An effective closing argument may turn a closely contested trial in your favor. It can move jurors who are on the fence to your side or, more likely, provide jurors in your corner with the ammunition necessary to turn the voting your way during deliberations. Because closing argument is your last chance to talk to the jury and make a positive impression before ceding control to 12 strangers—admittedly a tough task for even the least narcissistic trial lawyer—you must not squander this opportunity. To maximize the effectiveness of your closing argument, consider the following approaches.
September 18, 2013 Articles
Closing Arguments: 10 Keys to a Powerful Summation
An effective closing argument may turn a closely contested trial in your favor.
By Dennis S. Ellis and Adam M. Reich
1. Prepare the outline of your closing argument before your opening statement. Do not wait until the end of trial to start preparing your closing argument. Begin drafting your closing argument even before you prepare your opening statement. This will help you develop the themes of your case and present unified, easy-to-follow arguments throughout the trial. Conceptualize three to five “ultimate conclusions” that you want the jury to reach. At the end of your opening statement, ask the jury three to five corresponding questions that will lead to your desired conclusions. When it is time to close, repeat those three to five questions and argue that the jury must reach the “ultimate conclusions” that you desire.
2. Condense your argument. A lengthy trial is not license for an interminable rehash of everything the jury witnessed. Like a conclusion in a brief, your closing argument should present a concise summary of your argument and state your desired relief. Again, consider condensing your entire case into three to five “ultimate conclusions.” Marshal the evidence and summarize how it supports these conclusions.
3. Employ a three-act structure. Organize the closing argument like a screenplay; your closing argument should have a beginning, a middle, and an end. The beginning should identify the initial conflict. Talk about the parties and begin developing the key characters. In the middle, present the evidence in a favorable light, and show how the conflict was the opposing party’s fault. This should be done whether you represent the plaintiff or the defendant. If you represent the defendant, do not just argue that the plaintiff did not prove his or her case. Instead, convince the jurors that the plaintiff is responsible for his or her own failures or those of the parties.
4. Know which points to emphasize. Be selective about what you emphasize during closing argument. Emphasize that “now we know who the characters really are.” Remind the jury of the questions posed during your opening statement and emphasize the key evidence that leads to the desired “ultimate conclusions.” Emphasize that the point of trial is the search for truth and that your marshaling of the facts and evidence points to only one possible conclusion, i.e., the one favorable to your client.
5. Do not ignore problems. It is foolhardy to ignore problems or bad facts. Do not act like an ostrich with its head in the sand; identify and explain away problems for your case. But, remember that while you need an answer for bad facts, it is important that you do not spend too much time with such subject matter because it may cause the jury to attach undue importance to such information.
6. Use the evidence. Trials tend to involve testimony from more than one witness and more than one exhibit. Use whatever evidence was presented at trial to your advantage. Do not paraphrase documents or reference witness statements; instead, quote them, and display them on an overhead projector, an easel, or a chalkboard. Highlight for the jury the key points of the trial and give favorable jurors the material that they need to win arguments during jury deliberations. Use the actual admitted evidence to lend credibility to your closing argument; a passing reference to what “the evidence has shown” may cause the jury to question the accuracy of your statements.
7. Cast yourself as a steward, not an advocate. Convince the jury that despite serving as the attorney for one side, you are merely a steward of the facts who is searching for the truth. If at the end of your closing argument the jury believes that you presented evidence as objectively as possible and told the truth rather than pursued a contrived agenda, you are more likely to receive a favorable verdict. One way to encourage a neutral impression is to refrain from “tit-for-tat” arguments. Present your own view of the facts without expressly referring to your opponent’s viewpoints or theories.
8. Identify integral jury instructions and discuss any special verdict form. It is important to highlight key jury instructions during your closing argument. In particular, focus on any burdens of proof or persuasion mentioned. At the same time that you are discussing jury instructions, you also should discuss any special verdict form and show the jury precisely how they should fill it out. Sometimes, when trying to apply the facts to the law, jurors may conclude that your recitation of the facts does not support the legal verdict. Help the jurors in this respect by meticulously applying the facts to the law they are charged to follow.
9. Do not read your closing argument. Your closing argument should be fluid and somewhat conversational. The jury needs to perceive you as loose, confident, and convincing. If you read your closing argument from a podium, jurors are not likely to form a strong bond with you and your client. They may distrust you, find you too rigid, or simply tune you out. To avoid this, do not read your closing argument; rather, be spontaneous and engaging.
10. Conclude with a memorable phrase, sentence, or anecdote. Conclude your opening with a memorable phrase or anecdote. Remind the jury not just of the important role that they play in the legal system and the impact that their verdict will have on your client, but also the message that any verdict will send to our society as a whole. Plaintiffs want their jurors to be agreeable, so implore all members of the jury to consider the viewpoints of their fellow jurors, as the collective will of the panel is more important than individual beliefs. Defendants want their jurors to feel empowered. Remind them that their individual voices must be heard. Acknowledge that it is humbling to entrust 12 strangers with the fate of your client, but that you are confident the facts you have presented will lead them to conclude in your client’s favor. Finally, leave the jury with a phrase, sentence, or anecdote that they will remember when they go to deliberate; perhaps a historic quote or something that they can rely on when considering the case. For example, “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.” John Adams, Closing Argument in Defense of the Solders in the Boston Massacre Trials (Dec. 1770).
Dennis S. Ellis is a partner and Adam M. Reich is an associate with Paul Hastings LLP in Los Angeles, California.