Structure Your Closing Around the Jury Interrogatories and Instructions
Standard practice is to structure closing arguments around the instructions to the jury. In a closing for a breach of contract action, for example, you might hear a trial lawyer argue, “The judge instructed you that a defendant in a breach of contract case has a duty to mitigate its damages. In this case, the defendant has failed to do that. Here’s why.” Then the trial lawyer would discuss the evidence that supports the failure to mitigate.
For complex cases, however, I modify the standard practice. Because most complex cases involve jury interrogatories in addition to jury instructions—and because juries likely will spend more time considering their responses to interrogatories than instructions to which they need not actively respond—the better practice may be to structure your closing argument around the jury interrogatories, not the instructions. In some ways, this actually is easier. You can organize your closing to track the jury interrogatories question by question, explaining how the jury should answer each based on the evidence provided. Keep the jury instructions in mind, though. They may be useful to define a legal term contained in the interrogatories.
An interrogatory-by-interrogatory closing argument may seem bland to some trial lawyers who believe that closing is the time for impassioned oratory. Not to worry. This structure still leaves room for impassioned oratory, if appropriate. The purpose of the structure is to let the jurors know the point of your impassioned oratory, by giving them a road map based on the interrogatories they must answer. Do not feel absolutely wedded to the order of the interrogatories, though, if taking them out of order allows you to discuss the most important facts first. The closing argument’s structure should not hamstring the passion of your argument; it should help put it into legal context.
If you address the interrogatories out of order, be sure to answer all of them. You don’t want the one jury interrogatory you “skip”—perhaps because it doesn’t fit in with your theory of the case or because it “doesn’t matter”—to be the one that ties up the jury for hours and produces a bad result for you. During the closing in a complex case, the jurors should be told how all of their findings and conclusions should be made. If the jurors are allowed to take notes on your closing, their notes should read like step-by-step instructions for how to answer the jury forms.
Be Precise When You Discuss the Evidence
Now that you have the structure for your closing argument outlined (so as to answer the jury interrogatories), let’s turn to the content of the argument. For each jury interrogatory you discuss, you should cover exactly what evidence supports the finding you want the jury to make.
For instance, if the first jury interrogatory requires the jury to determine whether or not the parties entered into an oral contract, the party arguing that an oral contract existed should identify all the key evidence supporting the existence of that oral contract. That could be the testimony of witnesses as well as supporting documents. You would discuss, e.g., what evidence establishes the parties’ motivation to enter into an oral contract, showing how the parties had every reason to enter into an oral agreement, and in fact must have done so.
Your discussion of evidence during closing should be specific and precise. Rather than characterizing or summarizing evidence that was admitted during trial (“Mr. Smith told you that there was an oral contract,” or worse, “this finding is supported by the testimony of Mr. Smith”), use exact quotes whenever possible. Be sure to obtain transcripts of the trial testimony before closing, where available. (Most court reporters will produce transcripts on an expedited basis, although it’s expensive.) Thus, instead of saying generally, “Mr. Smith told you that there was an oral contract,” you could remind the jurors, “On the third day of trial, Mr. Smith was asked, ‘Was there an oral contract in this case?’ His answer: ‘Yes.’” Be conspicuous about reading directly from the court transcript. Complex cases are often long, and the jury may not have perfect recall of all the testimony. An exact quote will be more trustworthy to them than your characterization of it.
The same principle applies to exhibits admitted during trial. Juries tend to trust contemporaneous business documents more than postlitigation oral testimony. If important documents support your case, they should be redisplayed and reread to the jury. For documentary and oral evidence alike, precision is persuasive.
Clarify Confusing or Problematic Jury Interrogatories and Instructions
Closing argument may present an opportunity for you to explain any jury interrogatories or instructions that appear ambiguous or confusing. We all hope for perfect—and perfectly clear—jury instructions, but sometimes this does not happen. At the charge conference, the parties may have negotiated certain language to the point of ambiguity. Also, “throwaway” causes of action and affirmative defenses—when included in jury forms but otherwise ignored by the parties—can result in juror confusion.
Before closing, test out the interrogatories and instructions on a layperson, perhaps a secretary, friend, or family member. Find out from them which interrogatories or instructions are not clear. Prepare to explain the purpose and intent behind those interrogatories or instructions. Many times, attorneys are surprised to find that a jury interrogatory or instruction they regarded as almost meaningless becomes a focal point for jury deliberations. A frequent reason this happens is because the jury has not been given sufficient guidance.
Every phase of trial has a discipline to it, and closing argument is no different. An effective closing will lead the jury through its deliberation process step by step, will explain in a logical fashion exactly what jurors should do, and will arm the jury with the information it needs to find in your favor.
Keywords: litigation, woman advocate, closing argument, complex cases, trial skills, advocacy, jury interrogatories, jury instructions