Professional Tools for Litigators: Closing Arguments

The opening statement in a trial should be treated like the preview of a movie, the trial like the movie itself, and the closing argument like a review of the movie that has just been screened. But contrary to the opening statement, it is fully appropriate to argue the significance of the evidence that has been admitted, and that is what you should do.

Here are some suggestions about how to plan and deliver your closing arguments.

Just as you were mindful of the theory of your case throughout the preparation and evidentiary phases, you should also focus upon that theory in your closing. As an example, the best trial attorney I ever worked with was Frank Rothman. Once he represented a client in a criminal tax evasion trial, and even though the prosecution put on extensive evidence tracing how complicated business transactions had been carried out, Frank never asked one question in cross-examination. Only at the end of the trial, and after the trial judge asked him if he was sure he had no questions, did Frank ask one question in the cross of an IRS agent, which was “Do you not agree that this was a complicated situation?” to which the agent agreed that it was. Then in his short argument, Frank simply stated that if this was so complicated that it took the government so many days to explain it to the jury at trial, how could the jury possibly conclude beyond a reasonable doubt that his client could have understood it in order to form the necessary intent to defraud? That was Frank’s theory, and his acting upon it resulted in an acquittal for his client.

If you do not mention a particular exhibit in your closing argument, probably the jury will not consider it. That does not mean that you shouldn’t have admitted it, because that exhibit could be useful in an appeal, or just to show the jury that it exists. But do not count upon jurors doing much original research during their deliberations.

During the trial, keep two sets of notes. One will cover the testimony and the questions that you wish to ask, etc. But the second one should be reserved for those “subtle but pivotal points” that are brought out by the evidence. Then be sure to consult that second set of notes when preparing your closing. For example, I once prosecuted the head of laser beam research at TRW for stealing government equipment and storing it in his garage. His defense was that he took it there because he would work on the weekends, and it was more convenient to have it at home. But on the second notepad I recorded that he had also taken a telephone, and even though it was the least expensive piece of equipment, it showed his state of mind. Sometimes those small points can get lost, unless you put them in a separate place.

During the trial, once you get a point you want from your opposing witnesses, leave the subject right away. Then make a note, and argue it to the jury. The more you continue to focus upon that point during your questioning, the more the witness can equivocate and the less clear the record will become. So just move on, and then simply read the question and answer from the reporter’s transcript during your argument.

Be careful of humor. Yes, it can be effective, but it can also hurt you if it does not “go over” well, or it could make it appear that you are not taking your client’s case seriously enough. Plus, invariably opposing counsel can always find a way to use it against you. So leave humor alone.

Don’t bite off too much in your argument. For example, many criminal defense counsel argue that they can show their clients are innocent. But when they take that approach, there can be an inclination for the jurors to convict if they do not believe the client’s innocence has been established. Similarly, many counsel argue that an opposing party has “lied.” Not only should that term not be used because it tends to demean the person making that statement – say “affirmatively did not tell the truth” instead – but often if the jurors are not convinced that the party actually lied, they will be inclined to find against the party making that assertion.

As counsel for plaintiffs, try to tell a story about your clients and how they have been adversely affected by the acts of the opposition. Or sometimes it is even better to recite the story of how the actions of your opposing party were irresponsible or even illegal, and easily avoidable, and that these acts caused harm to plaintiff. Of course, in this presentation you should also include the defects in your own client’s case, and then show how they were not so important, or were not a direct cause of the injuries. Defense counsel should do the same thing, but in reverse, by telling a story about plaintiffs’ actions and how they led to their own harm, or how defendants’ actions were not unreasonable under the circumstances. Putting your case into a story form almost always has a beneficial effect upon juries.

Use the trial court judge to enhance your own credibility. Fortunately, before you give your closing argument you will know what instructions the judge will give to the jury. So instead of reading those instructions to the jury in your closing, simply incorporate them into your presentation. For example, if it has been shown that a witness testified falsely on a material issue during or before the trial, don’t just read the “Witness Willfully False” instruction. Instead tell the jurors in easy to understand words that if that is their conclusion, they are fully at liberty to disregard the testimony of that witness on other points. If you use that approach, when the judge actually gives that instruction it will sound familiar to the jurors, who will then remember that you as counsel told it to them. This will enhance your credibility, such that the jurors will often think, well, she was right about that situation, so she must be right about those other things she has told us as well.

Go over the questions on the Jury Verdict form during your argument, and tell the jurors what you believe their answers should be based upon the evidence. Furthermore, if you represent plaintiffs and if you do not have the “courage” to tell the jurors the amount of damages they should award your client, probably the jurors will not have the courage either. On the other hand, many defense counsel approach the issue of damages awkwardly by saying that even though the jurors should not find liability, they suppose that they should cover the issue of damages “out of an abundance of caution,” and then proceed to do so. The better way is to cover the issues of possible damages at the beginning of your argument, and then say that the jurors will not actually have to worry about damages, because they aren’t going to find liability in the first place because of the evidence. That approach is much more fluid, and shows a great deal more confidence.

The final part of the argument by plaintiffs (or cross-complainants, if the court will allow them a rebuttal argument) should consist of thanking the jurors for their attention, etc., and then explaining that opposing counsel will now have their turn to make their comments. But when they do so, do not simply let them discuss only what they see as their strengths, also make them address “the Hard Questions.” For example, make opposing counsel explain to you how the neutral witness who has nothing to gain from the outcome of this trial and who was in a perfect position to see the traffic collision, could have been mistaken in his testimony; or why if the opposing party did not understand what was on the written contract, she still went on to sign it, etc. Then sit down and wait. If counsel attempt to answer questions for which there are no answers, you can comment about those feeble attempts in your final argument. And if counsel ignore those questions, you can similarly comment in your final argument that counsel actually agreed that there were no acceptable answers by failing to answer them. Of course, never adopt this approach if there really are some reasonable answers to your questions, because you could really hurt yourself.

Finally, remember that it is improper to bring up new material in your rebuttal. It is called rebuttal for a reason, and it should only be used to respond to points that were brought up in opposing counsel’s argument. That means that if for some reason opposing counsel waives closing argument, no rebuttal would be allowed. So adjust accordingly.