By Dr. Ken Broda Bahm –
The popular image of legal argument is most often a polished and professional presentation, made from a podium in front of a jury or judge. To those of us court watchers who read transcripts, it is clear that the biggest roll-up-your-sleeves-and-argue moments are often at sidebar – those conferences conducted with counsel huddled awkwardly by the bench and speaking either in hushed tones or over the white noise that is supposed to prevent a jury from listening in.
Due to their urgency, their often high stakes, the presumed absence of the jury’s attention, and the fact that the judge can rule at any time during these arguments, lawyers at sidebar can sometimes let their decorum slip and limit their persuasive effectiveness in the process. In this post, I’ll be providing a few tips on this unique species of argument, sharing some related research, and picking apart one sidebar argument from the on-going Casey Anthony trial.
Here are a few thoughts to keep in mind at sidebar:
1. Use Discretion. In the famed OJ Simpson trial, there were approximately 600 sidebars. Many of those involved critical evidentiary issues that demanded immediate resolution. But many others, no doubt, involved repetitive attempts to re-argue settled issues, or transparent efforts to interfere with the “momentum” of the other side. That tries the patience of both judge and jury. Because sidebar is an interruption for the ultimate fact finders on the jury, you need to pick your moments. Because sidebar is viewed, and quite often heard, by jurors, you need to guard your reactions. Angry facial expression, raised voices, and animated gestures don’t escape the attention of a jury that has nothing better to do at the moment than to try to figure out what is going on and who is gaining or losing an advantage. Jurors’ overall impression of which side is winning and losing can be shaped by watching sidebar, so take care to project calm, confidence, and composure, even when your judge is just now telling you that your most critical evidence won’t be coming in.
2. Use Enthymemes. It is is difficult word to say, but an important concept to understand. Formally, an enthymeme is often considered a syllogism (“I smell smoke, where there is smoke there is fire, so there is a fire”) with one of its premises missing, and therefore filled-in by the audience (“I smell smoke — there is a fire”). More generally, to reason with enthymemes is to base arguments around premises you know your audience and adversaries already accept – to wrap your reasons around theirs. That differs from what I’d call “oppositional argument” focusing only on difference (“That is wrong, because 1, 2, 3…”), by instead building itself around existing beliefs (“You agree that A is true, and one implication of that is…”). In sidebar, reasoning with enthymemes means beginning your argument with an acceptance of some part of your adversary’s or (even better) your judge’s reasoning.
3. Use Informality and Humor. One practical way of reasoning with adversaries and judge is through informal talk. Philip Gaines (2002) studied the role of this informal talk, “including personal insults, joking, threats and complements,” and found attorneys tended to use these moments strategically in order to gain a conversational advantage over an adversary or to share solidarity with a judge.
It is understood sometimes in sidebar you are arguing not to immediately persuade, but instead to preserve an issue for appeal. In that case, I would add a fourth: Use as little time as possible if all you are doing is making a record. There is no use aggravating your judge, your adversary, and possibly your jury if all you want to do is to state something for the record.
To take an applied look at some of these principles in action, lets consider one sidebar transcript from the on-going Casey Anthony trial. The defense attorney, Mr. Mason, is reacting to the judge’s comment setting the stage for the upcoming defense case.
(The following conference was held at the bench)
Mr. Mason: I know you’re trying to be nice and I appreciate that, but we don’t have any obligation to put on any evidence at all and you just told the jurors that you expect us to be putting on evidence. And we may or may not. And we don’t have to. We would request some kind of curative thing, just a reminder, something to tell them that the Defense has no obligation to put on anything. Mr. Ashton agrees with me.
Okay, to start with, that was a little more confrontational than necessary. The “you’re trying to be nice” part might sound like a concession, but framing it as a curative rather than as a supplement to what the judge has already said invites a defensive reaction from the judge.
The Court: Then y’all lied to me.
Mr. Mason: No.
The Court: Yes, the hell you did. Because y’all have sat up here and told me that you were going to do that.
And there is the defensive reaction from the judge. This is the attorney’s chance to reframe the discussion: “It isn’t about whether we will or won’t put in evidence. You instructed the jury correctly on the fact that we will be putting on evidence. We just want to make sure it is clear we are putting in evidence based on our choice, not because the defense has an obligation.” Instead of that clarification, however, the argument continues based on the judge’s impression that further instruction is only necessary if the defense does not put in evidence.
Mr. Mason: The point is, we don’t have any burden.
The Court: And then if you don’t do that, then I will fall on the sword and do it. But you have sit up here and repeatedly told me, time and time again —
Mr. Mason: Judge, we intend to put on —
The Court: Well, then if we get to that point where you do not do that, Mr. Mason, then I will fall on the sword and —
Mr. Mason: I can tell you that we are going to do it. I’m just simply saying, for the record, I would like for you to tell the jury —
The Court: I’m not.
Mr. Mason: — the Defense does not have an obligation —
The Court: I’m not. I am not at this point.
Mr. Mason: Okay.
The Court: Because all you had to do was say it. And you have repeatedly told me — not you, but your colleague, that you were going to put on evidence.
Mr. Mason: And I’m reaffirming that. We are going to put on evidence. I’m telling you, unequivocally, we are. Just as a matter — showing a record as if we have an obligation to put on a defense. That’s all I’m asking you to do, is an instruction that we do not have to put on a defense. That’s all I’m saying.
The Court: If you don’t put on any evidence, then I will do that.
Mr. Mason: Okay. Well, we are, so don’t worry about it. We are, very clearly.
The Court: I will take it that I cannot trust one thing that your side says anymore.
Obviously tensions are high, and it isn’t fair to pick this as a representative moment. Clearly, this sidebar could have gone better for judge and defense with the application of a few principles.
1. Discretion: Because defense is indeed putting in evidence, this may not have been a fight worth picking.
2. Enthymeme: If defense had acknowledged at the start the correctness of the judge’s statement that the defense would be putting in evidence, they could have avoided a long sidetrack, and possibly gained a supplemental instruction.
3. Informality and humor: If the exchange had included a lighter human moment (e.g., “your honor, you and I and the entire blogging and tweeting world knows we are going to put in evidence…”), then it might have ended on less of a harsh note.
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Related Posts:
- Time Your Arguments to the Judge’s Lunch Breaks (and Adapt to All Decision Makers’ “Cognitive Load”)
- Avoid Lockout: Address Judges and Arbitrators Persuasively
- When Faced With A “Hot Bench,” Keep Your Cool
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Gaines, P. (2002). Negotiating power at the bench: informal talk in sidebar sessions Forensic Linguistics, 9(2), 213-234 DOI: 10.1558/sll.2002.9.2.213
Photo Credit: AnnieGreenSprings, Flickr Creative Commons