Endgame
Closing argument--the final opportunity given lawyers to sum up the evidence and discuss the law before the case is submitted to the jury--is high drama, in both real and fictional courtrooms. Whether it is Gregory Peck’s Atticus Finch or Joe Pesci’s Vinnie LaGuardia Gambini, the image of the lawyer pacing before the jury box in a final effort to persuade 12 peers has come to epitomize the courtroom. Surprisingly, no collection of closing arguments has been previously available in print. For that reason, the efforts of the editors of “Ladies and Gentlemen of the Jury,” who have collected 10 famous arguments, selected not so much for the cases’ notoriety as for the skill of the advocate, is especially welcome. Lawyers and nonlawyers will enjoy the passion and eloquence of these counselors; practitioners of law will find much to learn from them.
“Ladies and Gentleman of the Jury” was edited by Michael S. Lief, a practicing California deputy district attorney; H. Mitchell Caldwell, a Pepperdine law professor; and Ben Bycel, the dean of the University of West Los Angeles School of Law. Four of the 10 cases chosen are California cases, evidence that our state is not only the entertainment but also the litigation capital of the world. Two of the cases leap directly from tabloid headlines: Vincent Bugliosi’s final argument in the Tate-La Bianca multiple murder trial and Donald Re’s closing in the John DeLorean drug case. Less well known are the other two California cases, both dating from earlier times in the state’s legal history.
Clarence Darrow, called by the editors “the greatest American trial lawyer,” argued in his own defense when he stood trial in 1912 in Los Angeles for allegedly tampering with a witness. Darrow’s eight-hour summation played to a packed courtroom and, the editors tell us, proved so effective that the jury as well as the judge eventually broke into tears. Darrow was acquitted. Darrow is represented twice in the collection, the second time for his famous argument that saved the lives of the teenage murderers Leopold and Loeb. His argument stands as among the classic pleas against capital punishment.
One woman is represented in the volume, Clara Shortridge Foltz, who in 1878 became the first woman to be admitted to the bar as a lawyer in California. Mother of five children, abandoned by her husband, she studied law while supporting her family. The State Supreme Court refused her admission to the bar (despite the fact that she had passed the bar exam) and required her to take a specially prepared exam, which she also passed. Foltz practiced law in the face of sneering insults from her male colleagues. Her wit served her well in this struggle; when an opposing attorney contemptuously referred to her throughout a trial as “a lady lawyer,” Foltz answered she could not return the compliment, for she “never heard anybody call him any kind of lawyer at all.” Her client, an immigrant accused of arson, was acquitted by a jury that did not even leave the box to deliberate.
While one is grateful to see the neglected legal career of Clara Foltz represented, it must be asked if only one woman in modern legal history satisfies the criterion of stellar advocacy for inclusion in this collection. For the rest of this volume, it’s a man’s world. Justice Robert H. Jackson’s eloquent summation of the case against the Nuremberg war criminals opens the book. William Kunstler’s closing argument in the Chicago 7 trial is represented, as is Gerry Spence’s plea for justice in the Karen Silkwood case.
The subject of a recent movie, “Ghosts of Mississippi,” the retrial of white supremacist Byron De La Beckwith, who was found guilty 30 years after the fact of the assassination of Medgar Evers, provides an insight into the profound changes in the soul of the American Southern jury. There is no statute of limitations for murder in Mississippi, so that district attorney Bobby DeLaughter was able, three decades after the fact, to prosecute De La Beckwith after two all-white, all-male juries had previously failed to reach a verdict. The jury that finally found De La Beckwith guilty was representative of the New South, evidence that the administration of our system of laws throughout the jury system depends on the underlying culture of the community.
In a grisly recapitulation of the themes of the Nuremberg tribunal, the concluding selection provides the chilling narration of Capt. Aubrey Daniel in the court-martial of Army Lt. William Calley stemming from the My Lai massacre, perhaps the most grisly memory of the Vietnam War, in which (by the allegation of Calley’s accusers) an entire village of Vietnamese civilians was slaughtered.
The editors of “Ladies and Gentleman” have provided well-researched introductions to each closing argument, in which the background of the case is discussed, the career of the lawyers reviewed and comment made about methods employed by each attorney to influence the jury, techniques not different from those synthesized by Aristotle more than 2,000 years ago.
In the “Rhetoric,” Aristotle identifies three sources of persuasion by which the speaker works on the emotions of the judges themselves, gives the judges the right impression of the speaker’s character and proves the truth of the statements made. Modern lawyers, including the nine represented in this volume, follow Aristotle’s advice.
An effective closing argument must be held together by at least a thread of logic; it must prove “the truth of the statements made.” But modern juries do not have the patience for lengthy chains of reasoning. The task of the lawyer is to distill his or her argument into a catchy phrase designed to stick in the jury’s mind. Gerry Spence’s leitmotif in the Silkwood argument was “if the lion gets away, Kerr-McGee has to pay”--Spence’s way, in fewer than 10 words, of explaining the law of strict liability in tort.
Equally ingenious was the phrase of Johnnie Cochran in the O.J. Simpson criminal trial, “If it doesn’t fit, you must acquit,” another neat rhyme that also evoked the single most visually compelling moment in that trial, Simpson’s apparent struggle to put on the gloves.
The lawyer must also establish a rapport and sense of trust with the jury, to give them “the right impression of the speaker’s character.” The examples used in this book demonstrate that the initial comments by counsel are calculated to achieve this effect. “I am a stranger in a strange land, two thousand miles from home and friends,” began Darrow in his self-defense; Spence, describing himself as a “country lawyer from Wyoming,” began his summation by confessing his “greatest fear” that at this moment of truth he would be speechless. Gaining the jury’s respect or, better, its sympathy is the first step to influencing its convictions.
Lastly, every one of these lawyers sought to “work on the emotions of the judges themselves.” Arousal of sympathy for the accused and anger against the prosecution is perhaps the best and most fundamental formula to use in court. Darrow painted an image of himself as a defender of the labor movement being attacked by unscrupulous barons of big business; he succeeded in placing the government’s investigation of DeLorean on trial, rather than DeLorean’s guilt or innocence.
Though Aristotle still is a model for framing closing arguments, there has been a decline in the sophistication and eloquence of oral communication. Contrast the elocution of Darrow speaking to a jury of Angelenos in 1912 with the language of DeLaughter in the 1994 De La Beckwith trial. First, Darrow:
“If you should convict me, there will be people to applaud the act. But if in your judgment and your wisdom and your humanity, you believe me innocent, and return a verdict of not guilty in this case, I know that from . . . the weak and the poor and the helpless throughout the world, will come thanks to this jury for saving my liberty and my name.”
Now, DeLaughter:
“And so on behalf of the state of Mississippi, I’m gonna do what I told you I was gonna do in the very beginning. I’m gonna ask you to hold this defendant accountable. . . . But to hold him accountable, find him guilty, simply because it’s right, it’s just, and Lord knows, it’s time.”
No doubt each lawyer was adjusting his language to his audience at the time, so that the striking differences in style result from each advocate’s effort to reach the ears (and hearts) of his audience. Yet the contrast between the style of language attuned to persuade a California jury in 1912 and a Mississippi jury in 1994 testifies to the decline in the art of oral communication in our century. In reading these pages, one wishes more than anything else that the spoken word in the courtroom were as alive and well as the trial system itself.