It is impossible to avoid getting emotionally involved and passionate in the course of presenting a client’s case that you believe in. This is a good thing. Belief in a client’s case is critical if a lawyer is to present the case convincingly. Passion about the outcome leads to that extra bit of preparation or thought, that may make the difference.
On the other hand, this can go too far and an obvious trap, when the Judge does not seem swayed by argument, is to exaggerate or overstate the facts or strength of the argument. The temptation to do this must be resisted. A critical advantage is gained by the lawyer who has the Judge’s trust that they can be relied upon to accurately assist the court by pointing out the true strengths and weaknesses of the evidence.
It doesn’t seem that this view was held by a lawyer for the unfortunate Mr. Whittenburg, presenting a case in the US, in Oklahoma. The US Court of Appeal concluded:
"We are compelled to reverse and remand for a new trial because of pervasive and improper remarks by Mr. Whittenburg’s counsel in closing argument to the jury. Counsel spent the bulk of his argument placing before the jury fictitious admissions never uttered by defendants and launching vituperative and unprovoked attacks on defendants and their counsel."
Not sure what "vituperative" is, but guess its not a good thing….
Thanks to John Day, who’s blog is always worth a read to learn about this area of practice, over the Pacific for this report.