Criminal trials are terrifying. Especially if you've lost before and seen a client whisked away in chains. The sight sickens. No matter how powerful or compelling your performance at trial, until the verdict is returned there is no rest. The stakes are simply too high. Give a case to the jury to decide, and all at once you understand what it is to be dependent, entirely, on the goodwill of strangers.
Closing argument is the last chance a lawyer has to plead his client's case. The jury has been selected, the evidence presented, and the witnesses attacked, cajoled and presented. It is at closing argument that a lawyer is most alone. For an hour, you stand armed only with your wits, and you can't help but wonder whether a jury hears what you are saying.
In the past few trials in which I have given closing arguments, I've tried to listen more to the jurors. Listen? you say. How can you listen when you are doing all the talking? You can listen, you do listen, I tell you, with your eyes.
I've tried more cases than I can recall, but I know this much is true: A courtroom is all about energy and bounce. Sure, there are the facts and the law. But the facts and the law are merely disconnected pieces of data. Unless they are fitted into a narrative structure, given energy, they are meaningless. And unless that narrative structure is heard by the jury, it is merely sound and fury, signifying nothing.
I know a lot about sound and fury signifying nothing. I've made many mistakes during closing arguments. Perhaps the biggest one I've made is assuming that I had the right to express any passion I felt. Fussing, fuming and emoting in the well of a courtroom without the permission of the jury is a one-man play performed in a closet. I've watched sometimes as adversaries railed away at the jury, stamping their feet and hissing in rage. When I see the jurors look away, or look down, I know the message is not being delivered. I wonder how many times I have howled into the void.
So I try to listen with my eyes. I want the jurors to tell me they've heard. I speak, I look and I listen. And when I see recognition in the eyes of one juror, I move on to another. I talk to each juror in turn, and I know my task is near complete when each has given me the cue that they have heard.
What is that cue? It is not something that can be taught in law school. It is more primitive than our education. It is at the foundation of whatever social intelligence we bring to a group of strangers.
Bounce is something like affinity, or felt necessity. Walk into a room of strangers and your feet carry you to a person with whom you feel a sense of comfort, of being heard. Try it sometime. Go to a place where you don't know a soul. Wander the room. How do you know which people are open to you and which are not? The sum of those intuitions is what I call bounce. Children discern it on a playground. Teenagers do so at a party. Adults do so when meeting with strangers. Bounce is the silent sonar of the social animal.
Plenty can get in the way of bounce. One of the biggest obstacles is a legal education. We get so adept as lawyers at reading cases, manipulating doctrine and being rule-driven that we lose sight of the very people with whom we are supposed to be communicating. To prepare for the last case I tried, I re-read Martin Buber's I and Thou. Buber's point is simple, even if his language is sometimes not: When we relate to another as a mere instrument of our will or purpose, we lose sight of their humanity. Communication between I and It will yield no passion, no bounce. It will be sterile and unconvincing. If we want to be heard by another person as complete and robust as ourselves, we must be open to the presence of the other. We must treat the other as a friend, and be open to receive the gifts they are willing to give. (If you are going to read Buber, be sure to read the Walter Kaufmann edition; his preface is indespensible.)
But treating a group of strangers as friends, as Thous with whom you are willing to share your secrets and are open to hearing theirs, is a risky thing in a courtroom. It can yield unforeseen things that conflict with the rules of procedure that seek to drive the human spirit from the room.
I gave a closing argument the other day in a criminal case. I use rhetorical questions alot to gauge the extent to which jurors are engaged in the argument. When I ask a question, I pause, and look for bounce. A nodded head, eyes suddenly turned inward, a bit of color on a juror's cheek: these things tell me a person is engaged. I make an effort to speak to the jurors assembled as I would to friends across a table. English has but one form of "you" for both group and individual. This manner of speaking can yield a sense of intimacy.
The other day, I asked a rhetorical question. I paused. A few jurors nodded. The eyes of another sparkled. I asked another question. A different juror nodded. And then the third question. This time a juror forgot the barriers of the courtroom and answered my question, simply and clearly. He returned the gift I had given.
"You cannot answer counsel," the judge was quick to interject. Why not?, I almost asked. Why are we not allowed to communicate with the folks who decide our client's fate?
But this was not the time to pick an argument with the judge. The jurors were listening, and they were engaged. This was all I could ask. So I reminded them of the cold illogic of a courtroom, and asked them to heed what I had to say, even if they could not speak. But I wonder, really, what would be the harm in a colloquy with jury during closing argument? Why not ask them what questions they would like us to answer during closing arguments? Why do we lock them up like puppets in a glass cage and then have to guess what's on their minds?
If a juror gives the gift of caring, why are we forbidden to return the gift with a response? Jurors should be free to speak with their voices during closing argument. Until they have that freedom, we must become adept at listening with our eyes.