and the story is a striking example of that universal truth applied to a specific fact pattern.

Every dispute is built upon a series of facts. The decision-maker listens to those facts and

naturally begins to form a pattern. From that pattern, she builds a narrative, a story, and a

meaning for the dispute. She will rely upon that meaning to decide the case.

Every story about a dispute has the same moral - a universal truth that the decision-maker

already accepts as true. It is, “Justice shall be done.” The dispute is simply a specific fact pattern

to which that universal truth is applied.


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An advocate who understands this story model realizes she must present the dispute to the

decision-maker as a story. The story she tells must hold the universal truth that “justice shall be

done.” And the story must be told in a way that compels the decision-maker to decide that justice

is done in favor of her client, not her opponent’s client. If the advocate does not tell a story, the

jury will find one to tell themselves, and the advocate may not like the way it ends.

DISCOVER THE UNIVERSAL STORY STRUCTURE

A popular definition of a story is: a beginning, a middle, and an end.

Aristotle came up with that and published it in Poetics. It’s a nearly useless definition,

repeated for centuries, and rarely explained. Most things have a beginning, middle, and end. How

is a story different?

Here is my definition: A story is about a hero with a desire, an obstacle to fulfilling that

desire, and an outcome in her pursuit of that desire (success or failure).

The great mythologist, Joseph Campbell, in The Hero with a Thousand Faces , calls this

structure the “Hero’s Journey,” a mono-myth, arguably the structure of every popular story ever


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told.

For the needs of the story model, I have simplified the structure. The essential elements of

the Hero’s Journey are: 1. The Hero’s Ordinary World; 2. The Inciting Incident; 3. The Hero's

Quest, with her allies, mentor, and antagonist; 4. Crisis; 5. Success.

The journey of the hero begins in the ordinary world, where everything seems fine, until

there is an inciting incident, which damages her world. The hero sets off on a quest to repair the

damage. She has allies and a mentor to help her on her quest and an antagonist to block her. She

reaches a crisis stage, where it is uncertain whether she will be able to repair the damage, but she

succeeds, and returns home for a happy ending.

This structure inherently compels the audience to identify with the hero, cheer for her

success, and root against the antagonist. The structure also has an inherent, universal moral:

justice shall be done.

HOW YOU CAN USE THE STORY MODEL

How does an advocate use this structure to persuade? She lines the facts of her case into a

pattern that forms the narrative of the Hero’s Journey. The advocate is the teller of this story, not


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the hero. I have seen vanity overcome some lawyers who turn the closing argument into a story

about themselves, wearing outfits to draw attention to themselves, and reveling in the attention of

the jury. Remember, it’s not about you: it’s about your client. You are just the storyteller.

To demonstrate how to use the Story Model, I will use the example of a personal injury claim

arising from a motor vehicle accident, first from the plaintiff’s perspective.

1. The plaintiff (the hero) is safe in her ordinary world; 2. The plaintiff is in a car accident with

the defendant (the antagonist) and is injured; 3. The plaintiff begins a quest to hold the defendant

accountable and return to health, with family, friends, and doctors (as allies and mentors) to help

her recover. Opposing counsel (also an antagonist) is trying to block her.

In the context of a trial, the decision-maker (judge or jury) enters the story at the Crisis step.

Will the defendant be held accountable and will the plaintiff repair her damage? It is out of her

hands. The decision-maker decides. If the decision-maker decides in her favor, holds the

defendant accountable, and makes her whole, she succeeds. Justice is done.

What of the advocate for the defendant?

A trial is a presentation by advocates to the decision-maker of competing narratives drawn


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from the same set of evidence. The decision-maker will adopt the narrative supported by the

evidence and will form a story that is consistent with the universal truth of “justice shall be done.”

The advocate for the defendant must first dismantle the evidence relied upon by the plaintiff

to form her narrative. Without facts to support her narrative, her story crumbles.

But that is not enough. The defendant must also tell a more compelling story. As the

advocate for the plaintiff is telling the story of the Hero’s Journey, the advocate for the defendant is

telling what is, from the plaintiff’s perspective, the antagonist’s story. But from the defendant’s

perspective, he is telling the story of a protagonist, with his own Hero’s Journey. Who is the real

hero of a story depends on perspective: one man’s hero is another man’s villain.

The defendant’s story is as follows:

1. The defendant (the hero) is safe in his ordinary world; 2. The defendant is sued by the

plaintiff (the antagonist); 3. The defendant begins a quest to defend himself, through cross

examination of the plaintiff’s allies and experts, and by the testimony of his own experts (allies and

mentors). Opposing counsel (also an antagonist) is trying to block him.

The decision-maker enters the story at the Crisis step. Will the defendant be protected? It is


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out of his hands. The decision-maker decides. If the decision-maker decides in his favor, he

succeeds. Justice is done.

Many lawyers try their cases approximating the story model, unaware they are following the

steps of a fundamental narrative, and without the master’s touch because they are unaware of the

elements of the structure. Once you understand the structure, you will develop a master’s touch

for presenting your case, no matter what the issues. The story model applies equally to any case

seeking damages, whether it be a personal injury claim, a professional liability claim, or even

breach of contract case.

STORY X-FACTORS

Advanced storytelling uses x-factors - theme, tropes, and tactics - to make a story more

compelling. In the context of a trial, a more compelling story is a more persuasive story.

Theme

A theme in a story is a universal message that a story advocates for. In The Wizard of Oz ,

the theme is, “There’s no place like home,” which Dorothy states explicitly. Every popular story has

a theme. In Finding Nemo , it’s “trust”; in The Godfather , it’s “family comes first”; in Star Wars , it’s


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“use the force”.

In a trial, the story you present to the jury must have a theme which compels the jury to

reach a decision in favor of your client. Furthermore, unlike a story, where the theme is often

debateable, the theme of your trial story must be absolutely clear so the jury understands exactly

what result you seek.

The judge will instruct the jury on the law they must follow to reach their decision. Your

theme must therefore be built upon the rule of law that governs your case.

For example, in a simple negligence case, with the elements of duty, breach, causation,

and damages, you want to build your theme upon the element where your case is strongest. For a

plaintiff with clear liability, the case theme is duty. For the defendant with a causation defense, the

theme is responsibility.

Tropes

In storytelling, a trope is a kind of cliche, something we all immediately recognize, usually in

the form of a character, or relationship, situation. For example, the knight in shining armor saving

a fair maiden from a dragon holds tropes in the characters, relationships, and situation. Tropes


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immediately convey information which people accept as true. The knight in shining armor is good,

the maiden is a victim who deserves to be saved, the dragon is bad and deserves to be slayed.

People - and jurors - naturally use tropes to make sense of the world. They will seek to

assign your client, your opponent, and the situation tropes to help them understand what they see

and how to decide your case. Better to select those tropes for them, leading them to favor your

client and not favor your opponent.

Select the favorable trope that fits your client: the innocent, the underdog, the falsely

accused. Select the unfavorable trope that fits your opposing party: the grifter, the bully, the

charlatan. Find a trope for the situation that favors the outcome you seek, such as ‘David versus

Goliath.”

Story Tactics

Framing the issue is a way of controlling how the jury sees the situation and controls how

they decided the case. Framing works with theme. For a plaintiff with clear liability, the frame

should be, “This is a case about the duty to drive with due care - the defendant failed to do so and

must be held accountable.” For the defendant with a causation defense, the frame should be,


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“This is a case about not being made to pay for a problem you didn’t cause.”

Making Your Client Likeable

Once you have a trope for your client, you should enhance that trope with elements to

make her even more likeable. If you can, weave into the narrative instances of your client doing

good deeds, being humble, and being funny, all qualities that will lead the jury to like her more. If

you represent the Plaintiff, remember to emphasize her undeserved misfortune.

Making Your Opposing party Unlikeable

Similarly, once you have a trope for your opposing party, you should enhance that trope

with elements to make her even more unlikable. If you can, weave into the narrative instances of

her doing bad deeds, being arrogant, and being borish, all qualities that will lead the jury to like

her even less. If you represent the Defendant, look for ways to show the Plaintiff seeks

underserved good fortune in her claim.

A Clear Choice

You don't want the jury thinking, “This one is a close call.” You want them walking into the


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deliberation room thinking this is an easy call in your favor. Your entire presentation should be

building toward a clear choice in your favor.

An Outcome in Your Favor is Good; An Outcome in Her Favor is Bad

Although the jury is not deciding a moral question, while they decide what outcome is

required by law based upon the facts they find (a process that is new to them), informing their

decision process will be their sense of what is right, what is wrong, and what is a fair outcome (a

process that has been a part of their whole lives). You should subtly address their sense of justice

throughout the case.


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Christopher P. Kriesen

Informal Bio:

In 2017, I opened Kalon, a law firm devoted to social good, built on a lean, efficient business

model. Although I litigate at the trial and appellate levels, most of my practice is serving as a

mediator or arbitrator, helping people resolve their conflicts, helping them create value by

exploring interests and expanding options. Before Kalon, I was a servant to traditional business

models. Now I’m seeking a more fulfilling life, in line with my values, with giving back and paying it


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forward as guiding principles.

“I did then what I knew how to do. Now that I know better, I do better.” Maya Angelou.

Kalonlawfirm.com


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© Shipman & Goodwin LLP 2016. All rights reserved.www.shipmangoodwin.com

Hartford Stamford Greenwich New Haven New York, NY Washington, DCwww.shipmangoodwin.com

© Shipman & Goodwin LLP 2016. All rights reserved.

10 Commandments of Summation

Jim Bergenn

Shipman & Goodwin LLP

[email protected]

860 251‐5639

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1. Frame the Case

Examples of Case Frames: eg., Wrongful accusation; Know Your Limits; Do Your Job; Betrayal; Actions Speak Louder Than Words; Profits Over Safety; Cover‐up; Turning a Blind Eye; Abuse of Power; Personal responsibility; Value of a handshake; Better Safe Than Sorry; Inevitability; First Rule is Safety First. [These are taken from Attorney Mark S. Mandell from Providence]

Best Case Frames are those that all can connect to, and fit the strongest facts.

The good case frame, if grasped and internalized, motivates favorable perspective.

State the case frame at very beginning, at very end, and twice in middle.

At end of summation, for example, remind them of the case frame. Eg., for “Safety First”. Remind jury of the safety rules in the case, and how they were violated.


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2. Tell Jurors Their Role: It’s Their Case;

Respect the jury: their case, and not your case.

Explain: when they deliberate, each will be asked by others to talk about the case and explain their position. (Give jurors reason to listen, get help arming themselves‐ especially “your” jurors).

Maintain your independent credibility, as jurors’ trusted Sherpa or guide; not client’s zealous [discountable] advocate.

Help jurors remember their own experience of the trial evidence, not what you as advocate tried to do.


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3. Tell a Story [the Narrative]

Most of the summation is a simple review of the trial evidence, telling a chronological story.

Pick the starting point that most helps your client’s perspective.

Pick the right “End” of the story, that drives your client’s perspective.

Your narrative should come across to jurors as more appropriate and relevant than your opponent’s narrative to the key legal issues.


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4. Use the present tense

A story in the present tense is always more alive.

Breaking News: more captivating than “Advanced Placement history”

Keep jury with the story, as you walk through what happened.

Jurors relive the events, allowing them to see and feel how their own life’s personal narrative fits your client’s view of the events.


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5. Show, don’t tell Use visuals for everything possible

Always more visuals available than you first think.

Direct all jurors attention, at all times, at the same visuals, apace with your chronological narrative.

Google maps can give slides for all places any relevant events take place. (Events always takes place somewhere)

Visual Timelines demonstrate the story. [Use color to depict conduct. Eg., red for liability conduct, blue or green for innocent conduct.]

Medical illustrations are worth 1000 words: (save 1000 words.)

Practice, technology. Be sure technology is easy, seamless.


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6. Anchor Points Hang the story on core undisputed facts. a/k/a Things I Just Can’t Get Over.

The story’s framework uses the strong undisputed facts, like stanchions of a suspension bridge

Point out key missing anchor points for opponent’s case: why jurors know other “story” cannot be true.

When opponent argues a point you know jurors don’t believe – tell jury to reflect on why opponent asks them to believe something they know is not true. Opponent’s overreach reveals opponent’s own judgment/knowledge: opponent needs a lie to win


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7. Delivery: easy pace Jurors’ need to internalize, to process and to own their case, so …

Deliver your narrative at a slow enough pace, and with pauses, to honor jurors doing their job.

Shorter summation, allows this slower pace.

Summation guided by Cicero’s excuse for a long letter: “If I had more time, I would have made it shorter”.

Less is more, let jurors think about core good facts. A good story excludes all extraneous facts, [despite their irresistible appeal].


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8. Understated

Understated form allows facts to convey what givesthe story its passion.

Display of facts earns the story its credibility, thereby increases attorney’s credibility, as byproduct.

Spend your credibility conservatively.

Speak with conviction and passion rarely ‐‐ only on the key “toss up” or 50‐50 points.


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9. Absorb all opponent’s points Incorporate forthrightly all important opposition factswith context of your story. [a/k/a/ Things I Just Can’t Get Over facts that hurt your case].

Never paper over bad facts.

Jurors you’ve “earned” won’t have courage to persuade jurors resisting your case, if attorney lacks courage to deal with bad facts.

Keep opponent’s points in the middle of the story, not the beginning or the end. [Don’t cede primacy or recency to opposition]


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10.Highlight best facts on each key disputed issue After delivering your story at easy pace, in present tense, with more show than tell …

Equip your jurors with key strong facts for deliberation room arguments.

Select/review best facts for each seriously contested issue, to help your jurors rebut opponent's jurors.

You’ve heard the defense say … ‐ if someone brings that up in deliberations ‐ remind them that ...

Anticipate all weaknesses; firm up client’s version.

Review key jury instructions. Blown‐up. Explain simply: how instruction apply to facts. Structure so the jurors do it for you again in deliberations.


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Hartford Stamford Greenwich New Haven New York, NY Washington, DCwww.shipmangoodwin.com

© Shipman & Goodwin LLP 2018. All rights reserved.

The Four Essential Trial Skills Part 4: The Ten Commandments of Closing Statements

Jim BergennP: 860‐251‐5639E: [email protected]

Bill Ronalter P: 860‐251‐5126E: [email protected]

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11

“If it doesn’t fit, you must acquit.”

Frame the Case

Johnny Cochran

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Examples of Case Frames: e.g., rush to judgment;

Do Your Job;

Betrayal;

Profits Over Safety;

Personal responsibility;

Value of a handshake;

Keep your promises;

First Rule is Safety First

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11 Frame the Case

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Best Case Frames are those that all can connect to and fit the strongest facts

The good case frame, if grasped and internalized, motivates favorable perspective

State the case frame at very beginning, at very end, and about twice in middle

At end of summation, for example, remind them of the case frame

e.g., for “Safety First”. Remind jury of the safety rules in the case, and how they were violated

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11 Frame the Case

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5

22 Tell Jurors Their Role: It’s Their Case

“Twelve Angry Men”

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Explain that when they deliberate, each one of them will be asked to talk about the case and to explain their position to the others. (Gives jurors reason to listen and to receive help in arming themselves‐ especially the jurors on your side)

Respect the jury and that this is their case, and not your case

Maintain your independent credibility, as the jurors’ trusted Sherpa or guide, and not your client’s zealous [and therefore discountable] advocate

Help jurors remember their own experience of the evidence at the trial, not what you as an advocate were trying to do

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22 Tell Jurors Their Role: It’s Their Case

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7

33 Tell a Story: The Narrative

“You don’t remember me. We spoke on the phone. I told you I would find you.” Liam Neeson, “Taken”

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Most of the summation is a simple review of the trial evidence, telling a chronological story

Pick the starting point that most helps your client’s perspective

Pick the right “End” of the story, that drives your client’s perspective

Your narrative should come across to jurors as more appropriate and relevant to the key legal issues than your opponent’s narrative

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33 Tell a Story: The Narrative

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9

44 Use The Present Tense

“So, these three guys go to confront Alexander Hamilton on these charges. One of the guys is future president, James Munroe.”

Comedy Central’s “Drunk History”

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A story in the present tense is always more alive

Breaking News is more captivating than AP history

Keep jury with the story, as you walk through what happened

Jurors relive the events, allowing them to see and feel how their own personal narrative fits your client’s view of the events

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44 Use The Present Tense

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Use visuals for everything possible

Always more visuals are available than you first think

Be sure to direct all jurors attention, at all times, at the same visuals, apace with your chronological narrative

Google maps can give you slides for all places where any relevant events take place ‐ Events always takes place somewhere

Visual Timelines demonstrate the story. [Using color to differentiate conduct. Eg., red for liability conduct, blue or green for innocent conduct]

Medical illustrations are worth 1000 words; (also, then save the 1000 words)

Practice, practice, practice the technology. Make sure the technology is easy, seamless

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55 Show, Don’t Tell

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15

66 Anchor Points

“This has to be the biggest coincidence I have ever heard of, I mean,

are you psychic? I mean, you predicted your wife would be missing?"Amber Frey to Scott Peterson

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Hang the story on core undisputed facts. a/k/a Things I Just Can’t Get Over

The story’s framework uses the strong undisputed facts, like the stanchions of a suspension bridge

Point out key missing anchor points for opponent’s case: why jurors know that other “story” can not be true

When opponent argues a point that you know jurors don’t believe – tell jury to reflect on why opponent would ask them to believe something they know is not true. Opponent’s overreach reveals opponent’s own judgment/knowledge that opponent needs a lie to win

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66 Anchor Points

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77 Delivery: Easy Pace

Atticus Finch, “To Kill a Mockingbird”

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Jurors’ need to internalize, to process and to own their case, so …

Deliver your narrative at a slow enough pace, and with pauses, to honor jurors doing their job

Shorter summation, allows this slower pace

Summation is guided by Cicero who excused a long letter: “If I had more time, I would have made it shorter”

Less is more, let jurors think about the core good facts

A good story excludes all extraneous facts, [despite their occasionally irresistible appeal]

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77 Delivery: Easy Pace

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88 Understated

“In all this legal maneuvering, something has

gotten lost. It’s the truth.” “A Time to Kill”

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The Ten Commandments of Closing Statements

Understated form allows the facts to convey what gives the story its passion

Display of the facts earns the story its credibility, thereby increasing attorney’s credibility as byproduct

Spend your credibility conservatively

Speak with conviction and passionately rarely ‐‐only on the key “toss up” or 50‐50 points

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21

99 Absorb All Opponent’s Points

“Obviously, I would never have knowingly put a convicted felon on the stand…. But what if I told you the woman he was accused of raping was 17 and he was 23, and that she later became his wife, bore his children, and that she is still married to him to this day?”

“A Time to Kill”

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The Ten Commandments of Closing Statements

Incorporate forthrightly all important opposition factswith context of your story. [a/k/a/ the Things I Just Can’t Get Over facts that hurt your case]

Don’t paper over bad facts

Jurors you’ve “earned” won’t have the courage to persuade the jurors resisting your case, if attorney lacks the courage to deal with bad facts

Keep opponent’s points in the middle of the story, not at beginning or the end. [Don’t cede primacy or recency to opposition]

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23

10 Highlight Your Best Facts on Each Key Disputed Issue

From the trial of William Kennedy Smith

If Smith was a "ferocious" rapist, as the accuser claimed, why did Mercer go willingly to a darkened mansion to reclaim her friend's high‐heeled shoes? And, if Mercer had angrily confronted Smith over his purported crime, as she claimed, is it true that she also then left the estate by saying, "I'm sorry we had to meet in these circumstances"?Why did Mercer first tell police that the accuser had said she had been "raped twice," but later changed the story to allege a single crime?

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After delivering your story at an easy pace, in the present tense, with more show than tell…

Finish by equipping your jurors with key strong facts for the arguments in the deliberation room.

Select and review the best facts for each seriously contested issue, to help your jurors rebut your opponent’s jurors.

You’ve heard the defense say—so if someone brings that up in deliberations—remind them that…

Anticipate all weaknesses and firm up your client’s version.

Review key jury instructions. Blown‐up. Explain them simply, and how facts apply to the instruction. Structured so the jurors can do it for you again in deliberations.

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“Dumb and Dumber”

Him: “You mean, like one in a hundred?”Her: “I’d say more like one in a million.”Him: “So, you’re telling me there’s a chance….”

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Visit http://www.shipmangoodwin.com/cle‐events for a complete list of CLE webinars and seminars.

Subscribe for updates when new events are added www.shipmangoodwin.com/subscribecle.aspx.

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TRIAL SEMINAR: FACT PATTERNS


THE MOTOR VEHICLE ACCIDENT CASE

Patty is driving her car home from church when she stops suddenly because a turtle is in the

middle of the road. Dan, driving behind her, and coming back from a visit with his probation officer

for driving with a suspended license (which he lost for driving while intoxicated, but he has been

sober for a year and is volunteering for an international charity to save sea turtles), hits his breaks,

skids, and comes to a stop when he collides with the rear of Patty’s car. He gets out of his car,

walks over to Patty, and swears at her. Both call the police.

The police officer takes no action because the accident was on a private driveway. Patty says

she’s fine.

Patty drives away. Dan follows her all the way to her home. He lives on the same street, three

blocks down.

Patty’s back starts to hurt that night. Going down the stairs, she has trouble walking because of

her back pain, and falls down ten steps, bruising her hips and legs. She goes to the hospital and


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complains of back pain. She sees an attorney who refers her to a chiropractor (with whom she

treated 200 times) and who refers her to an orthopedic surgeon (who says she might need

surgery). The chiropractor says she needs to be treated every year for the rest of her life, for two

weeks each year, at a cost of $25,000.00. She has not been treated in a year.

Patty (Plaintiff) is now suing Dan (Defendant), alleging he was negligent and reckless, asserting

she suffers back pain, must be treated for the rest of her life, and will not be able to travel when

she retires. Patty’s husband will say she is in pain all the time. Patty’s neighbor, with whom she

has been feuding for years over his trapping of rabbits in his garden, will say she has had back

pain for the last ten years.

During discovery, the Defense learns Patty has been treating with an acupuncturist for the last ten

years, once a month. for back pain. The Defense retains a chiropractor who will testify as an

expert to say Patty suffered a temporary exacerbation of a pre-existing condition and needed only

two months of treatment.

Be the lawyer for the Plaintiff or the Defendant. Identify each of the following from this fact pattern.

1. Protagonist (who, trope, good qualities) 2. Antagonist (who, trope, bad qualities)

3. Ordinary World 4. Inciting Incident

5. Extraordinary World


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6. Mentor 7. Allies

8. Moral (protagonist embodies, antagonist embodies opposite) 9. Theme (Rule)

10.Desired Outcome

Tell the persuasive story based on the legal story model.


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THE DIVORCE CASE

After Dan was in a car accident while his license was suspended, and while he was facing related

criminal charges and attended AA meetings, he began an affair with a woman he became close to

at the meetings. Dan’s wife of thirteen years, Pearl, learned of the affair when she ran into Dan

and his mistress having brunch together when she thought he was on a morning run.

Pearl is a sales rep for an international toy company. She travels almost weekly for her job,

sometimes overseas, and when she travels, is away for up to a week. She is always home on

weekends and sets her schedule around the important events of the two children (Mary, 8 years

old, and Joey, 12 years old), she parents with Dan. Dan was an adjunct writing professor, but has

not worked in three years and has become a stay-at-home-father and is working on a novel

(during which time Pearl’s career had great success, tripling her pay to $400,000 a year). Dan’s

parents were wealthy, he is an only child, and when both parents died in a land rover crash ten

years into his marriage while on safari, he inherited $4 million, which he used to pay off the

mortgage, open college funds for the children, and live in the Latin Quarter of Paris for a year with

the family (though Pearl spent most of that year at their home in the US and traveled for work),

leaving $2.5 million.

Pearl (plaintiff) is suing Dan (defendant) for divorce, seeking full custody of both children, child


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support, half of the $2.5 million, and full title to the home.



3. Ordinary World 4. Inciting Incident

5. Extraordinary World 6. Mentor 7. Allies


10.Desired Outcome



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THE BREACH OF CONTRACT CASE

Duke bought a used car from his neighbor, Dan, for $2,500.00, “as is.” Dan let Duke test drive the

car and gave him the option to have a mechanic inspect the car, which Duke decided not to do,

since he has worked on cars since he was a boy (he is now twenty-two) and on inspection the car

looked fine to him. Plus, when he asked Dan if the car had any issues, Dan said it did not.

Two months after Duke bought the car, he discovered it had been in a car accident with his

mother’s car, when his mother saw the car for the first time, parked in their driveway, and went into

a rage, thinking Dan was at the house. Looking under the car, Duke discovered damage to the

frame. He took the car to a mechanic, who said the car was not safe to drive, since the damage –

a crack – was growing and in the next six months would likely result in a structural failure.

Duke (plaintiff) has sued Dan (defendant) for a breach of contract, asserting the “as is” sale was

based on fraud, since Dan knew the car was in an accident, knew it sustained damage, and was

dishonest when he said there were no issues with the car.



3. Ordinary World


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4. Inciting Incident 5. Extraordinary World

6. Mentor 7. Allies


10.Desired Outcome



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THE COVERAGE CASE

Patty is a named insured on an insurance policy with an insurance company which provides

coverage for her home and has a line of coverage for general negligence for insureds, which

includes named insureds and resident relatives. The policy provides coverage (a defense and

indemnity) for compensatory damages for which an insured is legally liable caused by an

occurrence. The policy excludes coverage where damages were caused by an insured’s

intentional act. Patty has been an insured for twenty years and has never missed a premium.

Duke, her by blood son lives away at college, but keeps a bedroom at her home, and sometimes

stays there. while away at college at a tailgate, where he had been drinking, he began taunting

fans from the opposing team. Three of those opposing fans, who were each much bigger,

confronted him. Before they could assault him, he swung at one with a beer bottle, which broke

when it hit that fan’s head, causing a concussion and laceration.

That fan has now sued Patty’s son, asserting he was negligent and caused him physical injuries.

Duke (plaintiff) seeks coverage under the policy for the suit. The insurance company (defendant)

is denying coverage.


1. Protagonist (who, trope, good qualities)


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2. Antagonist (who, trope, bad qualities) 3. Ordinary World 4. Inciting Incident

5. Extraordinary World 6. Mentor 7. Allies


10.Desired Outcome



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Documents

Trial Skills Series: Summation