To be a trial or appellate lawyer is to be comfortable with public speaking for our courts are open to the public. Justice is to be seen to be done.
I am never surprised when lawyers speak articulately in mysteries. We try to speak clearly and directly contrary to public myth.
The flashing eyes and powerful baritone of Raymond Burr as Perry Mason dominated television 50 years ago.
What reader of mysteries and viewer of television mysteries cannot instantly recall the rolling phrases of Leo McKern as Rumpole of the Bailey staunchly defending the Timsons.
More recently, Matthew McConaughey in the movie A Time to Kill by John Grisham gave a memorable performance as the lawyer, Jake Brigance, defending an African American in the Deep South.
On paper who could not admire the suave Sandy Stern in Presumed Innocent and Innocent skilfully questioning witnesses and presenting arguments on behalf of Rusty Sabich.
In the novels of Robert Rotenberg taking place in the coutrooms of Toronto an ensemble of Crown and defence counsel are true professionals. They prepare well and find the weaknesses in the testimony of witnesses.
What fiction does not portray is that while real life lawyers are just as skillful as their fictional counterparts they are not as perfect.
Questions are occasionally mangled. I tell witnesses not to worry about perfection as I can guarantee them there will always be questions I wish I could have re-done.
Most difficult to re-create are closing addresses to juries. Seeking to persuade a jury does not often flow with the beautiful phrasing of fiction, television and the movies. The hesitations, adjustments to the reactions of jurors, the examination of notes, the cadence do not transfer well to print and screen. I try not to read addresses as you risk the connection of speaking directly to the jury by following a script.
Gerry Spence, famed American trial lawyer, describes his address to the jury in his book, How to Argue and Win Every Time, in the defence of Randy Weaver:
'I'm afraid I won't be able to make the kind or argument to you that Randy Weaver deserves,' I said. 'After nearly three months of trial, I'm afraid I won't measure up. I wish I were a better lawyer.' As always, the fear began to slink away and the argument began to take its place, one that was to consume nearly three hours. It was an argument that was honest, and angry and humorous, one that was punctuated with defects and false starts and syntax that would horrify any self-respecting English professor. It was an argument that was a real as I was able to be - an argument that, in the end, was to free my client."
Still Spence, in an address to a legal seminar on
jury addresses, spoke about a closing for jury trials that he had developed
that reads as well as it does to listen to (visualize his hands as you read):|
"Here’s the story of the bird that some of you wanted to hear again. This is one I’ve used many, many times. It’s a nice method by which you can transfer responsibility for your client to the jury.
Ladies and gentlemen I am about to leave you, but before I leave you I’d like to tell you a story about a wise old man and a smart-alec boy. The smart-alec boy had a plan, he wanted to show up the wise old man, to make a fool of him. The smartalec boy had caught a bird in the forest. He had him in his hands. The little bird’s tail was sticking out. The bird is alive in his hands. The plan was this: He would go up to the old man and he would say, “Old man, what do I have in my hands?” The old man would say, “You have a bird, my son.” Then the boy would say, “Old man, is the bird alive or is it dead?” If the old man said that the bird was dead, he would open up his hands and the bird would fly off free, off into the trees, alive, happy. But if the old man said the bird was alive, he would crush it and crush it in his hands and say, “See, old man, the bird is dead.” So, he walked up to the old man and said, “Old man, what do I have in my hands?” The old man said, “You have a bird, my son.” He said, “Old man, is the bird alive or is it dead?” And the old man said, “The bird is in your hands, my son.” Ladies and gentlemen of the jury my client is in yours."
Who would not want Gerry Spence standing with you fighting for your liberty?