Closing argument is not an art. Some attorneys say that it is, but it’s not. It can be artful, but for every closing argument, there is a bricks-and-mortar foundation for delivering a persuasive summation.
In trying jury cases as an assistant public defender in Clearwater, Florida, I developed a system for closing argument. My system was designed for defending a criminal case, but it is easily adapted.
Not Guilty
The first and last words that come out of your mouth MUST be the verdict that you are asking for. If it’s a criminal case, those words need to be not guilty or guilty, depending on which side you’re on.
Burden of Proof
The second thing needs to be your biggest asset. If you’re a criminal defense attorney, that’s the burden of proof. Beyond and to the exclusion of each and every reasonable doubt; that’s a tall order.
Review
Third is the evidence. If your trial was short, don’t bore or insult the jury by belaboring what each witness said. Go over the most important points to your case. If the trial was more than a day or there was a significant break (like the weekend) between trial and closing, then you can, and should, discuss the witnesses’ testimony in greater detail so that you can remind the jurors of the evidence that supports your argument.
Three Reasons
Fourth, make the sell. Clarify exactly what you want in five words or fewer and give them three reasons that the evidence supports your opinion.
In jury selection, I used a bowling analogy to explain the state’s burden of proof. I asked anyone if they’ve been bowling, and I asked how to bowl a strike. I asked if the bowler has to knock down all the pins. Of course, the answer is yes. I asked them if a person can bowl a strike without knocking all the pins down. Of course, the answer is no. I told them that the state had a similar job; they had to bowl a strike and eliminate all reasonable doubt that the defendant is innocent. If any pins, or doubts that are reasonable, are left standing, the state did not do its job. In closing, tell them there are three pins left standing, and when there are reasonable doubts that a defendant committed a crime, the law demands an acquittal. Tell them that you only need one reasonable doubt and the law requires a not guilty verdict, but you’ve given them three because there is that much doubt in this case. Tell them this is in the jury instructions and you should print a copy of the instruction on giant paper and show it to them.
Explain Why the State’s Evidence Falls Short
Fifth, restate your biggest asset and explain why it supports the outcome you’re requesting. For criminal defense attorneys, this is where I used to remind the jury that the state had the burden to prove beyond and the exclusion of every reasonable doubt that my client was guilty. I reminded them of the three reasons my client was not guilty and that because of those three reasons, the law demanded an acquittal. The law demanded a not guilty because the state had not done its job. This is your opportunity to tell your story and be artful. Be bold.
What You Want (Again)
Sixth, tell them what you want again. Guilty. Not guilty. Whatever. This may be your last opportunity to speak to the jury, so make it good and make your argument crystal clear. This is the time to tell them exactly what you want and don’t be shy. Pick up a copy of the verdict form and read it to them.
If you’re a defense attorney, tell the jury that this will be the last opportunity you have to speak with them and that the prosecutor will get up and make a compelling argument why they are right and you are wrong. Tell the jury, please ask yourselves “what would the defense say?” and tell them that if they consider that and really consider all of the evidence and the arguments, justice will be done and they have done their job; but they can logically only come to one conclusion: not guilty, because the state didn’t prove it.
Rebuttal
This is your second bite at the apple. Make it short and sweet and tell them yet again what you want.
Remember, closing argument is not an art. It’s like building a house. The first step to winning over a jury is that they actually understand your argument. Keep it simple. Be clear.
