There’s no getting around moral judgments. We all make judgments; juries are no exception.
Trial consultant Dr. Ken Broda-Bahm describes how this works:
…the ability to identify good people matters far more than the ability to identify good acts….[W]e often mix our views of consequences with our views of character. Even harmless actions are more likely to be worthy of blame when those actions are performed by a bad character.
—”Consider Character,” Persuasive Litigator
It is the lawyer’s job to make sure the other side doesn’t get the jury to hate the lawyer’s client.
A Pox On All Your Houses—Prosecutors Too
One of the most famous examples of using moral judgment to win a case was Johnnie Cochran’s masterly closing argument in the OJ Simpson case.
How did he do it?
The clips from Mr. Cochran’s closing argument paint a vivid picture.1
Mr. Cochran succeeded by attacking the character of a lot of the people associated with the prosecution’s side —from Mark Fuhrman, to the the LAPD, to the prosecution. He did it in this way:
- Mr. Cochran accuses the LAPD (at 16:30) of fingering O.J. Simpson in a “rush to judgment”;
- Mr. Cochran uses Detective Fuhrman to go for the jugular by saying (at 18:50) that the LAPD “allowed this investigation to be infected by a dishonest and corrupt detective,” and the LAPD merely served their vanity, by “pretending to solve this crime”; and
- The prosecution had an obsession to win at all costs, and harassed, mocked, and failed to call witnesses (at 22:12) whenever the testimony “didn’t fit their tortured, narrow window of opportunity.”
Then he appeals to the jury’s morality:
Remember, I told you this is not for the naive, the faint of heart, or the timid.
We know how this one ended.2
Goofy Character Attack
The lawyer of a woman caught on tape hiring a hit man (who was really a cop) to murder her husband for his insurance money accused her husband of making it all up, with hilarious results:
Hint: If a witness calls you a parrot (2:39) and the courtroom laughs, you’re probably losing.