The art of closing arguments

ART OF THE TRIAL

The trial is over. All witnesses have finished their testimony. The trial exhibits have either been received into evidence or never will be admitted. The trial court has reviewed with counsel the jury instructions. The jury is assembled in the box.

The trial judge turns to you, telling the jury that it will first hear from plaintiff's counsel, in closing argument. You stand, turn to the jury, and...

Clearly, this is not the time to start thinking about the form and substance of your closing argument. You have doubtlessly studied the subject before that day in court. You have researched the subject, and probably run through the argument with friends -- or at least to yourself during the long commutes to the courthouse during the trial. Depending on the size of the case and the anxiety level of your client, you have likely presented the closing argument to mock juries to assess how a jury will respond to your key points.

I have tried approximately 50 cases in federal and state court, as a federal prosecutor, a criminal defense counsel, as well as civil cases on both the plaintiff and defense side. There is no "one size fits all" formula for a presenting an effective closing argument. But, there are a common number of practice tips that an attorney should keep in mind in designing and presenting an effective closing argument.

The First Step

Before the closing arguments begin, the trial judge will ask each side if it rests, signaling that the evidence is now closed. No matter how well the case has gone, I answer "Not yet, your Honor" until I have had a chance to check with my trial team and with the court clerk as to what exhibits have been received into evidence. You do not want to start the argument only to discover that one of your key exhibits has not been received into evidence. If it is not in evidence, the jury will not be able to view that document. Similarly, you want to check that other documents used in trial have not been mistakenly been received into evidence and will now improperly be sent into the jury room for the deliberation.

The Procedure

The standard practice is for the plaintiff to go first with the closing, followed by the defense, with the plaintiff reserving the right to present a rebuttal argument. The common practice is for the trial court to set a time limit on each side.

It is important to keep the time limits in mind in planning and delivering the closing argument. You do not want to spend time in your closing argument on less important testimony or witnesses, with the risk that you will be forced to rush through your best arguments in the last few minutes of closing. Worse, you do not want the court to tell you, just as you are starting to warm up, that you have five minutes to wrap it up. Worse yet, you really don't want to have the court tell you to stop -- which will tell the jury that you have run afoul of the court's orders.

How do you avoid this problem? Stay away from lame, lengthy statements to the jury at the beginning of your argument in which you thank the jury for paying attention to the evidence or for their service as jurors. Get to the point of your argument within the first minute of your closing.

Content of the Closing Argument

The closing argument is your first chance to explain to the jury why your client deserves their verdict. Jurors really want to "get it right," and your description of the evidence should tell them why the evidence entitles you to their verdict.

You are "selling" your case to the jury. So, stop and consider the types of sales techniques that you personally like and those that you dislike. We as consumers want to trust the person who is making the sales presentation. If we trust the salesperson, we are likely to given that person the benefit of the doubt on matters. If we do not trust that salesperson, we are likely to tune out what the person is selling, regardless of the merit or value of what is presented.

How does that apply to you as you present your closing argument? At a minimum, you need to be true to the record presented at trial, avoiding misstatement of evidence or mischaracterizing testimony. Beyond that, consider making concessions on points that are not really in dispute, especially if those points will not effect the jury's verdict.

A number of years ago, I tried a plaintiff's civil case in state court. Defense counsel spent much time in court establishing that the plaintiff was a greedy, unpleasant and manipulative person. Unfortunately, the defense had a lot of evidence to work with in making that characterization. Rather than spending time and effort arguing that the plaintiff was really not a "bad guy," I conceded that he was a tough person to like, but added that likeability was neither an element of the causes of action at issue nor a defense to our claims.

Organizing Your Closing Argument

Meaningful Beginning

When you stand up to deliver your closing argument, you will be addressing a group of people who have been sitting in a courtroom and listening to evidence for days, possibly weeks and potentially months. That group of people -- the jury -- does not want to be lectured to nor does it want to sit through a recitation of the evidence which it has just heard throughout the trial. The jury expects you to explain why your client deserves its verdict.

Your closing argument should start with a simple statement as to why your client should win: XXX company had invested time and money developing a life-saving pharmaceutical. But the defendant YYY used its market power to keep that new life-saving drug off the market. As a result of YYY's business practices, thousands of people were deprived access to this life-saving drug and my client lost millions.

Peter Smith was a highly educated business executive, who was involved in multi-million dollar transactions on a daily basis. He was not a one man band, though, and relied on the expertise of professional accountants and lawyers in running his business and also organizing his personal finances. His trust and reliance on those trained advisers is the reason that he is here today, answering questions about his stock trades.

Of course, your initial statement needs to be convincing on its own and consistent with the evidence. In one of my earlier trials as a prosecutor, the defense counsel started his closing argument by telling the jury that this was a case about identity -- who was responsible for cashing embezzled checks over the course of the previous 5 years. The problem, though, was that the evidence at trial included numerous eyewitnesses, as well as handwriting and fingerprint evidence, which established who was responsible for cashing the embezzled checks. A minute into the closing argument, two jurors in the front row started giggling at the question "who is responsible", which wound up spreading throughout the panel within another minute or so.

Your Argument

The specifics of your argument will depend entirely on the nature of your case, the strength of your evidence, and the need to address the other side's evidence. With that in mind, there are a number of tips to consider as you prepare your own closing argument:

• Use the court's jury instructions as the outline for you closing argument. By the time of the closing arguments, the court will have told counsel what instructions on the law will be provided to the jury after argument. In other words, the jury will be applying their understanding of the evidence to the instructions provided by the court. Argue from those instructions why the evidence establishes everything that is necessary to return a verdict for your client.

• Remind the jury of the strongest evidence presented at trial and argue how that evidence can only lead to one conclusion. In one of my earlier trials as a prosecutor, defense counsel put the defendant's wife on the stand to explain that her husband had not, and never would, sell heroin. On cross examination, she explained that her husband sold cocaine, not heroin. My closing argument ran about ten minutes -- leading with her testimony, repeating her testimony, and then concluding with her testimony.

• Address the weaknesses of your case and rebut the other side's central argument(s). Your argument needs to start with your strongest evidence and your best legal arguments. But, it would be a serious mistake to avoid addressing the weaknesses of your case or the other side's best argument. The jury will conclude that you ignored those weaknesses because you had nothing to say -- i.e., because those weaknesses outweigh your strengths. Frame your argument so as to make your own strongest points, but address the weaknesses as well.

Your Conclusion

Your argument should end on a positive note and you need to be specific in telling the jury what you what it to do. Ideally, the conclusion will give you the opportunity to repeat the trial theme set forth in your opening -- i.e., it is not a crime to make a mistake, when you have relied on your attorney's expert advice. In complex antitrust trials, I have used a mock up of the jury form and told the jury how they should fill out the verdict form, once they have concluded that the defendant has improperly stifled competition. Finally, the conclusion should end with where you started -- telling the jury why reaching this verdict is the "right thing" based on the evidence.