Figurative language — metaphor, simile and extended analogies — may seem like window dressing, an aesthetic triviality, but using it effectively can score a lawyer key points with his or her audience. Rhetorical questions, body language and diction are also matters of style that careless lawyers may pay scant attention to, but they can have a direct impact on a case’s outcome.
As we remember best what we hear first and last, the closing argument, like the opening statement, should be a delivered with a strong grasp of tone, style and language, and how all these factors can persuade jury.
A figurative analogy is an effective implement of persuasion. Bear in mind, these analogies do not have the same force as a literal analogy, which compares cases that are similar in relevant characteristics. The figurative analogy is a story, sometimes a metaphor, developed to compare unlike characteristics.
Using a figurative analogy that develops a key theme in your closing argument can be one of the most powerful techniques of delivery.
Everyone enjoys a story. Listeners, judges or juries often create their own “stories” or themes in making decisions. A figurative analogy in a closing argument can help the listener accept your points in the terms of a narrative, thus allowing him or her to subconsciously come to the conclusion you desire.
When a listener believes he or she has come to a conclusion independently of you, your argument and case theory become more acceptable. It’s important that when you use a figurative analogy, that you relate the facts of your case to the elements of the analogy. Frequently, analogies are used but not completely developed, and hence the full effectiveness of the analogy is lost.
An example of a figurative analogy would be using the poem “The Bridge Builder” in an effort to demonstrate the noble goals of the senior citizen plaintiff seeking damages against a corporation, when the plaintiff has been portrayed as a wealthy individual.
In “The Bridge Builder,” an old man builds a bridge to cross a stream. A passerby chides him, arguing that the old man had the skill to cross the stream without the bridge and was so old that he probably would never be crossing again. The man replied that he was building the bridge for others who may come after him.
Invoking such a passage at the end of a trial grabs the jury’s attention and allows it to envision the case in terms that are favorable to your client. Enhance the persuasiveness of your point by telling a story that draws surprising parallels between the events or characters in the case and those in the tale.
Like a figurative analogy, a rhetorical question can help engage the listener and give each one the independence to reach his or her own conclusion.
The rhetorical question can engage both the conscious and unconscious mind.
Consider the series of rhetorical questions posed by the prosecutor in the trial of Bruno Richard Hauptman, who was charged and convicted in the kidnapping of the Lindbergh baby. “Did he use the chisel to crush the skull at the time or to knock it into insensibility? Is that a fair inference? What else was the chisel there for?”
Rhetorical questions such as these psychologically assist jurors as they generate the feeling that the jurors are thinking for themselves.
In planning the rhetorical question, be sure it doesn’t highlight a weakness in your own case or raise issues that you did not intend to address. Don’t structure a rhetorical question so that your opposing counsel can answer it in a way that is consistent with his or her case. The thought-provoking rhetorical question must be used carefully to invoke the conclusion you desire.
No aspect of your closing argument influences your delivery and overall ethos more than non-verbal communication. How you dress, use of eye contact, variations in tone and volume of your voice, and use of the space in which your argument is presented can have a huge impact on the audience.
In the closing argument, the goal of your every movement and expression should be to match non-verbal cues with your message. Nothing can be more disconcerting to your client, the judge or jury when you argue the seriousness of the matter while smiling or rolling your eyes.
As you draft your closing argument, rely on vivid language that most powerfully and effectively communicates the message you want your listener to receive. Do you want to characterize the event as an automobile accident or an automobile collision? In general, the Harry Truman approach of plain speaking is advisable. Give consideration to the arrangement of your words, developing a rhythm and injecting appropriate similes and metaphors to help enrich your style.
These techniques or implements of persuasion will instill life into the matter or substance of your argument and demonstrate your power, trustworthiness and conviction in your cause.
Of course, the over-stylized performance can be just as damning as the dull. Shakespeare knew this well. Before your next foray on the stage of justice, consider Hamlet’s wise counsel to the players:
“Speak the speech, I pray you, as I pronounced it to you, trippingly on the tongue; but if you mouth it, as many of our players do, I had as lief the town-crier spoke my lines. Nor do not saw the air too much with your hand, thus; but use all gently, for in the very torrent, tempest, and (as I may say) whirlwind of your passion, you must acquire and beget a temperance that may give it smoothness. O, it offends me to the soul to hear a robustious periwig-pated fellow tear a passion to tatters, to very rags, to split the ears of the groundlings, who for the most part are capable of nothing but inexplicable dumb shows and noise. I would have such a fellow whipped for o’erdoing. Termagant. It out-herods Herod. Pray you, avoid it.
“Be not too tame neither; but let your own discretion be your tutor. Suit the action to the word, the word to the action, with this special observance, that you o’erstep not the modesty of nature; for anything so overdone is from the purpose of playing, whose end, both at the first and now, was and is to hold, as ’twere, the mirror up to nature, to show virtue her own feature, scorn her own image, and the very age and body of the time his form and pressure. Now this overdone, or come tardy off, though it make the unskillful laugh, cannot but make the judicious grieve; the censure of the which one must in your allowance o’erweigh a whole theatre of others.”