TRIAL PRACTICE
Crafting a Closing Argument

By Linda L. Listrom

The purpose of closing argument is to give the jurors the tools they need to reach a verdict. When the jurors begin their deliberations, it is likely that they will be divided, with some favoring the plaintiff and some favoring the defendant. As they deliberate, the stronger jurors will become advocates who attempt to persuade the others to their view of the case. You must give the jurors the ammunition they need to argue your case effectively to the other jurors. Closing argument is the only time in the trial when you can do this effectively.

You must give the jurors the ammunition they need to argue your case effectively to the other jurors.

Organize your argument by topic. The topical method of organization allows you to organize and present the facts in the manner that is most persuasive—which is not necessarily chronologically. Focus on theory, themes, and story. Ask yourself why the jury should return a verdict in favor of your client. You should be able to answer this question in a sentence or two. If there is more than one reason, which are the two or three most persuasive ones? The answers to these questions will be your topics for closing argument.

In arranging your topics, use the principles of primacy and recency. Research teaches us that jurors are most likely to remember what they hear first in your argument and what they hear last, so they are likely to be most attentive at the beginning of your closing argument and at the end. If you have three topics, discuss the two strongest topics first and last.

Build up your theory before rebutting your opponent’s theory. Whether you represent the plaintiff or the defendant, you must help the jury understand why a verdict in favor of your client is a fair result. Start by building your affirmative case and only then rebutting your opponent’s view of the case. Your task is relatively straightforward if you represent the plaintiff: Spend your initial argument discussing your affirmative topics and wait to challenge the defendant’s theory in rebuttal. Your task is somewhat more complicated if you represent the defendant. Here, you must challenge the plaintiff’s theory.

It is more difficult to plan your rebuttal. You will not know what points you need to rebut until you have heard the defendant’s argument. What you should not do, however, is make a list of the defendant’s arguments in the order in which the defendant makes them and go through the list rebutting each one in that order. By doing this, you would be ignoring your agenda—the topics that you believe are important—and, instead, using the defendant’s agenda—the topics he or she believes are important.

Tell the jury how you have organized your argument. It will be much easier for the jurors to follow your argument and remember your key points if you use signposts to guide them. There are several ways that you can use signposts in your closing argument. The simplest way is to explain at the beginning how you have organized the argument: “I am going to be talking about three different topics. First I will talk about . . . then I will talk about . . . and finally I will talk about. . . .” An even better approach is to list your topics on a demonstrative exhibit labeled Plaintiff’s Closing Argument or Defendant’s Closing Argument. At the beginning of your argument, you can refer to the exhibit and its list of topics. Display this exhibit throughout the argument. You can then use it to transition from one topic to the next.

Once you have selected your topics and arranged them in the most persuasive order, you are ready to select the content for your closing argument. Following are some suggestions for how to make those choices.

Frame the issues for the jury. Explain to the jurors what is important to their decision and, also, what is not. Rarely, if ever, are all of the facts in dispute. Often, the plaintiff and defendant disagree not about what the facts are, but about which facts or issues are most important. If, in your view, the jury need only decide one issue in your favor, tell them so. If your opposing counsel is confusing the jury by arguing a point that is irrelevant, explain why it is irrelevant.

Be selective. You do not need to describe every piece of evidence during your closing argument. If you have chosen your topics correctly, you can then use those topics as a guide. Discuss the evidence that relates to each topic. Any evidence that does not relate to one of your topics is unimportant to your argument and can probably be ignored.

Use your best, most persuasive evidence. The best evidence is, of course, an admission by the opposing party, whether in a document or in testimony. Undisputed evidence is also very persuasive; in almost every trial, at least some of the evidence will be undisputed. Equally important but often overlooked is evidence that is persuasive based upon common sense and everyday experience.

Show the jury the evidence. Do not just tell the jurors about the evidence. Do not assume that just because they saw a document earlier in the trial, they remember it now. If a document is important to your theory, show it to the jurors again in closing argument. Similarly, if a witness gave important testimony, you should read from the trial transcript or, better yet, display the transcript on a screen, highlight the key testimony, and read it to them.

Use jury instructions and verdict forms. Think of the jury instructions as another piece of supporting information. If a jury instruction provides support on an important topic in your argument, you may want to read from or refer to it. But a word of caution is in order. If you have not had your jury instruction conference before closing argument, it can be hazardous to refer to anticipated jury instructions in closing argument. If you tell the jurors that the judge will instruct them in a particular way and he does not, the jurors may conclude that the judge does not agree with your case.

Do not ignore bad facts. The jury will undoubtedly remember them. Rather, explain why a bad fact does not matter.

Sometimes the evidence is in conflict. In these situations, you should argue to the jury why your evidence should be believed. Whenever possible, try to reconcile the conflicting testimony of witnesses without accusing one of the witnesses of lying. Jurors are reluctant to conclude that a witness lied.

Use demonstrative exhibits. During closing argument, you can use any demonstrative exhibit that you have used earlier during the trial. However, by the time you reach closing argument, you may have used a particular exhibit so many times that it no longer has any impact on the jury, so be selective. Use a demonstrative exhibit only if you think it will make a difference. In addition to the demonstrative exhibits that you have used throughout the trial, you can create demonstrative exhibits specifically for closing argument. One of the best demonstratives for closing argument is a summary or list of the key pieces of evidence on a particular topic. Another effective demonstrative exhibit for closing is a list of the opposing party’s arguments on a particular point, along with your responses to each argument.

For more Information About the Section of Litigation

This article is an abridged and edited version of one that originally appeared on page 19 of Litigation, Spring 2007 (33:3). For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

Periodicals: Litigation, quarterly journal; Litigation News, bimonthly newsletter; Litigation Update, monthly e-mail newsletter; committee newsletters (all Section members may join three committees at no additional cost).

Books and Other Recent Publications: The Attorney-Client Privilege and the Work-Product Doctrine, 5th ed.; The Litigation Manual, 3d ed.; The Litigation Manual: First Supplement; The Litigation Manual: Depositions; Model Jury Instructions: Employment Litigation, 2d ed.; The Trial Lawyer: What It Takes to Win, DVD/book package; The Curmudgeon’s Guide to Practicing Law; Motion Practice and Persuasion; McElhaney’s Trial Notebook, 4th ed.; Business Torts Litigation, 2d ed.; Discovery Problems and Their Solutions; Electronic Evidence: Law and Practice; Model Jury Instructions: Patent Litigation; Questions from the Bench; Effective Appellate Advocacy; Examining Witnesses, 2d ed.; Model Witness Examinations, 2d ed.; Internal Corporate Investigations, 2d ed.; Fighting Injustice (Michael Tigar); Persuasion: The Litigator’s Art.

Linda L. Listrom practices with Jenner and Block LLP in Chicago, Illinois. She may be reached at .

Copyright 2007

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