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Friday, January 27, 2006

Should/Do Closing Arguments Win Trials

The New York Times
January 23, 2006
In Summation, Power to Win Jury's Favor

As David J. Dean was about to deliver a closing argument in a wood-paneled courtroom in Lower Manhattan last October, he caught sight of his son, Christopher, a young lawyer, walking into the room. With the jury watching, Mr. Dean, the lead trial lawyer for those who suffered losses in the first bombing of the World Trade Center in 1993, practically floated into the audience to bestow a kiss on his son's lips. Then he spun around, beaming proudly, to deliver the first words of his summation.

That kiss was great theater, a touching moment of emotion in a trial that Mr. Dean sought to cast as an epic tale of terrorists and victims, heartless bureaucracy versus working people.

The bedrock of American jurisprudence is that jurors arrive at verdicts by carefully weighing the facts, and nothing but the facts. But many, though not all, of New York's most successful trial lawyers freely concede that a clever summation, even if not Oscar-quality, can turn a case around, and can sometimes be more important than the evidence in convincing a jury - especially if the facts are in dispute. "To be a little blunt about it, a lawyer is a salesman selling a product to the jury," said Stephen Gillers, a law professor at New York University. "You're selling a story, and you're saying: 'Buy my story. Don't buy her story.' "

It is a form of manipulation that happens beyond the conscious attention of most jurors, lawyers say, and not only in high-profile cases. Even in the humble criminal courts, where murderers, thieves and drug dealers pass by every day in an assembly line of pleas, a catchy summation can stand out.

Like salesmen closing deals, lawyers who are masters of the summation react quickly and know how to deliver an aphoristic turn of phrase or a memorable anecdote.

So could Hollywood, for once, be right? Could the most compelling aspect of jurisprudence be the courtroom drama, as delivered by the likes of Paul Newman, Tom Cruise, Spencer Tracy and their real-life counterparts?

Among recent New York cases there was, for instance, the moment toward the end of the money-laundering trial of the hip-hop entrepreneurs Irv and Christopher Gotti in Brooklyn when the prosecutor, a woman, disparaged the defense lawyers as "men of a certain age," prompting one of them, Gerald L. Shargel, to assure the jury, in his successful summation, "I may be a man of a certain age, but I'm not going to talk to you like you're in kindergarten."

During a rape trial in Manhattan, the defense lawyer suggested that his client would have had to be stupid to buy a gun under his own name if he had committed a crime. The prosecutor, Melissa Mourges, began her summation by quoting a detective, "an Irish guy, 30 years on the job," who had once told her, "Missy, we don't catch the smart ones."

She had used that line before, Ms. Mourges said later of her winning remark, with a twinkle in her eye.

Mr. Shargel admitted having his own "stockpile of lines." The kindergarten line, he hastened to add, was spontaneous, the outgrowth of his sense that the prosecutor was talking down to the jury and that her remark was too peculiar to let pass without comment.

Not even a great summation, Mr. Shargel said, can win what he calls a "no-hoper," a case in which the evidence is irrefutable.

But summations can make the difference when the facts are still in play at the end of the trial.

"I've seen people snatch victory from the jaws of defeat with a great summation, or defeat from the jaws of victory by giving a poorly constructed summation," said Benjamin Brafman, a New York criminal defense lawyer who has represented celebrities and business leaders.

"A trial, whether we want to accept it or not, certainly has some element of theater in its rawest fashion," he said. "I don't think that's a bad way to describe it. I've seen witnesses testify, and I've seen witnesses perform."

To hone those performances, law schools, law firms and district attorneys offer clinics in summation tactics. Books have been published that analyze closing arguments; one, "In the Interest of Justice," was written by Joel J. Seidemann, a prosecutor in Manhattan.

But even successful summations are not necessarily poetry, said Daniel Castleman, chief of investigations for the Manhattan district attorney, Robert M. Morgenthau. "There's a big difference between reading it from a cold page and watching it," Mr. Castleman said. "You can command a courtroom by your presentation, and it won't be reflected in the cold record. A lot of summations are not worthy of any oratory textbook, but sometimes it does amount to pretty good rhetoric."

Mr. Brafman says he starts composing his summation the moment the client walks in the door. Things he says he considers include "how he or she presents herself, what they look like, issues dealing with gender, race or age, their position in life."

"Sometimes a person is very successful and fabulously wealthy," Mr. Brafman said. "People think they have an advantage. Some people resent that."

Connecting with the jury can be everything.

Mr. Brafman said he remembered "being at the rail, looking up at the jury" and trying to think of a way to discredit the testimony of informants against his client, Peter Gatien, a nightclub owner, in a drug racketeering case. If you went away, Mr. Brafman asked the jurors, "Would you leave them the key to your apartment so they could water your plants?"

He could see some of the jurors react instantly, he recalls. Like Mr. Gatien, the jurors probably did lead the type of lives in which they went away and left their plants behind. The informants probably did not. Mr. Gatien was acquitted.

When Mr. Brafman was representing Sean Combs in a nightclub shooting case, he had to convey, he says now, what kind of person his client was. He had to convince the jury, he said, that "in this case, where perhaps the most successful African-American entrepreneur in the history of the world was on trial, in order to destroy that life, you had to be certain - you couldn't just guess." It worked.

Jurors can be tough critics. It didn't help Carlos Perez-Olivo, representing a Manhattan hotel waiter accused of killing his wife's lover, when he admitted that he had forgotten what else he wanted to say. "There is a lot of other things that honestly I thought of and I can't think of right now," Mr. Perez-Olivo told the jury.

The next morning, one juror, a retired sixth-grade teacher, passed a note to the judge pointing out that the day before summations had been Election Day. Why, she demanded, had the defense lawyer not done his homework on his day off? (Mr. Perez-Olivo said he had pegged the woman as pro-prosecution from the start, and regretted letting her on the jury.)

Unlike forgetfulness, irreverence can play well. In his summation, the prosecutor in the cuckolded waiter's trial suggested several alternatives to murder, including counseling, divorce and open marriage. Apparently, the jury agreed, and the waiter was convicted.

The nonverbal cues that accompany a summation - the kiss, the tie, the wedding ring - can be as influential as the speech itself.

"The lawyer's own credibility with the jury is critical," Mr. Gillers said. " 'Do I like this person? Would this person fool me? Is he leveling with me?' "

Still, Mr. Dean, who says he always greets his son with a kiss, is a skeptic on the value of summations. In personal injury litigation, he says, summations are important because "that's when the money goes in" and he asks the jury for a specific amount of damages. Otherwise, he subscribes to the theory that juries decide on first impression.

"Lawyers spend countless hours, as we should, on summations, thinking it makes a difference," he said. "Long before, I think, jurors have made up their minds."

How early in a trial?

"Would it be heresy if I told you often, after opening - that is, before the jury has received evidence?" he said.

Unlike a Hollywood scriptwriter, a lawyer who delivers closing arguments has to be able to think on his feet. Asked what he would choose as his favorite closing line if he were talking about it over, say, a couple of drinks, Mr. Shargel shot back, "Is that an invitation?"

* Copyright 2006The New York Times Company