"Linking"
“Well," said Beth, ”what do you think?”
Beth Golden was practicing her final argument for the defense in a murder trial, and had asked some of us to critique her performance.
“Sincere,” I said. “Great eye contact. Excellent organization.”
“The time-line you did on the chalkboard was dynamite,” said Regis McCormick.
Angus paused a bit before he said anything. Finally, he said, “I agree with all that, Beth. It was polished – professional. You obviously have an excellent command of the facts, and you are comfortable doing a final argument. My problem is I found myself arguing with you, and I’ve been wondering why. I think I know.
“You were forcing it,” said Angus. “You were pushing too hard. You argued the logic of every inference just as far as it would go.”
“That’s bad?” said Beth. “I thought that’s what final argument was for – argument.”
“Of course,” said Angus. “But you didn’t involve the jury. All you did was tell them how to decide the case.”
“What do you mean, I didn’t involve the jury?” said Beth. “Everything I said was directed toward them. They know they are going to be deciding the fate of my client, and they know that I’m talking about the facts that bear on their decision. Nobody is more involved in what I have to say than the jury.”
Angus smiled. “I think,” he said, “I need to follow my own advice. Instead of trying to convince you with the force of my argument, I ought to show you what I’m talking about.
“Have you ever seen those annoying television commercials where one of the characters shows up with the wrong thing, or gets the name of the restaurant all wrong?” said Angus.
“Sure,” said Beth. “They do that all the time.”
“Why do you suppose?” said Angus.
“I don’t know,” said Beth, “to emphasize the right name?”
“More than that,” said Angus. “They want you to make the connection in your mind – before anyone else does.”
“I can see they want to do that,” said Beth, “but why? What’s the point?”
“They don’t want you to just be a passive observer,” said Angus. “They want you to participate. They want you to say the name to yourself before they do so you will remember it and think about it in the right circumstances.”
“But I’m not selling frozen meat loaf dinners or fast food three-dollar breakfasts,” said Beth.
“Exactly,” said Angus, “which is why you need to do more than the television advertisements. You need to present your arguments so they actively involve the thought processes of the jurors, so they put together what you have to say.
“You need to stir their minds so that they participate in your argument,” said Angus. “You want the jurors to reach the right conclusion – but you want it to be something they feel they came to on their own, not something you tried to jam down their throats. When you push too hard, you get sales resistance – just like you got from me a few minutes ago.”
“But when it’s their idea,” said Angus, “they believe it. People are proud of their own ideas, and jurors are no different from anybody else.”
“All right,” said Beth, “so how do I do this?”
“There are lots of ways,” said Angus, “but one of the best is something I call ‘linking.’ You can use it in any part of the trial – opening statement, direct examination, cross-examination, or final argument.
“The secret is simple,” said Angus. “You do it by setting two things right next to each other, and the jury does the rest by putting them together for you. For example, say you’re cross-examining Marty Drewek, who was injured in a motorcycle accident. On direct examination, Drewek insisted he was only going 25 mph at the time of the accident. On cross-examination you are tempted to really slam him:
Q: You expect this jury to believeyou were driving a powerful motorcycle like that and were going only 25 mph?
A: Of course. It’s the truth.
“Any impact?” said Angus. “Not really. It sounds like the blustering kind of attack that usually gets ignored. But watch what happens when you link:
Q: Mr. Drewek, on April 6th – the day you got hurt – you were riding a brand-new Yamaha 1000 FSR Café racer Motorcycle?
A: That’s right.
Q: It has 139 horsepower?
A: Something like that.
Q: I don’t want you to guess, Mr. Drewek. Take a look at the specifications on this brochure. It describes your motorcycle?
A: Yes.
Q: 138 horsepower is correct?
A: Yes, that’s right.
Q: And it weighs 381 pounds?
A: Right.
Q: The bike you were riding will go 50 miles an hour in first gear?
A: Yeah.
Q: 90 miles an hour in second gear?
A: Yeah.
Q: Over 120 miles per hour in third?
A; Right.
Q; 145 miles per hour in fourth gear?
A; Yes.
Q: More than 175 miles per hour in fifth gear?
A: Sounds right.
Q: You say you were only going 25?
“Linking is particularly useful when you are attacking a witness with bias,” said Angus. “Bias is powerful stuff. It is never collateral – meaning that if you cross-examine a witness about his bias and he denies it, you can prove it with independent evidence.
“But while bias has power, it lacks focus. It goes to the witness’s credibility in general – not to any particular bit of testimony. So it is up to you to link the witness’s bias to the testimony you want to attack.
“Now notice something important,” said Angus. “When you put two pieces of evidence next to each other on cross-examination so the jury will link them together, it means you have to go over both of them on your cross.”
“But doesn’t that mean you may have to violate that ‘rule’ about no repeating your opponent’s direct on your cross?” said Beth.
“Of course,” said Angus. “But that doesn’t mean you have to repeat the entire direct examination so that the jury gets to hear it all a second time. When you take pieces from direct examination and set up the attack, do it your way.
“For example, say Marvin McKittrick claims your client, Karen Olson, entered into a supply contract with McKittrick Electronics Company.
“Karen Olson says they discussed the possibility, but never actually made an agreement.
“Now Jon Van Es is on the witness stand. One of the things he said on direct examination was that he saw Karen Olson and Marvin McKittrick ‘shake hands’ on a contract for the sale of electronic supplies. You decide that is where you want to use your bias points.
Q: You did not actually participate in the discussion?
A; That’s right. I was there, but Karen Olson and Marvin McKittrick did the talking.
Q: You were in the room waiting for Mr. McKittrick?
A: Yes.
Q: Brought a book with you to read while you waited.
A: Yeah.
Q: The Da Vinci Code by Dan Brown?
A; That’s right.
Q: Good book?
A: Oh, yeah.
Q: And twice during the discussion you went out to get coffee or go to the rest room?
A: That’s right.
Q: So you obviously didn’t hear everything?
A: Not everything.
Q: (In a puzzled tone) But you’re sure Ms.Olson and Mr. McKittrick made an agreement at that meeting?
A; That’s right.
Q: Mr. Van Es, you don’t happen to own any stock in McKittrick Electronics, do you?
A: What does that have to do with it?
Q: That’s going to be up to the jury, Mr. Van Es. Would you tell them whether you own any McKittrick stock, please?
“One last thing,” Angus said. “Don’t push too hard. You don’t want to be like the drunk at the political rally who keeps poking his elbow in your ribs to make sure you got the speaker’s point. The whole idea behind linking is to let the jury do part of the work.”
Beth Golden was practicing her final argument for the defense in a murder trial, and had asked some of us to critique her performance.
“Sincere,” I said. “Great eye contact. Excellent organization.”
“The time-line you did on the chalkboard was dynamite,” said Regis McCormick.
Angus paused a bit before he said anything. Finally, he said, “I agree with all that, Beth. It was polished – professional. You obviously have an excellent command of the facts, and you are comfortable doing a final argument. My problem is I found myself arguing with you, and I’ve been wondering why. I think I know.
“You were forcing it,” said Angus. “You were pushing too hard. You argued the logic of every inference just as far as it would go.”
“That’s bad?” said Beth. “I thought that’s what final argument was for – argument.”
“Of course,” said Angus. “But you didn’t involve the jury. All you did was tell them how to decide the case.”
“What do you mean, I didn’t involve the jury?” said Beth. “Everything I said was directed toward them. They know they are going to be deciding the fate of my client, and they know that I’m talking about the facts that bear on their decision. Nobody is more involved in what I have to say than the jury.”
Angus smiled. “I think,” he said, “I need to follow my own advice. Instead of trying to convince you with the force of my argument, I ought to show you what I’m talking about.
“Have you ever seen those annoying television commercials where one of the characters shows up with the wrong thing, or gets the name of the restaurant all wrong?” said Angus.
“Sure,” said Beth. “They do that all the time.”
“Why do you suppose?” said Angus.
“I don’t know,” said Beth, “to emphasize the right name?”
“More than that,” said Angus. “They want you to make the connection in your mind – before anyone else does.”
“I can see they want to do that,” said Beth, “but why? What’s the point?”
“They don’t want you to just be a passive observer,” said Angus. “They want you to participate. They want you to say the name to yourself before they do so you will remember it and think about it in the right circumstances.”
“But I’m not selling frozen meat loaf dinners or fast food three-dollar breakfasts,” said Beth.
“Exactly,” said Angus, “which is why you need to do more than the television advertisements. You need to present your arguments so they actively involve the thought processes of the jurors, so they put together what you have to say.
“You need to stir their minds so that they participate in your argument,” said Angus. “You want the jurors to reach the right conclusion – but you want it to be something they feel they came to on their own, not something you tried to jam down their throats. When you push too hard, you get sales resistance – just like you got from me a few minutes ago.”
“But when it’s their idea,” said Angus, “they believe it. People are proud of their own ideas, and jurors are no different from anybody else.”
“All right,” said Beth, “so how do I do this?”
“There are lots of ways,” said Angus, “but one of the best is something I call ‘linking.’ You can use it in any part of the trial – opening statement, direct examination, cross-examination, or final argument.
“The secret is simple,” said Angus. “You do it by setting two things right next to each other, and the jury does the rest by putting them together for you. For example, say you’re cross-examining Marty Drewek, who was injured in a motorcycle accident. On direct examination, Drewek insisted he was only going 25 mph at the time of the accident. On cross-examination you are tempted to really slam him:
Q: You expect this jury to believeyou were driving a powerful motorcycle like that and were going only 25 mph?
A: Of course. It’s the truth.
“Any impact?” said Angus. “Not really. It sounds like the blustering kind of attack that usually gets ignored. But watch what happens when you link:
Q: Mr. Drewek, on April 6th – the day you got hurt – you were riding a brand-new Yamaha 1000 FSR Café racer Motorcycle?
A: That’s right.
Q: It has 139 horsepower?
A: Something like that.
Q: I don’t want you to guess, Mr. Drewek. Take a look at the specifications on this brochure. It describes your motorcycle?
A: Yes.
Q: 138 horsepower is correct?
A: Yes, that’s right.
Q: And it weighs 381 pounds?
A: Right.
Q: The bike you were riding will go 50 miles an hour in first gear?
A: Yeah.
Q: 90 miles an hour in second gear?
A: Yeah.
Q: Over 120 miles per hour in third?
A; Right.
Q; 145 miles per hour in fourth gear?
A; Yes.
Q: More than 175 miles per hour in fifth gear?
A: Sounds right.
Q: You say you were only going 25?
“Linking is particularly useful when you are attacking a witness with bias,” said Angus. “Bias is powerful stuff. It is never collateral – meaning that if you cross-examine a witness about his bias and he denies it, you can prove it with independent evidence.
“But while bias has power, it lacks focus. It goes to the witness’s credibility in general – not to any particular bit of testimony. So it is up to you to link the witness’s bias to the testimony you want to attack.
“Now notice something important,” said Angus. “When you put two pieces of evidence next to each other on cross-examination so the jury will link them together, it means you have to go over both of them on your cross.”
“But doesn’t that mean you may have to violate that ‘rule’ about no repeating your opponent’s direct on your cross?” said Beth.
“Of course,” said Angus. “But that doesn’t mean you have to repeat the entire direct examination so that the jury gets to hear it all a second time. When you take pieces from direct examination and set up the attack, do it your way.
“For example, say Marvin McKittrick claims your client, Karen Olson, entered into a supply contract with McKittrick Electronics Company.
“Karen Olson says they discussed the possibility, but never actually made an agreement.
“Now Jon Van Es is on the witness stand. One of the things he said on direct examination was that he saw Karen Olson and Marvin McKittrick ‘shake hands’ on a contract for the sale of electronic supplies. You decide that is where you want to use your bias points.
Q: You did not actually participate in the discussion?
A; That’s right. I was there, but Karen Olson and Marvin McKittrick did the talking.
Q: You were in the room waiting for Mr. McKittrick?
A: Yes.
Q: Brought a book with you to read while you waited.
A: Yeah.
Q: The Da Vinci Code by Dan Brown?
A; That’s right.
Q: Good book?
A: Oh, yeah.
Q: And twice during the discussion you went out to get coffee or go to the rest room?
A: That’s right.
Q: So you obviously didn’t hear everything?
A: Not everything.
Q: (In a puzzled tone) But you’re sure Ms.Olson and Mr. McKittrick made an agreement at that meeting?
A; That’s right.
Q: Mr. Van Es, you don’t happen to own any stock in McKittrick Electronics, do you?
A: What does that have to do with it?
Q: That’s going to be up to the jury, Mr. Van Es. Would you tell them whether you own any McKittrick stock, please?
“One last thing,” Angus said. “Don’t push too hard. You don’t want to be like the drunk at the political rally who keeps poking his elbow in your ribs to make sure you got the speaker’s point. The whole idea behind linking is to let the jury do part of the work.”