DO’S AND DON’TS OF JURY ARGUMENT

DOS :
1. Do recognize that one of the basic principles of persuasion is that you
must appeal to all the senses: Behavioral scientists tell us, for
example, that people differ in what influences the opinions they form.
Many people learn more through visual stimuli than they do by the
aural (sound) sense. That means you do need to use a few persuasive
visual aids or exhibits in your argument and opening. As they say,
seeing is believing.
2. Do appeal not only to reason but to emotion and shared values.
Matters of the heart and the spine influence matters of the head. As the
old bromide goes, " A mind all logic is like a knife that is all blade. It
makes the hand bleed that uses it."
3. Do understand that your perceived integrity (ethos) is part of the
message the jury receives.
4. Do look good! Dress to impress your message upon the jurors. To the
outside world, we are what we wear. The image that we present is the
image that will be perceived. Think about how you want to be
perceived by the jury. Do you project that image? Take as your motto;
"If I die in front of this jury, I will die well-dressed!"
5. Do practice your jury argument (and opening statement).
6. Do know roughly how long your argument (and opening statement) will
last.
7. Do keep your jury in the loop. Work with them, not for them. Talk to
them, not at them. With your jury, strive for interaction rather than
reaction.
8. Do align yourself with the jury by using the first person plural "we." For
example, "We have learned." is preferable to "You have learned."
9. Do take charge of the courtroom if you are free to move about it. Do
use your power. This means that prosecutors have the power to point
at the accused and defenders have the power to point at prosecutors.
Prosecutors do have the power to walk over and deliver part of their
argument while glaring at the miscreant-defendant, and defenders do
have the power to look accusingly at the prosecutor when talking about
police overreaching, crime lab screw ups, etc.
10. Do flesh out the characters in your story of the case. Every trial story
has a plot and actors (players, characters). To keep the story from
being superficial, describe the characters in the manner most
supportive of your version of the plot. The evidence must support your
characterization of the players. Of course, your description of the

players or characters in the story may differ from your opponent's. The
prosecution's protagonist may be the defense's antagonist, e.g., the
complaining-witness as the prosecution's victim (protagonist) and the
defense's provocateur (antagonist), the accused as the defense's
victim (protagonist) and the prosecution's wrongdoer (antagonist).
11. Do more than simply provide information to the jury. Let your objective
be to influence their decision. Mobilize the words of your argument so
they exert a positive, persuasive force. Allow yourself to vocally oppose
injustice and unfairness. With crimes of violence, prosecutors will try to
engender fear.
12. Do condense it. Get to the core of your case. You can't say everything,
but, if you want a verdict, you must explain to the jury why you are
entitled to it.
13. Do tell the jury not only what the evidence is but what the evidence
means. Your job is not simply to bring the facts to life. You must also
interpret the evidence for the jury. Help your jurors understand the
relevance of the facts..
14. Do believe in what you are saying. And do act like you believe in what
you are saying.
15. Do distinguish between evidence and facts. Explain how all evidence is
not facts, but all facts are based on evidence.Do talk about facts and
the lack of facts and what inferences should and shouldn't be drawn
from the facts. Explain that facts in a vacuum don't have a clear
meaning. Their meaning must be interpreted by the mind in order for
their significance to be discerned.
16. Do answer the the questions you think the jurors would like to ask you,
if they were allowed to question you during argument.
17. If you are a prosecutor, do tie up all loose ends of your case and
present your theory as simple and uncomplicated. It needs to make
sense to the kids at the skate park and the seniors on the assisted
living floor of the nursing home. If you are a defender with only a
reasonable doubt defense, loose, frayed ends of prosecution evidence
and a complex, Byzantine prosecution theory of the case are positives.
18. Do use simple understandable examples and analogies when you are
trying to convey abstract legal concepts.
19. Do stay within informal conversational distance (5-10 feet) from the
jurors during argument. Move in and out without pacing.
20. Do show the jurors your eyes and your hands. Make eye contact with
each juror. Let your gaze be friendly, not a stare. When you show your
hands, do use your open palms to indicate openness.

21. Do use one hand or both to gesture.
22. Do allow your facial expressions to reflect the mood or emotion, e.g.,
anger, curiosity, disappointment, fear, seriousness, levity, concern, etc.,
that is consistent with your words.
23. Do use affirmative and negative head nods to enhance your message.
24. Do use inflection and pauses (momentary silence) to underscore
(emphasize) your point. Suggestions re persuasive variations in voice
are explained elsewhere.
25. Do identify the major problems with your opponent's theory of the case,
and challenge its weaknesses point by point.
26. Do listen, listen, listen to the opposition's argument. You may have an
excellent reply to it.
27. Do be enthusiastic about your message!
28. Do conclude with a strong message.
DONTS
1. Don't read your argument! Never, never, never read your argument (or
opening statement) to the jury!
2. Don't throw a wet blanket on your story in argument or opening
statement by recounting in chronological count-by-the-numbers order
what each witness said. Tell your story in a seamless narrative web.
3. Don't overestimate the jurors' power and willingness to understand
what your evidence means. Don't ask the jurors to assume too much.
Where is available, offer evidentiary proof that will back up the claims
and contentions you will make in jury argument. Spell it out.
4. If you are asking the jurors to presume the existence of one fact from
proof of another fact, you'll need to explain why one fact logically flows
from the other. Interpret the factual circumstances in a manner that
makes clear what logical inferences should be drawn from them.
Remember, jurors are only open to what they can cope with. If you
overshoot the field, you'll lose your communicative connection.
5. Don't say "I know," "I think," "I feel," "I believe," or any other "I" that
reflects your personal knowledge, belief, or opinion about evidence.
This is a no-no. Instead, look at the evidence through the juror's eyes
and simply state that the evidence proves the fact. Another way of
doing this is use the phrases "We know from the evidence.," "Don't you
think," "Don't you feel," For example, if you want to say that you know

from the evidence that the car was red, resist the temptation and say
"From the evidence we know that the car was red."
6. Don't run aground with an unnecessarily complex theory of your case.
In pretrial, reduce your theory to a short, one-paragraph explanation,
clear of obstacles, that can be understood by a group of bright twelveyear olds. If your case is complex, make it simple by using informative
visuals, e.g., timelines, relationship charts, element charts, evidence
charts, etc.
7. Don't ignore the weaknesses in your case. If you are reasonably
certain that the opposition will argue certain issues as barriers to your
success, try to get the jump on your opponent. Address the problems
and cast them in the light most favorable to your position. The idea is to
show the jury that any weaknesses in your case are nothing more than
minor speedbumps on the road to the desired verdict.
8. Don't misquote evidence or try to twist or interpret it into a form that
doesn't have legs.
9. Don't contest the uncontestable. Don't dispute the indisputable. Don't
advocate the unbelievable. If you do, you'll lose the jury's trust and
maybe the case.
10. Do not tell the jury what you say is not evidence. It belittles your
argument. You want the jury to accept your word as gospel.
11. Don't use long words when short words will do.
12. Don't rely on cliches to make your point.
13. Don't carry a pen, pencil or legal pad. One of the annoying distractions
for jurors, is the lawyer who toys with a pen or pencil. It's okay to use a
sharp pencil as a pointer on the video camera platform, but ditch it
when you are arguing. [Obviously, pens and pencils are not digestible.
So, chewing on them has no purpose other than to reveal to the jurors
that you are as nervous as a lab rat.]
14. Don't rattle your jewelry "like an impatient pony jangling its harness."
Similarly, don't rattle the change in your pocket or play with other things
that might be in there.
15. Don't pace from side to side. [Move in and out.]
16. Don't stroke your face, arrange your hairdo, or play with your facial hair.
17. Don't fold or wave your arms.
18. Don't employ hasty jerky gestures reminiscent of comedians in silent
movies.

19. Don't roll your eyes, glare, smirk, or sneer, in disbelief, dismay, or
disgust.
20. Don't yell! Your voice must be strong, but be cautious even in raising it
above conversational tone. The level and quality of your voice is a
persuasive tool to be used with thought. The jury is a captive audience
that must remain silent during the trial. Jurors have to hear your voice.
Don't make that experience unpleasant. .
21. Don't act for stage effect. You are a performer, not an actor.
22. When the opposition scores heavily with a strong argument, don't
flinch. Even though you feel inwardly crushed, don't show it on the
outside. Don't allow your attitude, posture or facial features to reflect
defeat. Remain as cool as the proverbial center seed of a cucumber.
23. Don't appear inattentive and detached. When the opposition is arguing,
look at the jury, not at your shoelaces..
24. If you thank the jury in argument, don't overdo it. Don't fawn or brownnose.
25. Don't avoid eye contact when arguing to the jury. If you can't look 'em
with your eyes, they are not going to believe you, no matter what your
mouth is saying.
26. Don't hesitate to look at and talk directly to the juror(s) you identify as
being with you.
27. Don't talk too fast. Machine gun speech patterns that chatter like a
squirrel on amphetamines won't be understood. And worse, the jury
won't follow what you are saying.
28. Don't try to repair a run-on or overloaded sentence that poorly
expresses your thoughts. Simply stop and say, "I'm not making myself
clear. Let me rephrase that thought more clearly."
29. Don't say, "I believe." Personal opinion of the lawyers is objectionable
argument, e.g., prosecutors are not allowed to say, "I know the
defendant is guilty because God's spirit tells me so in my heart."
Instead, act as though you believe every word you are uttering to the
very core of your being. Try saying: "The sworn testimony shows" or
"Doesn't it make sense" or "The logical conclusion is."
30. Don't lose your opportunity to persuade during argument because you
have neglected your homework. Remember the Marine Motto: Fail to
prepare, prepare to fail and the well worn "Five P Rule" - Prior
Preparation Prevents Poor Performance.

31. Don't appear bland. Be pleasant, upbeat, and enthusiastic. Enthusiasm
is not the same as excitement.
32. Don't get angry or mad , except on purpose.
33. Don't let your ego get in the way of your message.
34. Don't tell laugh-out-loud jokes. You won't be taken seriously, even if
they are kind of funny.
35. Don't hesitate to allow some liveliness into your vocal pattern. Your
voice is a weapon in your persuasive arsenal.
36. Don't ramble.