In the words of Mark Twain…

Ten lessons for trial lawyers in the words of a master

2015 July

Mark Twain is our American Shakespeare. Like Shakespeare, his works speak to every aspect of the human condition and reveal truths about human nature that are universal. Whether it was through his novels, short stories, nonfiction or his countless speeches, he was always commenting and illuminating on man’s quests and follies with a razor sharp wit.

As a writer, performer, philosopher, and humorist, Mark Twain’s words have much to teach lawyers. His strong opinions about the law, lawyers, and juries are consistent with his penchant for having an opinion on all social issues. They are still vitally relevant today and should be either reflected upon or used in trials. I will explore a number of Twain’s quotes, show the lesson they teach, demonstrate how they would be applicable to a lawyer’s approach to the profession and preparation for a case, and how to use many of the quotes in jury trials.

Lesson One: Words are important, but don’t forget the pause

“No word was ever as effective as a rightly timed pause.” — Mark Twain

Lawyers often believe their moment to speak in court is a time to fill every second with words. Many lawyers treat an argument to a jury as a race to make as many points as possible, to cover all issues raised, and to answer any doubts the jury could possibly have. Generally, this urge to “share everything” ends up in a long-winded, unfocused, and repetitious argument which leaves jurors visibly glazed over, not thinking about the case and speculating if sheer mental will can force the lawyer to stop and sit down.

Hoping to out-muscle opposing counsel in the eyes of the jury, lawyers generally try to have the last word. Often, however, silence can speak louder than words. If an attorney is not helping his position by repeating his/her point, it can be more effective to refrain from speaking. This demonstrates that the attorney feels confident and does not need to belabor the point to the jury.

Lawyers can improve their opening statements and closing arguments by using well placed pauses. Emphasizing points through silence is far more effective than a hard drive filled with PowerPoint slides read to the jury or enlargements of jury instructions. Let the jurors digest and savor your points. The argument should be a gourmet meal, not fast food consumed and quickly forgotten. Create anticipation through appropriate pauses that break up important points. Let the jurors fill in the blanks by respecting their intelligence and ability to connect the dots. Savoring the pause instills in the jurors a sense of duty to think for themselves.

Commentator Paul Harvey (1918-2009) in his newscast “The Rest of the Story,” was the master of the pause. The pause would always create a thirst for what was to come and then a satisfactory and surprising payoff to the story. Former President Bill Clinton’s speeches are terrific examples of the use of a well-timed pause which both emphasizes what was said and allows anticipation for what is to follow. None of those stories would have the same meaning if they were told without the classic pauses. Mark Twain was the master of the pause and we should learn to take a break from our race with the words.

Lesson Two: Truth should always be an underlying theme of a trial

“If you tell the truth, you don’t have to remember anything.” — Mark Twain

If trials could be summed up in one word, that word would be truth. While many would argue that the issue in any case is not the “truth” but rather whether the “burden of proof” has been shown by the moving party, I would suggest both are true and without one, you don’t have the other. For example, the instruction for preponderance of the evidence (CACI No. 200) is titled in as “Obligation to Prove-More Likely True than Not True.” The instruction repeats the word “true” five times. Nowhere in the instruction are percentages mentioned or scales with a penny or feather on it as lawyers often mention in voir dire and closing arguments. Likewise, in the instruction on “clear and convincing evidence,” it is twice said that the jury must find that it is “highly probable that the fact is true.”(CACI 201.) Further, in the proof beyond a reasonable doubt, nowhere are percentages of 98 or 99 percent as being the standard example as frequently stated in defense closing arguments, but instead twice is emphasized the task of the jurors in deciding whether “the charge is true.” (CALCRIM 103.)

Therefore, I would recommend that truth always be an underlying theme in your cases. Use the instructions that highlight truth. Focusing on truth in litigation is something that appeals to all jurors and it emboldens jurors to their noble task, to make important decisions in people’s lives without having any legal training and rendering verdicts that will stay with the parties in one form or another. Truth as an underlying theme is a functional yard stick each juror can use when they evaluate each counsels’ closing argument.

Witnesses should be well prepared and that preparation should include a reminder about the obligation to tell the truth. Assume that witnesses from the opposing side have carefully prepared their testimony, as well. Speaking the truth, like anything else related to trial work, takes painstaking preparation. Many witnesses appear to believe that preparation is complete if you simply “answer the best you can and tell the truth,” forgetting that they are ignoring a mountain of prior discovery (including depositions) that they should have reviewed. Opposing counsel has prepared their questions waiting for slight and major errors to prior testimony and discovery. The failure to read prior testimony and pleadings prior to trial has resulted in time-consuming impeachment of witnesses on slight deviations of current statements that never would have occurred had the witness been properly prepared. Therefore, a witness should prepare for trial as if their life in litigation is a final exam which must be carefully reviewed before testifying.

Focus on truth when interviewing a witness, mention truth in every address to the jury, emphasize the credibility instruction to the jury, and consider the burden of proof and truth together.

Lesson Three: Appearing spontaneous takes much preparation

“It usually takes three weeks to prepare a good impromptu speech.” — Mark Twain

Looking spontaneous takes considerable preparation. Mark Twain had a tremendous fear of public speaking. This is the norm for excellent public speakers. As the saying goes, fight the fear and do it anyway. Lawyers who have spent ample time preparing their arguments can speak more confidently in the courtroom. Preparation empowers attorneys to stray from the script (if necessary) because they have prepared both their own arguments, and have anticipated the arguments from opposing counsel.

The speeches of one of the most studied speakers in recent years, the late Apple founder, Steve Jobs, appear relaxed with tremendous enthusiasm, a minimum amount of slides, and no notes. In fact, they were carefully crafted speeches that were studied for hundreds of hours. (See Carmine Gallo, The Presentation Secrets of Steve Jobs (McGraw Hill 2010) 180.) Being fully prepared but looking relaxed as if the words are being said in a conversational manner takes much practice but will make the message conveyed much more likely to be enthusiastically understood by the most important audience, the jury.

Lesson Four: Give the jury credit for connecting the dots

“The wait is more important than the joke.” — Mark Twain

What about telegraphing your point of view to a jury? Do you have to spell out every point to a jury or should you be able to lead them to a point and let them create their own “a-ha moment” of discovery?

Mark Twain was famous for his humor and when he spoke, he peppered his speeches with humor, but he learned from humorists he admired that the speaker should not laugh at his own jokes, not show emotion and let the audience find the humor on their own.

If you think about your favorite comedians, it is unlikely they laugh at their own jokes. It is always best when the audience discovers the humor themselves. A comedian takes away from the self-discovery process of the humor when they telegraph how an audience should react. This works the same way with jurors.

Lawyers can be humorous or deeply moving in closing argument. The discovery of the humor or the pathos would be diminished if the lawyer was too involved in the story to tell it effortlessly. An argument to jurors should be conversational, even though the jury does not respond verbally, they do by the way they receive the words in the argument. Let the jurors discover the nuances themselves from a well-crafted argument made real through voice, mannerisms, and body language.

Lesson Five: Lawyers and judges must prepare for moral cliffs

“All right then, I’ll go to hell.” — Mark Twain, Huckleberry Finn, Chapter 31

The legal profession is one loaded with potential ethical pitfalls. For years, I have taught a mandatory judicial ethics course which, in three hours, attempts to summarize the many potential ethical problems that judges face and to suggest alternatives to avoid being caught in possible problems in judicial careers. Lawyers also face ethical issues when difficult decisions must be made to uphold their roles as officers of the court. Whether it is the obligation to not suborn perjury, to turn over information that is potentially harmful to one’s case, or to return confidential material of opposing counsel mistakenly turned over, there is no end to the ethical issues lawyers confront.

In my 21 years as a judge, I always consider what Huckleberry Finn had to deal with in Chapter 31 when he was torn whether to return Jim as a runaway slave to his “owner” or to let him stay free with him. The chapter details the agony he went through to the point of writing a note revealing Jim’s secret and knowing if he did not deliver the note, in his mind, he would go to hell. His weighing of the pros and cons of doing the right thing faced with the consequences gives me courage when I consider difficult decisions. His final decision, to tear up the note followed with the phrase “all right, I’ll go to hell” should inspire us all to know that in the legal profession we will be placed on ethical cliffs in which we must do the right thing, even if what we do might subject you to criticism. Even though you may lose some temporary advantage, it will be the right thing and I hope, years later, when you face moral cliffs, you will think of Huck.

Lesson Six: Go beyond the superficial polish of an opponent’s case

“Everyone is a moon, and has a dark side which he never shows to anybody.” — Mark Twain

Mark Twain knew that people presented themselves as they wanted to be presented, but they were always hiding parts of themselves. The parts they did not want to be seen.

When two sides present a case, they present their witnesses, their themes, and their position in as positive a manner as possible. A lawyer should never accept opposing evidence at face value. Lawyers should assume a witness on direct is showing only one side of himself or herself, and that there is another side that can be revealed through discovery and cross-examination. Mark Twain’s comment about the dark side of character fits Aristotle’s view of the tragic hero which carries a fatal flaw, or Hamartia. Most witnesses who stand to gain or lose in court can mask negative issues and it is counsel’s goal through preparation and thorough knowledge of human nature to find those flaws, bring them to light, and let the jury see a complete picture of the witness.

Both sides in a case can learn much from both Mark Twain and Aristotle in preparing his or her cases. First, it is better to reveal the flaws in your own case through your own examination of your witnesses rather than waiting to see how the flaws will appear elicited in cross-examination. Redirect is an ineffective device to repair serious damage done in cross, particularly damage which could have been anticipated. Second, dig deeper in an opponent’s case and question everything, at least in preparation. Often I see cross-examination dictated wholly by direct examination as if thorough preparation was not possible. Cross-examination should always be prepared prior to direct examination and only supplemented by the live direct examination.

Finally, prepare your witnesses by potential questions on cross yourself and compose the strongest possible opening statement and closing argument of your opponent. The goal should be that your looking at your own case at its most negative will far exceed anything that your opposing party will do in court.

Lesson Seven: Learn from your mistakes and never give up

“We should be careful to get out of an experience only the wisdom that is in it – and stop there; lest we be like the cat that sits down on a hot stove-lid. She will never sit down on a hot stove-lid again – and that is well; but also she will never sit down on a cold one anymore.” — Mark Twain, Following the Equator

I have found through being a judge and teaching trial practice that there are two types of lawyers in court. First, there are lawyers that learn how to try a few cases and continue trying the cases the same way with the same techniques, the same mannerisms, and the same stock phrases. The second type of lawyers submit themselves to self-evaluation, solicit feedback from others, and take continuing educational courses in trial techniques to constantly improve. I urge my students, and I would urge every lawyer, not to be satisfied with your first few years of practice and then simply repeat it for the next four decades or so.

Lawyers and judges can always learn. When I was a lawyer, I would force myself to write down ten things I learned from whatever jury or court trial I did. That way, no matter what the result, I knew I was learning something that I could bring to the next trial. As a judge, I do the same thing, writing out points I learned from a case and brainstorming ideas that could make a trial run even more efficiently. I always solicit jurors for feedback and many of their thoughtful ideas have been incorporated into changes on how I run the courtroom.

Have others evaluate your work. Court staff and judges are often guarded in what they say in terms of feedback since cases have a long life after a verdict. You should solicit feedback from colleagues and never miss the opportunity of speaking to a jury. You might not agree with their verdict, but you might find yourself surprised at how much valuable feedback they can give you as to how your message comes across.

Finally, you should do what writers and comedians do and that is to keep a small notebook and write down any random thoughts about the trial, any phrases you hear that you could use, and any lessons you learned. Classic books and comedy masterworks have been created with random thoughts kept preserved by such a notebook. Be your own best critic by dictating what you have learned and what inspires you so you can consistently improve for the future.

Lesson Eight: Listen (and learn) from your opponent

“The rule is perfect. In all matters of opinion our adversaries are insane.” — Mark Twain (1907) Christian Science

Mark Twain was known for making outrageous statements. We can all laugh but later reflect and see its truth and wisdom. We, of course, often think our adversaries in court must be insane because, if they were sane, they would agree with us. But if we reflect (and sometimes reflection can be accomplished by seeing our “perfect” case destroyed in a trial) we have to candidly admit that we saw our case with blinders on. We have to eventually admit to ourselves that our view of our own actions − and certainly our cases − is dictated by the thought that our position is justified and should be accepted.

This reflection allows us to understand our opponent’s position from their point of view. Taking the time to understand a position diametrically opposed to your position can yield valuable lessons. Looking with an adversary’s point of view can teach (1) the weaknesses in our own case (2) a better understanding of the mindset that approaches the opposing side’s view and (3) a better approach to refute the opposing party’s view.

Lesson Nine: Trial Lawyer skills are available to anyone who strives to learn

“Training is everything … A cauliflower is nothing but a cabbage with a college education.” — Mark Twain

Mark Twain became a great public speaker whose one-man shows are still recreated today, yet he harbored a fear of public speaking. That fear of public speaking seems to translate into lawyers who avoid trying cases to a court or jury. Yet trial skills and those willing to take a case to a jury is a very marketable skill that can assist a lawyer throughout his or her career. A number of times, I have seen a lawyer step into a case at the last minute, which I later learned was actually a sought-after specialty skill.

Mark Twain went back to public speaking and doing his one-man shows numerous times in his career, and he did it for one primary reason, to earn money after failed business ventures had led him into bankruptcy. Not only did public speaking save his financial future, it also allowed him to connect with his reading audience in a way beyond his written words. I would urge all lawyers to take inspiration from Mark Twain who overcame the fear of public speaking and connected with his audience in a way that was a triumph for his career and his legacy. Lawyers can learn from Mark Twain in reaching jurors in a manner that goes beyond mere written words.

Lesson Ten: Monitor your words in speech and in print

“Age has taught me charity of speech.” — Mark Twain

While Mark Twain spoke out against many issues of the day and against people whom he believed had done him wrong, he also learned to not say everything that was on his mind. Lawyers, protected in court by the litigation privilege, use words they never use outside of litigation. The four phrases I hear most are “unethical,” “sleazy,” “lying,” and “malpractice.” I hear these words when there is little if anything to really back up the words. Lawyers may think that this is just part of advocacy, but I would strongly urge counsel to consider the lasting effect of these types of words. People do not forget these words.

While most lawyers talking about other lawyers and bench officers can be circumspect in court, it appears to be the Wild West when it comes to social media and blogs which live in a hard drive or in cloud eternity. Judges and lawyers need to be of tough skin. We knew it when we joined this profession. Nonetheless, but I would urge everyone to learn what a lifetime of living taught Mark Twain and that was to consider exercising “charity of speech.”

I have simply scratched the surface of a lifetime of lessons that can be learned through the works of Mark Twain. I hope you will read his words for inspiration, for courage, and consider bringing our American Shakespeare into the courtroom.