"...I need ammunition, not a ride."
-Ukrainian President Volodymyr Zelensky
February 25, 2022
-The Associated Press
Dear Colleagues,
Since writers around the world have devoted many column inches to the above quote, I thought I would weigh in on these six words that will go down in history. President Zelensky has become a great communicator. His speeches are analyzed for their effect on the audience. He is adept at referencing past famous speakers such as the Reverend Dr. Martin Luther King Jr., Winston Churchill and Golda Meir. He has shown his skill at persuasion with a few, well-chosen words.
His quote is so great and pithy and brave that I was a bit dismayed when I came across an article in The Washington Post questioning the sourcing of the quote. This brought to mind an author also known for pith as well as prose. Truman Capote famously said, "I remember things the way they should have been." Decades ago I watched Capote on The Tonight Show Starring Johnny Carson regaling the audience with a tale about a party in New York, when this exchange (from memory) took place:
Another guest on the couch: "Now Truman, I was at that party and it didn't happen exactly that way."
Truman: "Well, it should have."
By now, you're probably asking yourself, "What does all this have to do with the Civil Jury Project?" In early February, Laura Kusisto, U.S. Legal Affairs Reporter for The Wall Street Journal, reached out to us for background information for her story about the pandemic and the resulting backlog of cases.
When asked about trial backlogs, I always turn to time limits for trials as the most direct solution. Some lawyers chaff at the thought of being limited on time. Excellent and experienced trial lawyers realize that time limits can help them edit and polish their cases for greater effect. The irony is that the shorter the trial, the longer the preparation. I turn to yet another President.
In answering a question about how much time it took him to prepare a speech, President Woodrow Wilson replied, "If it is a ten-minute speech it takes me all of two weeks to prepare it; if it is a half-hour speech it takes me a week; if I can talk as long as I want to it requires no preparation at all. I am ready now." The same holds true for timed trials.
We now have come full circle to the reason I highlighted the power of six words. Less can be, and usually is, more. Most jury surveys reveal the primary complaint jurors make about attorneys is that we are too repetitious. When I was on the bench one of my favorite sayings was, "You don't need to plow that field twice."
With the efficiency and effectiveness of timed trials in mind, I offer at the end of this newsletter a piece I wrote entitled, The Power of Simplicity. I tried to give examples of how to pack the most persuasion into the fewest words.
But first, we thank Judge Pierre Bergeron for his article on reviving jury trials through state constitutions. We hope this is a continuing discussion.
In closing, we want to continue to be of assistance to court systems and individual judges as they navigate the restart of jury trials. In our November newsletter we outlined our work with the state of Illinois in crafting protocols for remote jury selection which were adopted by the Illinois Supreme Court. If your court system would like our assistance, we are ready, willing and able to work with you.
If you wish to contribute any article or resource to the Project, we welcome any effort that will help restore and improve the civil jury trial system.
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Sincerely,
Hon. Mark A. Drummond (ret.),
Executive/Judicial Director
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May 11 to 13, 2022
Connecticut Bar Association
Litigation Section Retreat
In-person. For registration information click here.
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The Promise of State Constitutions In Restoring the Jury Trial Right
By Hon. Pierre Bergeron, Ohio First District Court of Appeals
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Judge Pierre Bergeron was elected to Ohio's First District Court of Appeals in 2018 and recently served as the Court's Administrative Judge. Judge Bergeron serves on the Ohio Supreme Court's Wrongful Conviction Task Force and has been actively engaged in promoting the creation of a statewide sentencing database. In private practice before taking the bench, Judge Bergeron argued twice before the U.S. Supreme Court and led the appellate practice group at a global law firm.
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The Power of Simplicity
By Hon. Mark A. Drummond (ret.), Executive/Judicial Director of the Civil Jury Project
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"I should be glad, if I could flatter myself that I came as near to the central idea of the occasion, in two hours, as you did in two minutes."
...letter from Edward Everett to Abraham Lincoln written the day after the Gettysburg Address.
Edward Everett, the principal speaker at Gettysburg, was a congressman, senator, governor of Massachusetts, minister to Great Britain, secretary of state, president of Harvard, and considered to be a spellbinding orator. At Gettysburg, he spoke for two hours. We don’t remember a word. Lincoln was mistaken that “the world will little note, nor long remember what we say here.” The world has certainly both noted and long remembered what he said at Gettysburg.
There is genius in simplicity. Less is truly more. Albert Einstein said, “If you can’t explain it simply, you don’t understand it well enough.” I’m still not sure what happens to us or when it happens to us. Perhaps at a young age we were rewarded for knowing big words. Perhaps we got A’s in vocabulary or won a spelling bee. Most likely, it happens our first year of law school when we want to write or sound like our perception of a lawyer.
Last fall, a first-year law student called to ask me for help securing an externship. His purpose in calling me was for connection, not correction. However, when I asked that he send his résumé so that I could include it in a letter of introduction, the corrections were necessary. I simply could not have him send his résumé to any of my colleagues. Now know that this young man was very bright: Ivy League law school, top of his class at undergrad, and an Eagle Scout to boot. Under “Experience” he listed working as a certified pharmacy technician. Being able to deal with people is an important asset. However, this was his description of the job: “Facilitated customer satisfaction and insured patient retention through detailed explanation and complaint resolution.” I told him to change it to: “Helped customers.” Any judge worth working for appreciates clear, simple language. If you can say it in two words, why use thirteen? He got the job.
Let’s turn to the courtroom. Two years ago I was asked to speak at an advocacy institute. I like to sit in on the other lectures, and in one of them, a judge was retelling what she considered to be one of the shortest, but most powerful openings she had ever heard. She asked both counsel if they were ready to proceed, and they were. She gave the green light to the plaintiff’s attorney, and as he was rising he said, “May it please the court.” He then paused, all attention upon him, and said these five words: “Your Honor—the roof leaks.” And he sat down.
The judge said it was the most brilliant opening statement she had ever heard. He captured the essence of the case in three words, and she said defense counsel was backpedaling from there on. It does take courage to trust that a laser beam is better than a blunderbuss. Where does this come from? As lawyers we are trained to dot every “i” and cross every “t.” However, when I send out jury surveys, the number one complaint about lawyers is that they are too repetitious. It is as if we do not trust that people understand us unless we repeat ourselves multiple times. What may be a good argument loses impact if it is repeated over and over again. The listener begins to wonder why the speaker keeps plowing the same ground.
Good arguments are not subject to the same formula as recipes. Twice the salt makes the dish twice as salty. In my opinion, stating the exact same thing twice makes it half as good. While “of the people, by the people, for the people” is both beautiful and persuasive, “of the people, of the people, of the people” is not. Repetition can be powerful if there is some variation to it, but it is boring if not varied and, in some instances, it can actually hurt our case.
“I find the less experienced the attorney, the longer the cross, which is usually a real mistake,” says Hon. Nancy Friedman Atlas, Houston, TX, a member of the ABA Section of Litigation’s Council and Federal Practice Task Force. “Restrict yourself to points that are strong. Juries think that arguing with witnesses is a waste of time. Save the argument for closing.”
Now, let’s turn to the power of simplicity in writing. The following two sentences were taken from a 1949 U.S. Supreme Court decision reversing a murder conviction based on a coerced confession. Justice Felix Frankfurter wrote: “[T]his was a calculated endeavor to secure a confession through the pressure of unrelenting interrogation.” Justice Douglas wrote: “The man was held until he broke.”
Those two sentences say exactly the same thing. Justice Douglas’s sentence has the power of simplicity. It would be the perfect opening line to a motion to suppress, an opening statement, or an argument on appeal: “This is a case . . . about a man . . . who was held . . . until he broke.” Say it out loud, pausing for the periods, to hear the power of this sentence.
Simplicity also helps us handle the bad stuff. An old adage among trial lawyers is that if you don’t have the law, pound the facts; if you don’t have the facts, pound the law; and if you have neither, pound the table. I have read some articles on advocacy that advise making the case more complicated or obtuse if both the law and facts are against you. I think this is bad advice. Your credibility with a judge is everything. If both the law and the facts are against you, do you really think you can trick the judge into thinking something simple is truly complex? If you are faced with this dilemma, is there another way that preserves your credibility and serves your client?
I tell new attorneys that the shortest distance between law school and earning the respect of judges is strict adherence to ABA Model Rule of Professional Conduct 3.3(a)(2), which states “A lawyer shall not knowingly fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.” In fact, I tell new attorneys to take the words “directly adverse” and change them to “arguably adverse.” Why? There is nothing more powerful than the advocate who comes into court and says, “Your Honor, this is our position. However, we must tell you there are three cases that are arguably against us. Here they are. Here is the one case in our favor, and we would ask the court to follow it for the following reasons.”
There is power in simply and quickly separating the wheat from the chaff for the court. There is power in total frankness on both the facts and the law, and there is power in citing contrary authority. You show you are not concerned about it. It is even more devastating for the other side when you cite cases that are against you that they have not found. No less an advocate than Cicero said that the perfect advocate is one who can argue both sides of any case. Judges learn very quickly which advocates tell them the truth, the whole truth, and nothing but the truth. You are going to have cases with bad facts and law that is against you. In these cases, your battle is all uphill. Frankly telling the court, “Your Honor, the law is against us, however . . .” or “We are going to ask the court today to go out on a limb and find this provision does not apply, or is void, or is unconstitutional for these reasons . . .” gets our attention and has power. Total frankness with the court and hitting your obstacles head on, combined with citing contrary authority, builds your reputation as an ethical and effective advocate.
It is fitting that I end with closing argument. “Short words are the best,” said Winston Churchill, “and old words when short are the best of all.” Short words, well said, have power. Although the pedigree of the following story can be questioned, the point cannot. According to literary urban legend, Ernest Hemingway was sitting with some fellow writers at The Round Table at the Algonquin Hotel. A challenge was issued as to who could evoke the most emotion with the fewest words. Wagers were placed. Hemingway took a napkin and wrote these words: “For sale, baby shoes, never worn.” Hemingway collected his winnings.
“I recall reading about a less than two-minute closing argument delivered by the late great Moe Levine for a client who had lost both arms,” recalls Paul Mark Sandler, Baltimore, MD, cochair of the Section’s Litigation Institute for Trial Training. “His final two lines were: ‘I need not call any army of experts and parade before you countless medical professionals to illustrate this boy’s loss. I need only tell you that I had lunch with him today . . . and he ate his food . . . like a dog.’”
Resources:
Watts v. Indiana, 338 U.S. 49 (1949).
Steven Wisotsky, Speaking with Power and Style (2013)
Published in Litigation News, Volume 39, Number 3, Spring 2014. © 2014 American Bar Association. Reproduced with permission. All rights reserved
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The Hon. Mark A. Drummond (ret.) is the Executive / Judicial Director of the Civil Jury Project. He was a trial lawyer for 20 years before serving on the bench as a trial court judge in Illinois for 20 years. He has returned to the practice of law and is currently licensed to practice in Illinois and has applied to be licensed to practice in New York.
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Look out for the July Newsletter!
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Civil Jury Project, NYU School of Law
Wilf Hall, 139 MacDougal Street, Room 407, New York, NY 10012
markd56.md@gmail.com
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Samuel Issacharoff
Faculty Director
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Mark Drummond
Executive/Judicial Director
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Kaitlin Villanueva
Admin. Assistant
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