I am enjoying the Conrad Murray case, not because of its substance, but because it provides concrete examples which give me loads of opportunities to comment on. One reason I teach my law school class through mock trials is that I need concrete examples in order to teach the dynamics of a trial, human behavior, and how the rules work with them. This trial provides plenty of concrete!

This is the last in a series on opening argument appropriately called “The Last Minute.”

Let me start with two words: primacy and recency — the tendency to remember the first and last things we hear. Psychologists tell us, what we already know intuitively, that the beginning and ending are more likely to be remembered by an audience. What we hear first and what we hear last have the most impact. The first minute is important and so is the last minute. What must you do in the last minute? Repeat your themes. The themes that were highlighted in the first minute and repeated and fleshed out in the body of the argument, are now re-stated. Next ,create a short punchy summary of why you must win and then tie all the arguments together in a neat package. All designed to motivate the jury to see that your client is entitled to a verdict because fairness and justice is on your side. Be vivid and compelling while fashioning an argument with enough discretion to avoid an objection interrupting your flow. The argument has to be disguised as a “statement” to avoid judicial wrath. Part of the hypocrisy of the so-called rule, it has to be a statement.  Perhaps begin the end with words like this:

“What are we asking you to do?”

“All this evidence will prove….”

“So why are we here today?”

I have gone back to my TiVo and listened to the last minute of each opening again. I thought when starting this post I could effectively criticize them for not take advantage of the opportunity, and that is true with the defense. But Walgren, the prosecutor, actually performed the last minute quite well. It may have been his finest moment. The first minute of both were poor, but the last minute for Walgren was good. I think trial lawyers intuitively know the conclusion has to leave an impression, while they don’t concentrate enough on the beginning.

Before he got to the last minute, Walgren presented a list of his arguments. Of course this violated at least two rules: argument and rebutting the defense. He prefaced this series with the line: “Regardless what the defense says, there are certain facts.” Then he listed them. Right after that he swung into his final words:

“The evidence will remain unchanged that Conrad Murray figuratively and literally abandoned Michael Jackson on June 25th, 2009.

“He left this vulnerable man filled with Valium and Lorazapam and Propofol with no medical monitoring equipment. No necessary resuscitative equipment. He left him there, abandoned him, to fend for himself.  He violates not only every standard of care, but decency,  from one human being to another. Michael was in that state, in that bed, because of the drugs administered by Conrad Murray. That is why he was in that state, in that bed, when Conrad Murray walked out of that room to make phone calls, go to the restroom, whatever he may have done.

“Whatever theory the defense puts forward, whatever evidence the defense puts forward, it will be clear that Conrad Murray abandoned Michael when he needed help.

“It was Conrad Murray’s gross negligence.

“It was Conrad Murray’s unskilled hands.

“And his desire to obtain this lucrative contract of $150,000 a month that led Dr. Murray not only to abandon his patient, but to abandon all principles of medical care.

“Conrad Murray’s actions, Conrad Murray’s omissions to act, directly caused the death of Michael Jackson.

“And at the close of all the evidence in this case, after you have absorbed all the facts in this case and absorbed the law in this case, the people will ask you in no uncertain terms to return a verdict of guilty to the solitary charge of involuntary manslaughter based on the gross negligence of Conrad Murray. Thank you.”

After going back over the tape, and typing out the words, I must admit this is a superior conclusion to the opening argument. He managed to hit the best of his themes and summarize the case he intends to prove. And he certainly used emotions to motivate the jury.

Here is the last minute of the defense opening:

“What you are going to learn today, the coroner did not test for everything, and the prosecution only present their case. But we tested the stomach contents for Lorazapam. It was four times greater than in the blood. The only way into the stomach is that he swallowed. The evidence will tell you.

“He wanted to sleep. Couldn’t sleep. Needed to sleep. Needed to succeed. And his doctor would not give him Propofol, the drug that he wanted. That he wanted so. And Michael Jackson swallowed while he was up and about in other rooms and in the bathroom up to eight pills on his own. Without telling his doctor, without permission from his doctor. And when Dr. Murray gave him the 25 milligrams and left the room, Michael Jackson self-administered an additional dose of Propofol and it killed him and it killed him like that. And there was no way to save him.

“We have some pictures of his children and you have seen some pictures of him on the bright and vivacious on the stage and compared how he looked when he died. This is an emotional case. We all have a vested interest in Michael Jackson. If you are my age you do.”  [We have a “vested interest” in Michael Jackson? How ridiculous. We have no investment in the spoiled rich Jacksons of this world. Instead his theme should have been that Jackson not Murray was reckless. Jackson dangled his child off a balcony, Jackson was an addict, Jackson wasted his fortune,  Jackson was too close to children. So it is easy to see Jackson would also recklessly take propofol. Why be so deferential to Michael Jackson? After all he is defending Murray not Jackson.]

“But the evidence is, the whole thing is tragic, but the evidence is not going to show that Dr. Murray did it, and at the end we are going to ask you to acquit him. Dr. Murray is not a perfect man; he is an imperfect man, like all of us, that I grant you, but in this criminal court we believe he is not guilty.”  [Imperfect? You mean like a bad doctor who failed to watch his patient? And in this criminal court he is not guilty? But he is guilty in civil? Or morally? He seems to be saying he is guilty somewhere. Sorry but this closing doesn’t work for me.]

I replayed the tape several times to get the words as accurate as I could because the argument, if you want to call it that, is disjointed, meandering and illogical. I am not sure what he was saying. There is no structure to it. No punch. No theme. It is as if he made it up while he was talking. Let’s face reality, we are all morons off the top of our heads. This is why every performance has to be prepared and practiced. It certainly didn’t sound like any preparation went into this one. It wasn’t rehearsed, it wasn’t practiced and it is a lost opportunity.

Walgren played it better than Chernoff. He treated the opening as it should be — an argument, not some neutral statement of fact. He pushed the envelope. It was more final argument than opening. And thus it had more impact and persuasion. A lesson for all of us; argument always works better.

I have one question for the defense: How could this happen? It is the biggest trial you will ever have. It is on national television. Why not rise to the occasion? Barack Obama was an unknown state senator when he gave a 17-minute keynote speech at the Democratic National Convention, and it made him famous throughout the world. He understands the necessity of preparation and practice.

Another point: Our mothers drummed in our heads to be courteous and use words like please and thank you but, with all due deference to our moms, “Thank you” doesn’t make it as a conclusion to a speech. It needs a climax, not a platitude. It is a time for creative thinking rather than a perfunctory afterthought.

Of the 217 speeches in William Safire’s anthology “Lend Me Your Ears: Great Speeches in History,” it is no coincidence that only seven end with “Thank you.” For example Patrick Henry:

“Is life so dear or peace so sweet as to be purchased at the price of chains and slavery. Forbid it, Almighty God! I know not what course others may take but as for me give me liberty or give me death.”

And Winston Churchill:

“Let us therefore brace ourselves to our duty and so bear ourselves that if the British Commonwealth and Empire lasts for thousands of years, men will say: ‘This was their finest hour.’”

These ending have a little more punch than a flat “thank you.”