Apr 03, 2015 Parables, schmarables. To persuade, open your heart to help open others’ hearts, and tell a persuasive story
This year, the Voice of America and a freelance journalist with a major magazine interviewed me about the Boston marathon bombing trial against Dzhokhar Tsarnaev, humanizing criminal defendants to jurors, and Tsarnaev’s lawyer and my hero Judy Clarke.
The Voice of America interview was videotaped in mid-January 2015, but apparently was reduced to the following correctly-presented article quote in early March 2015:
“‘Mr. Tsarnaev has hit a gold mine by having Judy on his side,’ said Jon Katz, a criminal defense lawyer who has met and admired Clarke for many years. ‘I doubt he could do any better.’ ‘When a jury remembers that every single criminal defendant starts as an innocent baby, has a beating heart, has blood running through their veins, the jury has less trouble realizing this is not a monster,’ Katz said."
Then, last week, a freelance journalist preparing an article for a major magazine — with an anticipated June or July 2015 pubication date — interviewed me about humanizing clients, including in the context of Judy Clarke’s client Tsarnaev. Early on, the interviewer asked me about using parables to persuade jurors. Parables, schmarables. If a lawyer wants to win a trial, s/he needs to spend substantial time talking with and knowing his or her client; investigating the case,;obtaining and reviewing discovery; fully developing a strategy, persuasive story and effective flowchart alternatives for potential curveballs,; knowing the applicable law; and fully absorbing, living, and breathing life into the case. Once that is done, the lawyer can best proceed with minimal if any notes and be in the moment at every stage of the trial. If parables fit with the persuasion, fine; if not, then not.
Do we bring notes or parables to a visit for lunch with friends? Do we bring notes when spending time with our families? Notes are from the past. Persuading is in the moment, and is about seizing the moment and the opportunities the moment provides, and about being in the moment to deflect, neutralize, and deflate curveballs, bows and arrows. Persuasion requires a lawyer’s realness. To not be real is to be fake and not trusted. If a parable fits a lawyer’s realness in the moment, fine. If not, then the parable should not be uttered.
Notes do not enable a criminal defense lawyer to help put an emotionally connecting lump in the throats of jurors to fully see and feel the criminal defendant as a full human being and not as a monster. The criminal defense lawyer must fully open his or her heart to the jurors, to the defendant, to the lawyer’s self, and to everyone. How is the jury going to open its heart to the defendant any more than the criminal defense lawyer opens the lawyer’s heart to all?
Great persuasion at trial ordinarily integrates persuasive storytelling, which helps transport the storyteller and listeners to the very moment, place and feeling of the action, without the distraction of all the data the jury has been presented before the criminal defense lawyer has asked even the first cross-examination question; dispensing with legalese and having the story persuasively unfold from there.
The freelance lawyer asked me what I have learned from my interactions with Judy Clarke. I already know from the news reports that Judy, like I, is fully opposed to the death penalty, and that she invests every fiber of her being to convince jurors to see her clients as full humans who should not be executed. In her presence during the National Association of Criminal Defense Lawyers where I interacted with Judy a few times in the early 1990’s and at the Trial Lawyers College where I spent some time with Judy in 1995, she was one of the few people from whom I truly learned and benefited simply by being in her presence, where Judy is a fully caring human, showing no ego.
Shortly after Judy arrived at the Trial Lawyers College for two or three days a few days before the four-week college ended, I returned from running for several miles. When I greeted her, Judy held open her arms to hug me. When I said I had just returned from a run, she still hugged me, without hesitating about whether I had sweated. What a real human being Judy is.
The next day in the later afternoon, Judy and I both took a several mile-long run together. She was well fit to talk as we ran in this hilly higher altitude that took a few days for me to acclimate to from the huffing and puffing in my first few days of running in the thinner air.
The freelance interviewer asked me the role that gender may play with Judy’s abilities. I replied that male lawyer John Delgado displays similar excellence to Judy. Gender should not be the determinative factor in a lawyer’s abilities.
Judy Clarke rocks. She is among my most favorite lawyers.