The Do’s and Don’ts of Closing Arguments
By Mark B. Wilson, P.C
There are many different ways to present a closing argument, and each attorney should develop a style that is most comfortable to him or her. However, I have learned there are some elements every attorney should consider including and excluding, regardless of the attorney’s style.
Closing Argument Do’s
Do Use a Chronology
A jury usually does not hear evidence in chronological order. Nevertheless, a chronology of events is often important to a jury’s decision. Accordingly, attorneys should consider preparing a chronology of events (also called a timeline) to use during closing argument. I have used elaborate chronologies prepared by professional artists that help tell the story of the case. However, not every case justifies this expense. Software is now available to aid attorneys in creating their own timelines.
When preparing a chronology, it is important to take care in deciding what to include and what to exclude. The chronology should tell a story. Unimportant events should be excluded. Important events (e.g., the date the defendant was put on notice of a dangerous condition) should be highlighted. It is critical that the attorney have evidence to support every event on the timeline, or a court may require the attorney to remove the event from the timeline or exclude it from closing argument altogether.
Do Play Videotaped Testimony
I cannot emphasize enough the power of videotaped testimony during trial. Damaging testimony is even more devastating when used during closing argument because the attorney can set up the testimony, play only the important clips the attorney wants the jury to hear, and then argue why the testimony is important. In a premises liability case where my client was raped, defendant’s property manager testified that in response to plaintiff’s question about the safety of the apartment complex, the property manager said the property was safe. Later, the property manager testified that within the 12 months before my client applied for an apartment, there were numerous crimes on the property, including physical attacks, shootings, death threats, and burglary. When I asked the property manager why he did not tell my client about these crimes, he responded “I’m not CNN.”
When the jury heard this testimony during trial, the testimony seemed benign because it was mixed with hours of other testimony the defense counsel designated, presumably in an effort to mitigate the damaging admission. But when the critical testimony was played during closing argument, the jury heard it in proper context, in the proper order and without any peripheral testimony. The jury actually gasped when they heard the edited testimony in closing argument.
Do Show Pull Quotes
Many cases have documents with critical language that may influence a jury’s decision. Rather than quoting the language during closing argument, attorneys should consider using a projector in conjunction with an elmo to display the language onto a screen. A more expensive (and impressive) option is to prepare a blow up of the document with the critical language appearing to jump out of the document (i.e., in a larger font and highlighted). I call this a pull quote. Pull quotes help the jury focus on the important language of the document and ignore what is not important. Elmos can be used to project all types of evidence onto a screen and should be used as often as possible.
Do Incorporate Charts, Graphs and Diagrams
Almost any demonstrative evidence used during closing argument is better than none. The goal is to keep the jurors’ attention. Attorneys should determine what types of demonstrative evidence can help the jury decide the case and consult with professional artists in creating them. Once again, if a case does not justify hiring an artist, an attorney can create simple but effective charts on a personal computer. It is almost always helpful to prepare a chart regarding damages, setting forth the types of damages at issue and the amounts the attorney wants the jury to award.
Some examples of charts I have used in closing arguments include: (1) a chart identifying the defendant’s inconsistent statements; (2) a chart showing the top 10 reasons why the defendant’s defenses did not make any sense; (3) a pie chart comparing sales figures of transactions at issue; and (4) a bar chart showing the defendant’s purchasing history.
I particularly like using artwork in closing argument to help tell the story of the case. My partner created a story board that exemplifies this technique. The first board shows three musketeers in blue jerseys smiling at each other with their swords held high, representing three companies who agreed to work together on a business transaction. The next board shows two musketeers in red jerseys talking with one of the musketeers in a blue jersey (with the other two musketeers in blue jerseys in the background), representing how one of our client’s partners was secretly negotiating with two other companies to steal the deal. The third board shows the traitor musketeer stabbing the other two blue musketeers in the back with a sword, representing the traitor musketeer’s decision to steal the deal for himself. The last board shows the traitor musketeer with the other two red musketeers smiling at each other with their swords held high. Everyone understood the theme that defendant had stabbed his partners in the back, despite the defendant’s promise to complete the deal with our client and the other partner.
Do Play Animations
If a case permits it, an animation can be useful not only during trial, but also during closing argument. Almost anything can be animated, from car accidents to the steps necessary to construct a concrete floor. In one case, my office created an animation for closing argument showing the hands of a magician moving shells around a table. One hand uncovered a shell to reveal the word “Covenant,” representing the plaintiff’s contention my client agreed to a covenant not to compete in a business agreement. Then, the hands move the shells around and uncover the same shell to reveal the words “No Covenant,” representing plaintiff’s statement on a tax return that my client did not agree to a covenant not to compete. The shell game was powerful.
Do Argue With a Theme
Ideally, closing argument will expand on a case theme introduced in opening statement. For instance, assume the case theme is: “This is a case about how defendant put profits before safety.” The closing argument should focus on how the defendant took shortcuts in a variety of safety issues which led to numerous accidents and eventually plaintiff’s death. Do not be afraid to argue in closing argument-juries expect it. Appealing to emotions is important if the case facts justify it. My experience indicates juries award higher damages when they are angry.
Do Argue the Evidence/Cite Consequences for Failing to Act
Even though a jury has heard all the evidence, it is critical to synthesize the evidence in closing argument. Merely summarizing the evidence is insufficient. The evidence needs to be argued. For instance, if the defendant had knowledge of a dangerous condition but did nothing about it, the trial attorney needs to remind the jury about the evidence and then draw a conclusion about it. The conclusion might be that the defendant was incompetent – or worse – intentionally ignored the problem because the defendant concluded that addressing the problem would be too expensive. There may be evidence that the defendant had an expensive bid to repair the problem and then decided not to make the repair. As a result of this shortsighted attitude, plaintiff was killed.
It may be appropriate to tell the jury the consequences of their verdict. For instance, if the jury does not award significant damages, the defendant will continue manufacturing cars that kill people. Making the case bigger than just the facts presented may tend to elevate the importance of the case and increase the damages award.
Do Argue the Jury Instructions
Pick out the top five or six jury instructions supporting your case and argue them. Sometimes it is helpful to enlarge the jury instructions or project them on a screen. Failing to argue the key instructions can be fatal because the jury may misunderstand them.
Do Tell the Jury How to Answer the Questions on the Verdict Form
I have heard war stories about juries congratulating the losing attorney because the jurors misunderstood the verdict form and thought they were voting one way when in fact they were voting the other. The best way to ensure the jury understands the verdict form (and answers the questions correctly) is to take them through the form, question by question, and fill in the blanks as you explain it. I like to project the verdict form on a screen during this process.
Do Ask for Money
Some attorneys believe they may sound greedy if they ask the jury for a particular sum of money. The problem with this analysis is that juries have no idea how much money to award for certain damages such as pain and emotional suffering. Left to their own ideas of compensation, juries will almost always award less than if the attorney had requested a particular sum. Accordingly, your closing argument should conclude with a specific request for damages. Of course, it is important to justify the request. There are many resources trial attorneys can use to assist in crafting arguments to support awards for general damages.
CLOSING ARGUMENT DON’TS
Don’t Attack Opposing Counsel
Attacking opposing counsel does not help your client and does nothing to advance your case. Moreover, you may offend the jury by making personal attacks.
Don’t Summarize the Evidence Witness by Witness
I have seen attorneys present closing arguments by simply summarizing the evidence each witness presented, witness by witness. This style is not persuasive. It is boring.
Don’t Bore the Jurors
Closing argument is supposed to be the climax of the case. It is your chance to be free from the rules that bound you during voir dire and the presentation of evidence. There are few rules that govern closing argument; accordingly, it should be fun to watch. If you bore the jurors, they may miss the point of your closing argument. Most jurors are accustomed to watching two minute closing arguments on television. If you plan to argue for an hour or more (longer than an entire episode of The West Wing), you better entertain the jurors or you will lose them.
Don’t Waive Closing Argument
I tried a case where opposing counsel waived closing argument. Never, never, never waive closing argument.
Don’t Overstate (or Fabricate) Evidence
Some overly aggressive attorneys overstate or simply make up evidence to support their closing argument. This can ruin your credibility and prompt a sustainable (and embarrassing) objection.
Don’t Object (Unless the Closing Argument is Really, Really Objectionable)
Most jurors find objections during closing argument to be rude. Accordingly, do not object unless opposing counsel makes a major mistake that prejudices your client. Sometimes it is better to let a mistake go by (such as a reference to nonexistent evidence) and address the mistake in rebuttal.
Don’t Read the Closing Argument
Some nervous attorneys read their prewritten closing argument to the jury. This is boring. If you use charts, graphs, etc., you will be able to free yourself from notes.
Don’t Get Personal
Do not refer to jurors by name or tell overly personal stories. You will make jurors uncomfortable, and they will lose track of your argument. Stick to your case theme.
Don’t Write Your Closing Argument at the Last Minute
Twice, I have seen opposing counsel drafting closing argument while I was presenting mine. This is a mistake. You cannot prepare a coherent closing argument on the fly. I prepare my closing argument before trial starts. Then, I modify the closing argument as the trial progresses, practicing it as often as possible.
Don’t Forget Rebuttal
If you represent the plaintiff, you have a “second closing argument” called rebuttal. Some plaintiff attorneys forget to take advantage of this unique opportunity to have the last word. While defense counsel is presenting his or her closing argument, take notes of a few points you can address quickly without reference to complicated evidence. When defense counsel is finished, the jurors are ready to deliberate, so rebuttal should be short and snappy.
This article first appeared in the OCTLA Gavel, Spring 2006.