March 13, 2014 Articles

Closing Arguments—Not Just a "Free-for-All," Part One

By Christopher G. Floreale

Most, if not all, courts provide a jury charge that instructs the jury that "what is said by the [attorneys] in summation, like what is said by them in their opening statements, or in the making of objections or motions during trial, is not evidence." N.Y. State Pattern Jury Instruction 1:5. But does that mean that attorneys are free to say whatever they want in their closing arguments?

Clearly, the answer is no. While closing arguments do allow for trial lawyers to instill some creativity into their delivery and hone their own courtroom style, there are certain guidelines that attorneys should be cognizant of when drafting a closing statement.

This two-part article will provide practical guidance for crafting closing statements through an examination of how courts have ruled on various types of arguments made to the jury—first, regarding legal, factual, and other technical issues, and second, on the use of personal information and rhetoric to evoke an emotional response. Understanding what may cross the line of what courts have allowed will go a long way toward avoiding jury arguments that could sink an otherwise case-clinching closing statement.

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