August 08, 2017 Articles

The Do's and Don'ts of a Closing Argument

Present your closing argument with vigor, but be careful to follow the rules.

By Farrah Champagne – August 8, 2017

Put aside your fears of public speaking because your closing argument is your last chance to persuade the trier of fact to rule in favor of your client. Present it zealously! United States v. Taylor, 54 F.3d 967, 976 (1st Cir. Mass. May 17, 1995).

Purpose of the Closing Argument
The purpose of a closing argument is to present arguments to the trier of fact based on the evidence presented at trial, which will allow him to analyze and apply the evidence. During the trial, the trier of fact will have observed the case in bits and pieces. The closing argument is meant to assist the trier of fact in putting the pieces together in a way that makes sense of the evidence. The attorney in the closing argument should explain the importance of the case and request that the court rule in her client’s favor.

What to Do in Your Closing Argument
Basic advice for what to do in your closing argument can best be summarized by words from Taylor, 54 F.3d 967, 971: “Forcefulness in the pursuit of justice is to be admired rather than condemned.”

Develop a theory of the case. To underscore the significance of the facts of the case, it is important to develop and present your client’s position on what really happened. Developing a theory of the case is a necessary guide for a trial and should be simply stated. The trier of fact should be able to consider the theory of the case as he or she applies the facts to the law.

Consider the following hypothetical: In a criminal case for second-degree assault, the defendant’s “theory of the case” was that the defendant pushed the woman’s face away from him after she screamed in his ear and struck him several times in the face while he was driving. Therefore, the defense attorney argued, this was a case of self-defense because the defendant was trying to prevent a car accident as well as physical injury to himself.

Clarify conflicting issues. The attorney must bring out the conflicting issues because those issues are usually what the case turns on. Much of the presented evidence may be undisputed, so the attorney, in the closing argument, must provide the trier of fact with a clear way to understand where the conflicts lie according to the theory of the case.

Discuss evidence as it relates to the elements and facts. The attorney must persuade the trier of fact that the evidence presented is favorable to her client. The attorney must persuade the trier of fact that her client has the stronger case because of the evidence presented. Restating the facts of the case from the client’s perspective is not enough. The attorney must describe the evidence in conjunction with the facts to persuade the trier of fact that the standard of the law has been met. For example, referring to the elements of a crime when presenting the facts can assist in convincing the trier of fact to make a decision that is favorable to your client.

Consider whether to point out weaknesses—theirs and yours. Emphasize the strengths of your case and take the sting out of the opposition’s case by mentioning the weaknesses of your case. The attorney can also point out weaknesses in the opposition’s case.

Determine whether the opposition provided the promises of proof made in their opening statement. If the promises were not kept, show how the opposition failed to live up to its word and how you kept your promises. If you did not present all of the promised evidence, however, it may be dangerous to mention the other party’s failings.

Make organization a priority. The argument should be prepared for in advance, organized, and structured in a similar way to the opening statement. The purpose of mirroring the opening statement is to provide evidentiary reinforcement and strengthen the impressions made.

Make your closing memorable by providing each part of the argument with specificity. Logical organization makes it easier for the trier of fact to remember the evidence. The first and last statements tend to resonate the most with people; thus, consider where to place the most important points in your closing. See, e.g., Jones & Gerard, Foundations of Social Psychology 451–57 (1967).

Discuss the information that the trier of fact must use to evaluate the evidence before actually discussing the evidence.

List and discuss disputed topics in a simple and clear way.

Bring damages into the equation. Spend a good amount of time emphasizing damages if you are the plaintiff’s attorney. This will arouse sympathy because the trier of fact will then focus on the harm that was done. Emphasizing damages will strengthen the attorney’s credibility and give the trier of fact the impression that the attorney has confidence in her case.

Be yourself and be vigorous. The goal of your case is to persuade the trier of fact to rule in your client’s favor. You must show the trier of fact that you believe your client and that you believe in the case. It is okay to become emotional. Be a zealous advocate, and show your commitment to the case and obtaining justice for your client.

The way to do that is to be yourself because copying another attorney’s style could come across as stilted and ineffective. Use clear language and “read the court” to determine what style of argument would be appropriate. The closing argument is the last chance for the attorney to persuade the trier of fact, so it is imperative that the attorney be sincere, direct, and concise.

What Not to Do in Your Closing Argument
Berger v. United States, 295 U.S. 78, 88 (Apr. 15, 1935), offers sound advice for what not to do in your closing argument: although an attorney “may strike hard blows, he is not at liberty to strike foul ones.”

The rules regarding the “don’ts” of closing statements are necessary to know and to follow. The consequences of ignorance of the rules could result in a mistrial or a reversal on appeal.

  1. Don’t deviate from the evidence that is on the record. See, e.g., United States v. Harris, 536 F.3d 798, 812 (7th Cir. Ill. Aug. 6, 2008).
  2. Don’t comment about a “missing witness” who was not called to testify. See, e.g., United States v. St. Michael’s Credit Union, 880 F.2d 579 (1st Cir. 1989).
  3. Don’t read to the trier of fact from law books. See, e.g., Groover v. Dickey,173 Ga. App. 73, 76 (Ga. Ct. App. Nov. 30, 1984).
  4. Don’t try to influence the damages amount by bringing up a verdict in a similar case. See, e.g., Wright & Ford Millworks v. Long, 412 So. 2d 892, 893 (Fla. Dist. Ct. App. 5th Dist. Mar. 24, 1982).
  5. Don’t argue that the defendant’s failure to testify means that he is guilty. See, e.g., Griffin v. California, 380 U.S. 609, 615 (Apr. 28, 1965).
  6. Don’t vouch for a witness’s believability. See, e.g., United States v. Frederick, 78 F.3d 1370, 1378 (9th Cir. 1996).

Don’t underestimate the power of a closing argument. Although it comes at the end of what might be a lengthy trial, it is much more than a footnote to a case. Rather, it can be the focus for a trier of fact. No matter how weary you might be when the finale comes, it is important for you to extract sage advice from a cliché: Save the best for last.

Farrah Champagne is an editor of the Criminal Litigation newsletter, practices domestic violence law, and is a court-appointed attorney for the District Court of Maryland.