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1. Empathy
III. Empathy for Your Client
– As schmaltzy as this sounds, caring is at the core
of every case.
– The first thing to ask yourself is, “do I really care?”
– We have to find the humanity in our client before
we can ask the jurors to see it.
– This is the first step in changing the client from a
defendant to a person.

2. Empathy
– The acting profession is a humanizing profession.
I’m forced by the very nature of my job to step
into someone else’s shoes, to wander around in
someone else’s ideas, to think differently. It is that
much harder not to have empathy for other
people and their circumstances even when they
are very different from my own.

3. Empathy
– Warning: Caring is not for the faint of heart. If you
really care, you open yourself up to a lot of risks,
none more heart-wrenching than watching the
person you care about being dragged out of the
courtroom in chains and shackles if the jury finds
him guilty. In essence, “the bucks stops here” with
you accepting full responsibility for the fate of your
client.

4. Empathy
– This can be accomplished without so much as
uttering a word.
– We can demonstrate that we care for our client by
how we interact with him in the courtroom, by
where we stand in relation to him, by touching him,
or by making eye contact with him at various points
during the trial.

5. Empathy
• Tips
– # 1: Don’t refer to Johnny as “my client” or “the
defendant” – you’ll play right into your adversary’s hands.
Not only are these labels un-endearing, but they are cold
and dehumanizing. From the moment your client entered
this world, he was given a name – the one that is written
on his birth certificate. Use that name. It’s easier for the
jury to convict a “client” or a “defendant” than it is to
convict “John.” The jury will hear John referred to as the
“defendant” continuously throughout the trial by the judge
and the prosecutor.

6. Empathy
– As a colleague once said, if the jury has a question
during deliberations, such as a request for a “read
back” of testimony, you can gauge how well you
humanized “John” by how they refer to him in
their note to the judge:
• “We’d like a read back of the defendant’s testimony
from direct examination.”
vs.
• “We’d like a read back of John’s testimony from direct
examination.”

7. Empathy
– Tip # 2: Show those hands! Studies show that
when a person is sitting down with his hands lying
in his lap underneath the table, people think that
he has something to hide. As a result, they don’t
trust him.

8. Empathy
– Tip # 3: Huddle.

9. Empathy
– Don’t be afraid to get close! As subtle as it might
be, the jury is acutely aware of everything going
on in the courtroom – especially how you interact
with your client.

10. Empathy
– Tip # 4: Find the emotional essence of the case by
making the case personal to you. Learn to work
from private places and from circumstances that
are emotionally loaded. Begin by asking yourself
the question, “What is a genuinely stimulating
circumstance that has deep meaning to me?” This
is how actors prepare for a scene – by coming in
from a strong situation, which is the result of
something that just happened to them. This gives
them a springboard for a full preparation.

11. Empathy
– Preparation is the device that permits actors to
start their scenes in a condition of emotional
aliveness. Preparation lasts only for the first
moment of the scene, and then you never know
what’s going to happen. The idea is to tap into
something that is both personal and private. The
more specific you can get the better.

12. Empathy
– As an actor, I’ve learned that when it comes to
emotional preparation, how you give yourself
something is half the battle. Let me give you an
example. Suppose that I am in a scene where I was
just told that I had been selected by a committee to
be the head of the National Security Council. For the
character, this is what he has aspired to become his
entire life – it is his dream come true. For me as the
actor, being named “head of the National Security
Council” doesn’t mean a thing. In other words, I
cannot connect literally to the scene.

13. Empathy
– However, I can relate to the emotions that I would
feel if my own dream came true: joy, happiness,
and elation. For me, it would be like proposing to
the love of my life in front of the world’s most
recognized symbol of love (the Eiffel Tower) with a
positive result! I’ve now captured the emotional
essence of the scene by tapping into what it
would feel like to be “king of the world,” the
dominant emotion felt by the character after
hearing this exciting news. I’ve been brought to
life by something personal!

14. Empathy
– Even though the imaginary circumstances that I
created are a far cry from the actual circumstances of
the play – the fact remains that success is success and
failure is failure. In other words, the emotion is the
same because every human being has experienced it
before. Therefore, the audience will attach what they
see to what’s really going on in the scene, even
though I was brought to life by something personal.
My joy, happiness, and laughter will be perceived by
the audience as a man who is on “cloud nine” because
he has reached the pinnacle of his profession.

15. Empathy
– In acting, we refer to this as a particularization or
as an “as if.”
– When we come up against a text that’s cold to us
which doesn’t mean a thing because the
circumstances are foreign to us, we don’t curse
the darkness and think of the text as “being in the
way.” Instead, we light a candle.

16. Empathy
– We view these words as being the exact words
that we need and imagine a situation that would
bring us personally to the emotional place that we
need to be in for the sake of the scene.

17. Empathy
– As actors, we are taught to find in ourselves that
element which belongs only to us and to no one
else, which is stimulating for us and for no one
else.
– And the source of where we find that inner life is
not necessarily related to the needs of the scene.

18. Empathy
– Catch yourself in real life. You’re constantly talking
“as if.” When my boss told me that he wanted to
see me in his office, it was as if my heart stopped.
It was as if I felt myself breaking into a cold sweat.

19. Empathy
– Here’s how this applies in the courtroom. I like to
ask, “What if?” questions. Ask yourself the
question, “What is that element which belongs
only to me and to no one else, which is
stimulating for me and for no one else?”

20. Empathy
– For example, “What if instead of defending John
Doe on charges of aggravated assault I am now
defending my own brother against the same
charges?” By substituting someone from my life
who I care deeply about for my client, the stakes
become higher and the case takes on an entirely
new meaning.

21. Empathy
– Tip # 5: Stay present! Don’t allow your mind to
wander. Place a demand on yourself to put your
full attention on the witnesses. The jury is always
watching. Their tentacles are always out feeling
and probing, sending signals to the brain just as
when we meet someone for the first time. This
happens instantaneously and involuntarily, just
like breathing.

22. Empathy
– There is a tendency sometimes in court to “zone
out” when it’s not your turn. This is dangerous.
For example, when your adversary has been up on
his feet for nearly an hour questioning a witness.
Believe it or not, this may be the single-most time
during trial when the jury’s attention is most on
you. Why? The jury may be just as bored as you
are and there eyes are beginning to roam and
wander around the room. Where do they fall? On
you and your client.

23. Empathy
– The jury can immediately detect whether you are
comfortable or uncomfortable around your client.
If there is a gap as large as the Grand Canyon
between your chair and John’s chair, the jury will
sense that you’re cautious around him or worse
yet, that you are afraid of him. There minds will
turn to what’s going on underneath the surface: Is
John a ticking time bomb? Is John going to snap?
Does John have a hair-trigger temper? If you’re
not comfortable around John, how can you expect
the jury to feel comfortable with acquitting him?

24. Empathy
– Zoning out in the courtroom is analogous to an
actor in a scene who only comes alive when it’s his
turn to speak. They are the ones who merely wait
for their cue so that they can deliver their line
exactly as they rehearsed it. They might as well
have been in an isolation chamber because had
they been listening, they would have responded –
albeit nonverbally – to more than a hundred
different impulses (i.e., pinches) that washed over
them during that time.

25. Empathy
– Tip # 6: Robert Peppin, a faculty member at NCDC,
often turns to his client to ask questions like,
“there was only you and five officers in that room,
isn’t that right Ricky?”

26. Empathy
– Tip # 7: Beware of requesting a curative
instruction!

27. Empathy
– Background: Before a jury begins deliberations,
the judge will give instructions about the evidence
of the case. For a fair trial, the court must
sometimes limit the jury’s consideration of a fact
or evidence. This is done through a limiting
instruction. Specifically, it tells the jury to
disregard evidence completely or just for a
specific fact.

28. Empathy
– Limiting instructions are given when the jury sees
or hears evidence that might have a prejudicial
impact on their decision, including:
• Explaining a codefendant’s absence from trial;
• Evidence of a defendant’s other crimes;
• Admitting evidence against one defendant but not any
codefendants.

29. Empathy
– Limiting instructions are necessary because a jury
typically doesn’t know what is or isn’t the proper
way to evaluate or use evidence. The burden of
requesting such an instruction is on the party who
wants it.

30. Empathy
– Curative instructions are thought to cure any
damage caused by prosecutorial misconduct,
inappropriate argument or improperly offered
evidence.
– They allegedly “safeguard” against the risk of
prejudice in the form of jury confusion or spillover
evidence. For example, if evidence of a
defendant’s other crimes is improperly offered, a
curative instruction is used to “remedy” the
situation.

31. Empathy
– My opinion is that some errors are so serious that
they can’t be fixed. For example, a prosecutor’s
comment on a defendant’s failure to testify and
improper vouching for a prosecution witness are
too prejudicial for a curative instruction to fix.
– In such circumstances, I recommend objecting,
requesting a sidebar, and asking the judge to
excuse the witness and the jury. Then argue for a
mistrial.

32. Empathy
– Another shortcoming of curative instructions
comes down to common sense. Common sense
dictates that a curative instruction accomplishes
nothing more than drawing the jury’s attention to
the 800-pound gorilla in the room. This merely
emphasizes and highlights for a second time what
otherwise might have been ignored the first time
just in case the jury was daydreaming or wasn’t
paying enough attention to hear it. Be careful!

33. Empathy
• Why is caring essential? If you don’t care, how
can you ask a jury to care? As Gerry Spence
puts it, it’s like saying to the jury, “I want you
to do what I can’t do myself.”
• Gerry Spence uses a syllogism to demonstrate
this absurdity: “It’s like a doctor who doesn’t
care if his patient gets well and who has no
other interest than to collect his fee. Can that
doctor heal?”

34. Empathy
• Provocative question: “How does one care for
someone who has committed a heinous act?”
– “How can you care for someone who is accused of
raping a little girl and killing her?”
– “How can you care for a serial killer?”
– We’ve all been been ambushed by this question at
some point in our careers.

35. Empathy
• Ten years of being a defense attorney has helped
me to reflect on this question:
– Too often the person that is before the jury is the first
victim.
– Of course, a crime has been committed and there is a
victim of that crime. But what about the first victim –
the defendant, the person for whom you’re
defending? Was he the victim of a mother who didn’t
care or a father who abandoned him? Was he raped
and/or abused as a child?

36. Empathy
– A twist of fate could have changed his
circumstances dramatically. For example, had he
been raised by a loving and nurturing family that
was determined to see him succeed, would he
have dropped out of school, pledged his allegiance
to a gang, and turned to a life of crime? Or, would
he have gone to college and become a successful
businessman, doctor, or lawyer?

37. Empathy
– Are we condemning this person for what he did or
because of the cards that he has been dealt in
life?

38. Empathy
• Gerry Spence uses a powerful metaphor:
– You can take a little sweet wiggly tailed Spaniard pup
and put the pup in a cage with bars and never pet the
pup, and never love the pup.
– This little pup who loves you and wiggles its tail and
wants to be petted and accepted, you can stick it with
sticks and refuse to feed it when it is hungry. You can
put it in with other vicious dogs.

39. Empathy
– And one day you can stick your finger in that cage
and the pup will bite you – that sweet, gentle,
innocent puppy.
– Should we kill the pup? He’s only entitled to one
dog bite and he has bitten twice, so we should kill
him.

40. Empathy
• Keys for Caring
– Understand who your client is and know his
history. Where has he come from? What has he
done? What has he endured? What formed this
“little puppy” into the person he is today?