August 28, 2018 Practice Points

Tips from the Bench: Effective Closing Arguments

How to grab the jury’s attention

by Kaelyn J. Romey

Alameda County Superior Court Judge Thomas E. Stevens shares his thoughts on effectively conducting closing arguments for all lawyers new to trial practice. His insights include avoiding common mistakes and providing sound practices for lawyers in the courtroom. Judge Stevens’ responses are personal and reflect his own views only, and should not be interpreted as made by or on behalf of the judges of the Superior Court for the County of Alameda.

Judge Thomas E. Stevens was appointed to the bench in 2014 by Governor Jerry Brown after a distinguished litigation career in the private and public sectors. Judge Stevens joined the bench after serving as Chief of the Oakland Branch of the U.S. Attorney’s Office for the Northern District of California. His well-rounded career began in the Los Angeles County District Attorney’s office, followed by seven years at Skadden, Arps, Slate, Meagher and Flom, LLP. Judge Stevens returned to public service in 2004 as a trial attorney for the Department of Justice, Criminal Division, Fraud Section, before joining the U.S. Attorney’s Office in San Francisco in 2008. Judge Stevens combines his experience in trial practice with a view from the bench to share litigation tips with junior trial attorneys around the U.S.

Judge Stevens is interviewed by Associate Professor Kaelyn J. Romey, the litigation director at Golden Gate University School of Law.

KJR: What makes a closing argument memorable and effective?

Judge Stevens:  The most memorable closing arguments that I have seen involved a fully developed, compelling theme, combined with the attorney’s mastery of the facts and law in support of that theme. Additionally, effective closing arguments are usually relatively short, fairly outline the law and evidence, and highlight aspects favorable to the attorney’s case, while acknowledging (and rebutting) unfavorable facts and legal concepts.

KJR: What behaviors should all lawyers avoid during their closing arguments?

Judge Stevens: An attorney should not ignore law and facts that are unfavorable to the attorney’s case. Opposing counsel may exploit a failure to address those issues. Also, attorneys should avoid ad hominem attacks on opposing counsel or witnesses – it is impolite, unnecessary, distracts from the merits of the case, and makes counsel appear overly defensive to the judge and jury.

KJR: Judges often have printed standing trial practice orders. If a judge is new to the bench or does not have printed orders, how would you recommend an attorney learn about a judge’s preferences?

Judge Stevens: Attorneys may wish to ask colleagues who have appeared before the judge what they have learned about his or her preferences. Counsel may also wish to prepare a list of questions about the judge’s trial practice preferences, for review with the judge during the pretrial conference.

KJR: Do you have any specific preferences regarding attorney conduct in your courtroom? Some judges require attorneys to remain at the podium while addressing the jury; do you allow attorneys to move about the courtroom during closing argument?

Judge Stevens: I strongly encourage decorum, civility and formality during trials. During closing arguments, I ask that attorneys generally remain at the podium, although I do not object to some limited straying or pacing back and forth. I understand that closing arguments can be emotional; I do not expect the attorney to be a statue.

KJR: Do you ever impose time limits on a trial or limit the closing argument?

Judge Stevens: Time limits, if there are any, depend on each individual case; I have no bright-line rules in this area. The specific facts of each case, the case’s complexity (or lack thereof), the number of potential witnesses, and the parties’ individual requests and time estimates may affect my decision whether to impose time limits.

KJR: Is there proper etiquette for objecting during opposing counsel’s closing argument?

Judge Stevens: I rarely see many objections during closing arguments, because I think counsel (correctly) see it as bad form, unless necessary to protect the record. But if an attorney must interpose an objection, the attorney should simply stand up and speak firmly and briefly. Attorneys should avoid shouting, using hand gestures, or otherwise becoming overly emotional or animated. A proper objection should be limited to the specific legal basis of the objection (i.e., no “speaking” objections).

KJR: What are avoidable mistakes that are often made in closing, and what were your strategies as a practicing litigator to avoid them?

Judge Stevens: Because the magnitude of a mistake depends upon the specific context in which it was made, i.e., the specifics of the trial question, I don’t have a ranking of the “worst” types of mistakes. Generally speaking, common forms of mistakes that I’ve seen as a judge involve misstating the evidence, misstating the law, violating prior rulings, and other forms of attorney misconduct. While attorneys should seek guidance from their mentors and/or supervisors about the specifics of how best to prepare for closing arguments, I can speak to some of my own methods while I was a practicing lawyer: In my closing argument outline, for every factual assertion I intended to make, I referenced a specific exhibit and/or excerpt of witness testimony in support of that assertion; similarly, for every legal contention, I included a citation to the relevant jury instruction and/or case. I didn’t necessarily mention every one of those supporting references to the jury, but it was important to have them there, in case of an objection or some other dispute about what I had argued to the jury.    

KJR: What are three things junior lawyers should know before delivering a closing argument?

Judge Stevens: Again, as to this question, attorneys should consult with their supervisors or others in attorney mentoring roles. But my own perspective on this questions is as follows: 1) Shorter is usually better. Jurors and judges, like anyone else, have limits to their attention span. 2) Arguments that are well-organized and include visual presentations are usually more compelling than those that lack those attributes. 3) The case should never be personal to the attorneys – remember to take the high road and stay away from sarcastic, flippant, or critical comments about opposing counsel. Junior lawyers sometimes make these comments because they feel compelled to “respond” to their opponent’s case. But the case is entitled “Smith v. Jones” or “People of the State of X v. Defendant Y” for a reason – those are the parties to the case; the case is not “Attorney A v. Attorney B,” and lawyers should not present it as such.

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