The art of persuasion comes in many forms. It is the manner in which the trial lawyer chooses to present certain facts that will serve as the driving force behind a successful outcome. Since every aspect of the trial should be conducted with an eye toward summation—toward creating the most powerful argument that can be advanced—the trial lawyer must be acutely aware of how each part of the trial will affect the summation.
While it is important to focus on the affirmative facts that have been elicited during the trial to create a powerful argument on summation, it is equally important to focus on the “negatives,” or the absence of certain facts. Specifically, it is the failure of the opposing party to produce certain proof or call certain witnesses that often serves as a hammer and one of the most powerful means of exploiting the opposing party’s weaknesses. To illustrate this point, consider the following example: Assume that a plaintiff in a personal injury action suffered injuries to his neck and back. Prior to trial, the defense chose to have the plaintiff examined by both a neurologist and an orthopedist. However, at the time of trial, the defense chose not to call either of these expert witnesses. The plaintiff provided detailed testimony on direct examination, explaining that he had been examined by the defense neurologist and orthopedist. The plaintiff also testified as to the scope of those examinations.
