Moe Levine (1908-1974) is one of the greatest trial lawyers of all time. Moe’s ideas are timeless and are more relevant today than ever. According to Trial Guides, only two videos of Moe Levine are known to exist, and The Summation (filmed in 1966) has been secretly handed around by the nation’s leading trial lawyers on old VHS tapes for decades. In The Summation, Moe talks about the philosophical approach to closing argument in personal injury cases. He addresses how to talk with the jury about both liability and damages. The Summation beautifully blends inspiration with practical advice and you will find yourself listening to the audio CD in your car and watching the DVD over and over again. My review below covers just a few of the concepts Moe talks about in The Summation.

Moe begins with the idea that advocacy is an art, not a science, and he gives his reflections on the nature of advocacy: it’s purposes, it’s goals, and some of the methods of expressing and fulfilling the art.

A Meaningful Verdict – The Jury as the Voice of the Conscience of the Community:

In considering the nature of a jury, Moe suggests understanding the philosophy and motivations of the jury.  Lawyers should begin with the presumption that the jury is not there willingly. Forget telling them what a great honor it is for them to serve as a juror because for them it is not. They have been taken from their lives, taken from their work, taken from their families, and forced to come to a courtroom to listen to the problems with which they are relatively unconcerned. Jurors would prefer not to be involved in this type of nonsense. So Moe teaches us to presume that the very least a jury may wish will be that the verdict which they will eventually render will have been a meaningful verdict.

What is a meaningful verdict? For Moe, a meaningful verdict is a verdict in which the juror, when he is allowed to talk about the case after he has decided it, can go back home and say to his wife, children, neighbors, ‘Neighbors, I was just on a case. These were the facts. This is the decision I made,’ with the expectation that the decision he rendered upon the facts and arguments that he will present will be acceptable to his community.

So how do we talk with the jury about finding a meaningful verdict? One of the most powerful ideas Moe presents in The Summation is that the jury is “the voice of the conscience of the community.” An example Moe provides to illustrate this concept is a slip and fall case, and he would say to the jury in closing argument: “You tell all the people in this town who run stores of this kind what you expect their conduct to be. Because you, the voices of the conscience of this community, will determine what the standard is.”

Can you see what Moe has done? He allows the jury to become personally involved in the case. He empowers the jury to make a decision on behalf of the community. And he tells the jury that they have the power to influence the community through its verdict. The jury is subjectively involved because their decision will have an impact on the community in which they live. Moe goes on to explain that when the jury can express the conscience of the community then indeed they will have expressed a meaningful verdict, which is a verdict they can go home and report upon with pride.

The necessity of reframing issues has exploded in recent years with the progress of concepts like “Rules of the Road” and “Reptile” style of trial advocacy. An oversimplification of the technique is to frame the issues in your case so each juror feels personally involved with enforcing the community’s rules the defendant violated. As you will see in The Summation, Moe was reframing issues for the jury over 40 years ago.

It’s Not What They Take From You, It’s What They Leave You:

Moe’s approaches to damages are as brilliant and timeless as his ideas on liability. He explains what he feels is the most important concept in damages: “It isn’t what they take from you that constitutes damages, it’s what they leave you.” Moe’s idea is that rather than calculate what the plaintiff has lost, the analysis focuses on where the plaintiff is left after his injury. Moe provides a number of examples to illustrate. He asks, “Suppose you had a million dollars, and I took five hundred thousand dollars away. I would have taken a great deal of money from you but I would have left you with a half million dollars. And when you think of it that isn’t too bad and you are not left really resource-less. But suppose you had one dollar, and I took the dollar away from you. You didn’t have very much, but I took it all. I left you with nothing.” In another example, he states that “in the darkest night the smallest candle makes the darkness tolerable. You blow out the candle, and you are left with the abysmal fear of blackness: no light left. You have taken it all.”

Moe teaches that it is not necessary to make your client look worse or more damaged than he really is through the use of excessive stretching of before and after. Instead, consider showing that before the injury causing incident, your client didn’t have much, and focus on what your client is left with, because when you don’t have much, losing even a little means a lot.

Throughout The Summation, Moe goes in and out of delivering a closing argument as if the audience is the jury. Then he explains the concepts and nuances of the arguments. This presentation format is helpful because the listener gets to hear how the arguments are delivered, with the pauses, pace, and tone that are essential for communicating these messages.

The Summation is both inspiring and practical. After listening, I think you will find yourself excited about the opportunities your jury trials provide to make our community a better place. I believe Moe will motivate you to think in a new way, a better way, about how you will present your case to the jury.

Protecting the community. Enforcing safety rules. Holding wrongdoers accountable. Fighting for justice: the life of a personal injury lawyer.

Accepting the responsibility of helping injured people is gratifying: we uphold the values of the community and make a difference in people’s lives.

What We Are up Against

In today’s economic and legal climate, obtaining fair compensation for people injured by the wrongful conduct of others requires many skills not taught in law school. Personal injury lawyers need to understand how and why ordinary people make decisions. For decades, citizens (our jury pool) have been “tainted” by a media blitz that has created a bias against injured people who are forced to sue because the insurance company won’t pay fair compensation.

Insurance companies are tight-fisted with settlement money. The latest tactic by big insurance companies is to force injured people to either accept far less than fair compensation or file a lawsuit. Thus, personal injury lawyers must prepare every part of the case with the mindset of going to trial. Because personal injury attorneys go to trial often, they must be passionate about trial practice.

Personal injury lawyers face a formidable opponent. Insurance company lawyers are highly skilled. They are more experienced and better financed by rich and powerful corporations. They have one job: to defeat us. Thus, personal injury lawyers must never underestimate the forces we are up against. This fight is a battle of David v. Goliath. But the most powerful army does not always win.

Getting to Know Your Clients

Representing injured people at trial requires skillful advocacy. People put their life and well-being in your hands. It is up to you, as their lawyer, to obtain money damages for medical expenses, lost earnings, and the critically important “human” damages also known as general damages. As a trial lawyer, your job is to show 12 members of the jury that the defendant must be held accountable and that your client is entitled to a certain amount of compensation.

Successful personal injury lawyers understand the emotional content of their clients’ injuries. They know how to humanize their clients to the jury. The story of the case is not just about a person who was injured in a car crash and suffered damages. When our clients suffer a physical injury at the hands of another person, there is more to the injury than just physical pain. This understanding begins with learning about the client and developing a relationship based on security and trust. This allows the client to share his feelings and experiences with the jury in a way that the jury can relate to.

Yes, we are lawyers, but we are people first. We are real people, with real feelings and real emotions, and we represent ordinary folks who have suffered a traumatic event in their lives. Law school taught us that reasoning and logic win cases. But people make decisions first based on how they feel, and then rationalize their decision with logic, like building a house and then propping it up on stilts.

Before we meet with our clients, we should reflect on the larger sociological issues involved. We need to understand that societal norms create barriers to communication. For example, American males are conditioned from a young age to suppress their feelings and shut down their emotions. Asking a male client how the injury makes him “feel” will likely elicit a non-responsive answer because many men feel uncomfortable expressing their feelings.

We also need to be sensitive to cultural issues. I have more success connecting on a gut level with ethnically diverse clients when I’m aware of the cultural issues at work. Only then am I able to break down walls and get my clients to express their true feelings about how their injuries have affected their lives. Everyone is uncomfortable on some level expressing their feelings. Do not expect clients to open up on the first meeting. Rather, this process takes time. Expect to spend several meetings, over several hours, with your clients, especially clients of diverse backgrounds, before they open up and fully express how their injuries have impacted their lives.

Techniques to Connect on a Deeper Level

Lawyers should learn interviewing techniques based on concepts employed by psychologists, psychotherapists, and psychodramatists. Meet your clients at their home. It is not enough to merely obtain the facts from your client as you sit in your office asking questions from across your desk. People are more comfortable expressing their feelings in a safe, comfortable place. Your client’s living room is a perfect place to have a conversation. Shed the attorney façade. Leave your suit and tie at home. Look your client in the eye. Be real. Be sincere. When your client is done talking, let silence fill the room and feel the connection.

Learn to use open-ended questions. Open-ended questions require more than a yes or no answer and generally begin with, “who, what, when, where, why, or how.” If your question doesn’t start with one of these words, it’s probably not an open-ended question. Use follow-up statements like, “Tell me more about that,” to keep the person talking.

An effective technique to get your client to open up is “psychodrama.” This technique involves reenacting scenes from your client’s life. It is like a short, spontaneous play. Rather than having your client tell you what happened, have your client show you. This gets your client into the present tense by reliving the experience, making his emotions more accessible. When this occurs, we can get to the heart of the emotions experienced by our client.

We should invest our time meeting our clients’ family and friends, accompanying clients on activities, and experiencing how the injuries impact their lives. We don’t learn our case by spending time in the office pouring over transcripts and medical records. We learn our case by understanding how the client experiences life with his injury, and this can only be accomplished by spending time with our clients outside the office. We don’t know our client’s story until we’ve lived it and felt it within the deepest place of our gut. This is the place where we learn the details that make our client human and the stories that resonate with a jury.

Credibility is necessary to be a successful trial lawyer. Credibility originates with feelings. To credibly tell a jury about our client’s injuries and the impact that these injuries have on his life, we must feel what our clients feel. We must experience the emotions that our clients experience. Only then are we able to tell our client’s story to a jury in a way that will move them to award a verdict that fairly compensates the client.