How to Use Character Judgments to Win Arguments

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.

Featured image: “Vintage Ad #1,417: Slander!” by The Weston Times and Guide, December 12, 1917 is licensed CC. The image has been modified by removing the bottom part of the advertisement.

1. You may also want to review the transcript (ancient, I know) of his closing argument. ↩

2. If you’d like to see how the prosecution should have argued the O.J. Simpson case, check out former prosecutor Vincent Bugliosi’s mock closing argument. ↩

How to Use Character Judgments to Win Arguments was originally published on Lawyerist.