Finishing Strong: Closing Arguments for Both Sides

Closing Argument Tips for the Plaintiff

Developing the closing argument. By the final pretrial conference, you will have an understanding of what evidence will be admitted and which witnesses will testify. You also can anticipate what arguments defense counsel will make and how they may affect your case. At this point, you can begin to draft an opening statement weaving the pieces of documentary evidence and the testimony of witnesses in a narrative manner. The closing argument is the culmination of that effort with the added bonus of argument and emotion. Many lawyers representing the plaintiff prepare their case using a draft pretrial order. This allows them to focus on the witnesses and exhibits necessary to carry the plaintiff’s legal burden.

Many also prefer working backward from a draft closing. This accomplishes the same goal with the added benefit of the persuasive effect of that evidence. It also ensures that your opening will contain the persuasive facts that compel a decision in your client’s favor.

Most cases are decided as they would have been after only an opening statement.¹ Make sure that your opening and closing meld to take advantage of that redundancy.

Delivery. Some attorneys believe that soaring oratory is expected or required. Yet, the most persuasive closing may be straightforward and lack such histrionics.

Whatever stylistic flourish is chosen, closing offers plaintiffs attorneys several opportunities to persuade the jury. Closing not only is the final opportunity to emphasize the case themes introduced in the opening statement and the time to take advantage of (or repair) the “slings and arrows” that inevitably plague any trial presentation but also, in most jurisdictions, allows the plaintiffs attorney the advantages of both primacy (believe in what you hear first) and recency (remembering what you hear last).²

Limits. Although great latitude is given during closing arguments, it is not unlimited. You cannot make inflammatory appeals or attack defense counsel. You should not misstate the evidence or argue any matter that has no factual or inferential basis in the testimony or exhibits in evidence.

Addressing weaknesses of the case. It is essential not only to succinctly argue the admitted favorable evidence but also to explain the unfavorable, fitting it into the narrative developed from the start of the trial. If you ignore a piece of unfavorable evidence, you can be sure defense counsel will focus on it and, more importantly, on the fact that you ignored it. Instead, briefly acknowledge adverse evidence and explain how it does not require the jury to discredit the basic tenets supporting recovery. Redirect the jury’s attention to favorable documentary evidence or testimony that fits your case’s themes.

Expecting the unexpected. Before the start of trial, you may plan every word of an opening statement, the tone you hope to use, and even the gestures you plan to make while you give it. The same is not true for the closing argument. A trial is fluid and seldom goes as scripted. Evidence that you thought would be admitted may not be. A witness you prepped for hours will perform differently on the stand than expected. The defense will color outside the lines that you have drawn for it.

Pay close attention to everything that defense counsel does: each question asked, each witness presented, each exhibit offered. Each provides insight into what the defense will stress in its closing. Try to observe the jurors’ reactions as the defense presents its case. Reword your original closing argument to tackle these “new” facts/issues head-on.

Every closing will incorporate the statement that you had planned to give, the one that you do give, and the one that in hindsight you wish you had given. Each attorney has unique skills that inform each of these.

Millennial jurors and technology. Your jury almost certainly will include millennials. Millennials define themselves by technology, and, as a result, you must embrace it. Millennials have grown up with animations and graphics depicting an event, usually with a narrative “crawl” to explain it.

In closing, use trial graphics and demonstratives thoughtfully—only those that communicate your theory directly and get to the point quickly. If used effectively, demonstratives grab jurors’ attention and help them identify elements that reinforce your key themes.

Please remember that the jury will be a mix of ages and demographics. Do not confuse one group by directing your presentation at another. As a practical matter, if you are flashing more than one slide or graphic per minute, you likely are just regurgitating your closing words in visuals.

Jury instructions. The court’s jury instructions can be long, confusing, and seemingly contradictory to a juror hearing them for the first time. Pick several jury instructions that support your themes and argue them by connecting the law to the evidence presented. This will allow jurors a touchstone when advocating for a verdict during deliberations.

Discuss the burden of proof. Jurors probably will be familiar with the “beyond a reasonable doubt” standard applicable in criminal cases. They may understand but not appreciate the “preponderance of the evidence,” which is applicable in civil cases; explain what this is and how the plaintiff’s evidence has surpassed that requirement.

Use the verdict form. Explain how it should be filled out if the jury wants to return a verdict in your client’s favor. However, never tell jurors what conclusion they must reach. Remember, there is no zealot like a recent convert. You want to lay out the facts in such a way as to compel jurors to reach only one reasonable conclusion. If you have done so, there will be no need to insist that they do so.

Monetary damages. Asking for monetary damages is difficult in both substance and tone. However, it is important to remember that a jury likely has no idea how much money to award for damages such as emotional distress, physical pain, or the loss of consortium. Do not be timid in asking for monetary damages. It is a legal debt owed to your client because of the defendant’s conduct.

Of course, your argument is only a suggestion and should be so phrased. While speed kills on the highway, it is often greed that does so in closing.

Make sure that the jury is aware of the consequence and finality of its verdict. This will help the jurors appreciate the importance of not only a finding of liability but also the damages awarded.

Rebuttal. Rebuttal provides you, as plaintiff’s counsel, the opportunity to have the last word. Take it when it is offered.

Pay attention during defense counsel’s closing argument and focus on its weakest points. You can and always should save something for rebuttal. That will allow you to make a meaningful final argument if spontaneity does not provide for one.

The jury will be ready to deliberate, so keep your rebuttal short and to the point. Emotion is allowed—in fact, encouraged. However, jurors see through attempts at emotional manipulation.

Jurors want to do the right thing. They want to reach a just result. Most want to follow the law. Frame and present a closing that allows them to do so.

General tips: do’s and don’ts. Below are some general tips for the closing argument that will help ensure success for the plaintiffs attorney.

Certain affirmative steps will maximize the effect of a closing argument:

• Be yourself. While jurors vary in intelligence and predisposition, most can spot a phony.
• To persuade, you must be interesting and informative. You do not necessarily have to be entertaining.
• Be straightforward. Cases vary in complexity, but themes are invariably simpler and more direct. Very few sinners are saved after the 30th minute of the sermon. Length and repetition often accomplish the opposite of their intention.
• Be careful to stay within the facts and defensible inferences that they provide. Remember that another attorney is listening, and he or she will follow your closing. Your client’s case deserves to be decided on its facts—not on how the defense argues that you messaged them. (Of course, if unfairly attacked, you have rebuttal to so state.)

Plaintiffs attorneys should avoid the following:

• Do not exaggerate or expect your emotion to leap directly into the jury box. It is the power of the evidence and the impact of your client’s story that create deep impressions. Jurors expect you to try to play on their emotions. Playing against type often allows them to react more profoundly to your argument.
• Do not tell the jury how a case must be decided. Instead, allow the jury to connect the dots and reach a conclusion favorable to your client. Once the jurors have come to that conclusion on their own, they can articulate it in the jury room better than they can restate the arguments that were presented by counsel. Of course, this requires you to effectively present the dots at trial and then place them in a persuasive order in your closing argument.
• Do not be disingenuous. This may come as a surprise, but jurors do not instinctively trust lawyers. They often believe that lawyers are there to fool them, play on their emotions, or hide things from them. Do not live down to their expectations.

Closing Argument Tips for the Defense

Developing the closing argument. In developing the outline for an effective closing argument, consider these questions at the beginning of the case and throughout the trial:

• What jury instructions will be given, and how can you use them to bolster the strength of your client’s position?
• What did you learn about jurors during voir dire, and how can you weave those learnings into your closing argument as a way of connecting with the jurors and gaining credibility?
• What are your themes for the case, and how can you sustain them through all phases of the trial in a way that is both credible and powerful and reinforces them in the subliminal memories of the jurors?
• What is the evidence most beneficial to your client, and how should you present it in the closing argument for maximum effect?
• What is the evidence most damaging to your client, and how should you present it in a way that maintains your credibility with the jury but does not give the evidence too much prominence?
• Which exhibits best support your case themes in visual form?

The use of these questions throughout the case will help you structure witness examinations; determine which documents to enter into evidence; and, to a lesser degree, determine which demonstratives are best for your case. If you put on your case-in-chief without some idea of what you want to emphasize in closing, you are apt not to get the evidence you need to be able to structure a persuasive closing argument.

Delivery. There is no single way of or style for presenting a closing argument. Whatever style you adopt, you must be your authentic self, and that is what the jury should see when you are delivering your closing argument.

Two common delivery styles are the lecture method and the storytelling method. The storytelling method is a viable option for a lawyer who prefers to be free of the podium and is comfortable presenting significant portions of the closing argument without notes. While there is an element of storytelling involved in the lecture method, it is minimal as the emphasis in the lecture method is placed on a more linear presentation of the closing argument; it is best suited for someone who likes to make maximum use of printed notes and is more comfortable behind a podium. Regardless of the method chosen, a successful closing must leave the jurors with the key points of your client’s case at the forefront of their minds when they retire to the jury room to decide the case.

Lecture method. In this approach, you succinctly and memorably recount the testimony that the jury has heard in the trial. The best of us cannot recall the details of hours, days, and weeks of trial testimony and evidence, even with substantial motivation and incentives to do so. The jury is not compensated any differently based on how much attention they paid to your presentation. It is likely that some key facts presented during the trial are blurred in the minds of the jurors and are not remembered nearly as crisply as you recall. Therefore, it is common practice, and often helpful, to highlight (succinctly) the most important information that the jury heard (and may have forgotten already).

Recounting the central testimony and evidence can remind the jury of the important facts already heard. You may have told the jurors in your opening statement what they were going to hear, then they heard the core facts in the trial itself, and now you can provide a concise reminder of key information. This allows you to recount briefly vital testimony that you skillfully pulled out during your cross-examination days or weeks before, and place it right where you want it—the forefront of the jurors’ minds.

The counsel that can best present a few points encapsulating why their client is right will increase their client’s chances of obtaining a favorable verdict. Jurors are more likely to focus on only the most engaging and memorable points of evidence when reaching their decision, while overlooking the dozens of smaller related points that were made during the trial. Recounting these central points in a memorable way can provide jurors with a mini-outline to be used during deliberations and arm them with favorable facts to use in convincing other jurors. You simply do not want to risk a juror being unable to justify a favorable position to the rest of the jury, weakening their ability to convince others and increasing the risk that they themselves are swayed to an adverse verdict.

Storytelling method. Trials containing mountains of facts can be challenging for anyone to keep track of—especially a jury that first learned of the facts days or even weeks earlier. To facilitate their analysis and provide a structure in which the facts can be applied, a creative and engaging trial lawyer can tell the story of the case during the closing argument, both succinctly and memorably. This approach should bring in the most compelling evidence at various points in the story, which may be more memorable to the jurors if the presentation flows either chronologically or thematically.

Any engaging story begins with setting the stage, including why this case is being heard, what the potential impact could be on the parties, and what role the jurors themselves are playing in the process. It is important to emphasize both the importance of the oath taken by the jurors and their integral role in supporting the American jury system, along with demonstrating why that oath is important to your client. In other words, the final chapter is yet unwritten, and it is the jurors themselves who will write those last pages and complete the story. Impressing upon them the crucial role that they are playing will serve to further the trust relationship being built between you (and your arguments) and each individual juror. By bringing the jurors into the storytelling process, you will ensure that they are more likely to engage with the frequently complicated arguments that you have advanced while also viewing your client as more than someone trying to win the “litigation lottery” or as just another cold corporation. Instead, the parties are real people (the savvy attorney will also point out that corporations are made up of real people as well) whose lives and/or interests are subject to the jurors’ control; your entire story gains more significance and legitimacy by acknowledging this realistic nature of the proceedings.

Crafting such stories depends on the facts and issues in each individual case, but the central themes of your stories must be present throughout and must be credible. Ask yourself, “Do the themes resonate with the daily experience of the average person?” Remember, if they cannot conceive it, they will not believe it!

Limits. Many years ago, a well-known trial lawyer stood before a jury and asked it to return a monetary verdict for his client, a large, multinational corporation. He asked the jurors to think about not what they could do for his client but what they needed to do for their fellow Oklahomans. It worked; his client was awarded every penny he asked for. Unfortunately, the verdict was reversed by a unanimous Oklahoma Supreme Court.³ The court wrote that the closing argument was prejudicial, suppressed the issues and the corporate identity of the plaintiff, asked the jurors to place themselves in the shoes of the plaintiff, and stopped the jury from deciding the case based on the facts—a surprising result for a case between two large corporations involving some damaged freight.

Attend a plaintiff-focused seminar on closing arguments, and the speaker will likely discuss the “Reptile Theory.”⁴ The Reptile Theory is, generally, an argument advanced by plaintiffs that the jury must render a verdict not just for the plaintiff but for the larger community. Such an argument is clearly improper, but its use is by no means limited to plaintiffs. Well before the Reptile Theory was advanced, both plaintiffs counsel and defense counsel would make arguments invoking a variant of the Golden Rule: Do unto others as you would have them do unto you. A closing argument that attempts to convince jurors that a verdict is necessary for community safety, to send a message, or to redeem the community’s values is grounds for a mistrial and, potentially, sanctions against the offending counsel.

While inappropriate argument themes can be attractive and one might be tempted to find a way to walk a tightrope that stays just short of a mistrial, there are other types of closings that are equally persuasive and less risky. You must find the one that best fits the themes of your case, your unique skill set, and the audience listening to it.

Jury instructions. Tie the evidence to the jury instructions and special verdict forms. During deliberations, jurors apply the facts to complete verdict forms within the bounds of the jury instructions that they have received. Point out the most important parts of the jury instructions, and show the jurors how the evidence directly relates to the verdict form questions that they have to answer. Jurors appreciate assistance in applying the facts to the law. However, be careful not to invade the province of the jurors: jurors are fine with attorneys “showing” them how to complete the verdict form but respond negatively to being “told” how to complete the verdict form.

General tips: do’s and don’ts. Below are some general tips for the closing argument that will help ensure success for the defense attorney.

The defense attorney should take certain affirmative steps to maximize the effect of its closing argument:

• Be yourself. The jurors should feel as if they are being taught something new or being told a story by John Q. Neighbor, not High A. Mighty, Esq. It is easy to deliver messages when we do it from our authentic selves.
• Express empathy for the plaintiff. It is human nature to empathize with those who are injured and/or are suffering. A defendant that cannot show or express such feeling likely will not gain the favor of the jury. One can empathize without being the cause of the plaintiff’s situation.
• Prepare an outline of the points to make in your closing argument before the trial even begins. Unless you can tell where your opening statement, closing argument, and everything in between is aimed, there is little chance that the fact finders will. It is vital to know the key themes of your case and the path that you will follow to proceed from your opening statement to the closing argument. By outlining the points to be highlighted during a closing argument, a skilled trial lawyer can weave them throughout the rest of the case, resulting in a more memorable and effective closing argument.
• Be concise. Closing arguments follow hours upon hours of legal arguments and facts. As exciting as counsel may find a debate about the nuances of precedent, it is unlikely that your jurors will feel the same. To that end, it is best to summarize your position in a few hard-hitting points, which the fact finders can keep in mind when deciding your case.
• Tell a complete story in your closing argument. Do not merely hit the jurors with your conclusion; tell them the whole story in a condensed form. What was the issue? What evidence has been presented about the issue? Why is the defendant not liable? By condensing your position in this fashion, the jury is provided with a story on which to attach your emphasized points.
• Emphasize only the truly noteworthy points. If you highlight an entire paper, there is no emphasis. Likewise, emphasis gets lost in closing if too much is rehashed. Simply remind the fact finders of the key players, the key evidence, and the key questions that they must consider. Remind the jurors that their role is to discover the truth, and present them with the best truth for your client on a silver platter.
• Address problems directly. If you are at trial, it is highly improbable that there are zero bad facts. As much as you may wish those bad facts would go away, it is inevitable that certain points will be made during trial that are bad for your client. Some may be negligible, but others may attack the central pillars of your case. Do not ignore these issues in closing argument; instead, deal with them quickly and efficiently. Do not underestimate your judge and jury. An attentive fact finder will have noticed which points are best for the plaintiff, and total silence on these points by the defense in closing argument may appear to be an admission. It is best to face these facts squarely and deal with them quickly because you do not want to draw undue attention to them.
• Make use of the evidence. You have just spent hours presenting exhibits in trial and drawing testimony from witnesses, both yours and the plaintiff’s. Use them! Quote the best portions of the testimony, and point out the key segments of exhibits. A general reference to “the evidence you have seen” is far less helpful to a favorable juror than a specific quote or reference. Put the evidence to work for you during closing arguments, and it will work for you during the deliberations as well.
• Be a neutral advocate for the truth. Everyone in the courtroom knows that you represent the defense, but that does not mean that your closing arguments have to appear biased. The best closing arguments present the evidence as the truth, not merely as solicited facts that skew in favor of your client. If the jury views you as showing them a truth that supports your client instead of creating a truth to support your client, your closing argument will be much better received.
• Make your closing argument natural and engaging. The closing argument is one of the few times that you can speak directly to the jury. To do this most effectively, it should be a conversation during which the jurors engage with you by listening attentively. Such a conversational tone is undercut if you simply read your closing argument from behind a podium (caveat: always know your jurisdiction and judge—you may be required to stay at the podium). You should make eye contact to engage each juror individually.
• Finish strong. This is your last chance to present your case to the jury, so it is crucial that your last word be memorable. Impress upon the jurors the importance of what they are doing and how each individual juror’s voice is crucial. If you can apply a quote or saying that the jurors are already aware of, all the better; the goal is to have your closing argument stand out to the jurors as more engaging and forthright than the plaintiff’s closing argument. Closing with a hard-hitting line can go a long way toward securing a defense verdict.

Just as there are certain actions that the defense attorney should take, there are certain actions that the defense attorney should avoid:

• Do not apologize. People are taught that when they have done something wrong to another person, they should apologize. Remember, your client has not done anything wrong, so there is no need to apologize.
• Do not mischaracterize the evidence. Your credibility with the judge and jury is of paramount importance. Downplay the importance of bad facts, but never misstate them.
• Do not attack your adversary’s character. Nothing is worse than the jury seeing your client as a massive company that is repressing or minimizing the concerns of the little guy (who is very frequently more similar to your jurors than you are). Attack the arguments, not the individuals.
• Do not let objections throw you off. Stick to your plan and story. You should know your argument inside out so that you can return to it with great agility after any interruption.
• Do not lose your audience through your presentation style. Your jurors just listened to hours of testimony. The last thing you want is to have their eyes glaze over due to you missing the forest for the trees, speaking in a monotone, or using complicated legal words. Closing argument is not the time to try and impress others with the number of polysyllabic words in your vocabulary!
• Do not discuss your personal beliefs or become overly animated. Stick to the facts—do not be theatrical. While establishing a personal connection with the jurors can serve you well, you should not achieve this through personalized emotional appeals.

Conclusion

Your closing argument may be the single most important part of the trial. As you approach the finish line, the fact finders have heard all the evidence from both sides. They may have already made up their minds, but, just as likely, they may be on the fence. The closing argument is your opportunity to shine by wrapping up the entire case in a neat package, distilling hours of testimony and exhibits into a concise and hard-hitting presentation. This can anchor jurors to your side and equip them to be advocates for your client’s position during jury deliberations.

A weak or rambling closing argument can irreparably damage your position. In order to finish strong, you should begin with the end in mind. Sufficient preparation and practice are crucial to ensuring that your closing argument—and your case—leaves the jury with no doubt of the strength and correctness of your client’s position.

Bibliography

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Notes

1. Caveat: Perry Mason never gave one, and he never lost a case! However, studies conducted on jurors reveal that most cases are decided the same way they would have been had the verdict been rendered with the benefit of an opening statement only. See Harry Kalven Jr. & Hans Zeisel, The American Jury (Univ. of Chi. Press 1971) (a highly acclaimed report from the University of Chicago Law School that reviewed over 3,500 jury trial reports from courts all over the United States and offered a general theory of jury decision-making).

2. Bill Kanasky Jr., The Primacy and Recency Effects: The Secret Weapons of Opening Statements, 33 Trial Advoc. Q. 26, 26 (2014); Suzie Strong, Start Strong, Close Strong, 50-NOV Ariz. Att’y 10 (2013).

3. Chi., Rock Island & Pac. R.R. Co. v. Am. Airlines, Inc., 408 P.2d 789 (Okla. 1965).

4. For more information on the Reptile Theory, see Reptile: The 2009 Manual of the Plaintiff’s Revolution by David Ball and Don Keenan (2009).