Cases are rarely won in closing argument. When a case is won, however, it is often because the winning theme and facts presented throughout the case were artfully and persuasively summarized in closing.
The closing argument is the vehicle that allows the lawyer to convince and persuade the jurors that the decision they will reach will be right and just. It also provides jurors on your side with ammunition to argue with the jurors who are not with you. And, it is an opportunity for you to use the jury instructions that will be given to the jury by the judge.
A closing argument is dependent on everything that has occurred before it: The theme that has been established at the trial, the evidence that has been put in, the credibility that has been determined by the jury… The closing argument rests upon all of it. If the jury has not been persuaded, if the jury has not adopted your point of view in the opening statement, and if the witnesses have not been believed, then the closing argument will never save your case.
Years ago, closing arguments were fiery and dramatic. They were colorful and loud. Old war stories frequently recall with fondness the emotion that filled the courtroom during closing. Now, it is a new era. Studies show that today’s jurors expect a more rational and reasonable approach.
There are certain rules that must be followed to make your closing argument as effective and persuasive as possible:
(1) The introduction must be strong. The first one to two minutes that you address the jury in the closing argument are crucial. This is the time during the trial that you have the greatest amount of their attention — other than during that same one-to-two minutes at the beginning of your opening. The jury is receptive, poised and motivated. What you say during that period is crucial to the success of your argument. You must crystallize the facts of your case into a short and powerful message. Practice reducing your case to a telegram. Answer the simple and fundamental question: “Why?” Some examples are: “Susie could walk today if David Jones had not driven drunk.” “John’s surgery would have been successful if Dr. ____ had not been in a hurry.” “Eleanor would not weigh only 78 pounds if the nursing home staff had taken the time to help her eat.”
(2) Appear spontaneous. This is no time to be reading your argument to the jury. Plan the closing carefully, make a checklist of the points you want to make (starting and ending strong), and rehearse it often. But, do not look rehearsed and do not read it. You cannot expect the jury to be moved by your sincerity – your belief in your client’s case – if you must rely on written material in order to present your closing.
(3) Be sincere. The most valuable thing you can do in any case is honestly believe in your case. Avoid clever arguments or “cute” displays. Make eye contact with each of the jurors. Remember that the harder you push, the more you look like a huckster, and the more sales resistance you encounter.
(4) Use visual aids. Show the driver’s log or the accident report or the pictures of the injury or documents describing what happened. Diagrams drawn by witnesses help the jurors to recall that witness.
(5) Stay above the fray. Rely upon the facts, reasoning, logic and the law. Do not stoop to dramatic schemes that the jury would expect to see on television. A winning argument is not designed to make you look good – it’s designed to make your case look good. You want to be seen as the voice of reason, the person in the courtroom that the jury can trust.
(6) Empower the jurors. Help them understand that the case is important to the system and to the litigants. The jury represents the community, acts in the place of the community and bears the responsibility of making it right for that community. You want the jurors to understand the seriousness of their decision. They must see themselves as part of the judicial system. They are “temporary officers of the court.” Tell the jurors that they are participants in a process which is priceless in a democratic society. It is trial by jury, which is a constitutional right, and each of the jurors is important. A jury is where we have put our trust. Tell them that nothing they do will ever have the impact of their verdict today. Their voice will never be heard so loudly in your community.
(7) Explain the burden of proof. Talk about the various burdens of proof. Explain that the criminal burden of proof – beyond a reasonable doubt – is much higher than our burden. Describe the middle burden, then our civil burden. This is a significant part of your closing and must be given sufficient time and attention.
(8) Use jury instructions. Be sure to explain what the jury instructions are and that they will be given to them by the judge. Let them know the judge has approved them and that the instructions will guide the decisions that they make during the deliberations. Refer to the jurors as the triers of fact and link their performance to the jury instructions. Show the critical jury instructions to the jury via transparencies or PowerPoint and underline key words. Emphasize parts of the law that are important. For example, emphasize that their verdict must not be based on guess, speculation or conjecture. Tell them that emotions should not be the basis of the verdict. Wrap yourself inside the jury instructions to show the jury that the instructions are crucial to your case and that you embrace them. Make sure that during this process, you cover through the appropriate jury instructions the most important part of the trial, which is what the defendant did wrong and why.
(9) Rely on facts. Facts, not arguments, win cases. Support your statements with brief comments from testimony, and sometimes show testimony to the jury. You must remind the jurors of critical testimony. But, you also must be mindful of sensory overload. Pick out the best, strongest, most persuasive testimony and show it to the jury. Talk about other facts that came out during the testimony.
(10) Be understandable. Use simple, imperative language and be clear and concise. You want to connect with your jurors, and to do so, you must use language everyone can understand. Choose your words carefully. Simple words are best. The fewer words, the better. Words with powerful images make the strongest impression.
Above all, the rule of basic sincerity applies to the whole trial, including the closing argument. If you don’t believe it, don’t say it. If it isn’t you, don’t try to be someone else.