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Trials consist of the opening statement, the evidence, and the closing argument. In the closing argument the lawyer gives the performance that wins the hearts and minds of the jury. Occasionally this happens. But not often. It is the evidence that determines the outcome. The lawyer's speech, as the presiding judge tells the jury, is not evidence.

The surgical removal of the closing argument from the trial itself and then offering it up as literature is the serving up of a cut flower. This problem confronts those who wish to put together a book such as Ladies and Gentleman of the Jury, Greatest Closing Arguments in Modern Law (Touchstone Books 2000). The editors in question, Michael S. Lief, H. Mitchell Caldwell and Ben Bycel have made an interesting selection despite the handicaps.

The book opens with Justice Robert H. Jackson's speech for the prosecution at the Nuremberg trial. Guilt was a foregone conclusion. The case was so strong, I would have hoped the editors had included excerpts from the arguments of defense counsel. It was they, whoever they were, who had the difficult assignment. Justice Jackson's purpose in reviewing the evidence was to give voice to the war's victims.

Clarence Darrow And The Romantic Closing

is next. Darrow was retained in 1911 by the McNamara brothers, who were charged with murder. The McNamara brothers were controversial members of the labor union movement. The Los Angeles Times was an enemy of the labor unions. One of the brothers ignited dynamite under the Los Angeles Times Building. People were killed. The brothers entered guilty pleas shortly before their trial for murder began.

Subsequently, Darrow was charged with attempting to bribe jurors. The charge was based, in part, upon the testimony of his lead investigator, Bert Franklin. The case went to trial. The prosecution case against Darrow was impressive. Nevertheless, Darrow's impassioned closing argument, in which he presented himself as the victim of a corrupt system, not only moved the judge and jurors to tears, it helped produce his acquittal.

Darrow's argument demonstrates the conflicting elements present in each of the closing arguments in the book, the conflict between the romantic and the classic. I borrow from Isaiah Berlin's definition of romantic: "It is . . . antiquity, ancient roots and the old order with its unanalysable qualities, its profound but inexpressible loyalties, the impalpable, the imponderable . . . it is the pursuit of . . . revolutionary change, concern with the fleeting present, desire to live in the moment, rejection of knowledge, past and future . . . ."

The classic, in contrast to the romantic, is orderliness, reality, measurement, verifiable truth, scientific proof and accuracy and deductive logic. Darrow's closing is romantic. It has little to do with verifiable truth and logic. Darrow does not slow down for factual details. He speaks of the larger issues of the poor and the oppressed, the effort to destroy the working man. He only discusses the evidence after he has placed himself among those who fight the oppressors.

In practice the romantic argument, standing alone, wins few cases. Its magic is evaporative. And if there is an accountant or a vice president of a bank on the jury it makes little impression. Those with a leaning towards the logical are suspicious of the emotional appeal. It is my experience that in time the logical thinker converts the poets on the jury panel.

Gerry Spence in the Karen Silkwood closing blends the romantic and the classic. He deals with emotion and he also deals with the facts. It is a closing that engages both the accountants and the poets on the jury, and helped persuade the jury to award $10,505,000 to Silkwood's estate. (The verdict was appealed all the way to the Supreme Court, and eventually the parties settled.)

Captain Daniel And The Classic Argument

For an excellent example of the clean, classic argument, we turn to Aubrey M. Daniel, III, as Captain Daniel, the 29-year old attorney who prosecuted Lieutenant William Calley, Jr., for his role in the infamous My Lai Massacre. Several years after the massacre on March 16, 1968, Calley was charged with the premeditated murder of 102 Vietnamese civilians. Calley's trial began in November 1970 before a military court at Fort Benning, Georgia. An army judge presided and the jury consisted of six army officers. The trial lasted four months. There were 62 witnesses for the government and 44 for the defense. The defense argued that Calley was a scapegoat and the responsibility for the massacre should have been placed on Captain Medina. The military jury found Calley guilty of the premeditated murder of the 102 Vietnamese civilians.

Daniel gave a superb, classic argument. It was presented as a military exercise, each piece of evidence carefully fitted with the next interlocking piece. As the editors of Greatest Closing Arguments explain: "There was no throwaway or unnecessary wind up; Daniel got right down to the business of orienting his jury. He began with a brief overview of the four separate incidents that made up the charges. He then followed up with a more detailed account in which he fleshed out the incidents with a fairly fine brush to establish the compelling nature of the prosecution's case. Interlocking with this more detailed account, Daniel established the corroborating links and witnesses from charge to charge."

Closing arguments these days are much shorter than the ones in the book under review. It is rare indeed that a closing argument exceeds two hours. The attention span of judges and jurors is television-trained. The time allowed for a closing must be used in the presentation of the evidence, in many cases, the testimony of an expert. There will be graphics and charts. Factfinders want visuals, television by other means.

in this book are the gifted few who have the stamina a trial requires and the imagination and energy to rise to the occasion.

Jacob A. Stein is a trial lawyer at the law firm of Stein, Mitchell & Mezines LLP. He is the author of Closing Argument - The Art and The Law (1969).

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