Want your closing argument to impactful and memorable? This article provides recommendations and tactics for a successful closing argument.
What Should be Included in the Closing Argument?
Use Technology. If you don’t know how to operate the court room projector/monitor, or how to use your lap top in the court room, go spend a few hours and learn those mechanics. We live in a technology driven, instant gratification society that expects you to present information and evidence in an informative and quasi-entertainment manner. Most Americans can’t spend ten minutes without checking Facebook or Twitter. Do you think these same people are going to listen to your boring tirade for forty-five minutes.
Make it Memorable. Begin and end with emotion. Jurors often remember the first and last things that they heard. Your beginning and ending sentences/phrases should be memorable. Appeal to the emotions of the jury, if the case warrants an emotional response. End the summation with strong closing remarks.
Reference the Facts and all Inferences Related to the Facts. It doesn’t get more basic than arguing the facts that came into evidence during the course of the trial. Go through the evidence received through the witnesses and the documents. Focus on the facts that help your position. Focus on your star witness and the segment of testimony that makes your case. You should also focus on the deductions and inferences that the jury should take from the evidence. Stay within the evidentiary boundaries and do not argue facts outside of the record.
Reference Specific Evidence. You should review key pieces of evidence. Include documents, photographs, expert testimony, and witness testimony. You can’t review everything that a witness said. Be careful not to repeat all of the chronological events of the trial. Hit the testimony highlights and the “smoking gun” phrases that establish your case. Consider quoting the testimony during closing argument with a pull quote (displayed on a projector/monitor ). If you have a great document, put it on screen and point out the important language to the jury. Many people are visual learners and the jury will likely respond better if they can make a visual connection to the evidence. Finally, if certain exhibits were admitted into evidence that help prove your case, tell the jurors that they have a right to examine the exhibits during their deliberations.
Expose the Credibility of the Witnesses. Often, the jurors will form opinions about the credibility of each witness that testified at the trial. As an advocate, you should help them along with their subjective opinions. Do not waste this opportunity to point out any bias, prejudice, interestedness, rudeness, or unreasonableness displayed by each witness. Be careful not to provide your opinion about the credibility of a witness. Any criticism or glorification of a witness should be based on the facts and the evidence.
Continue with the Theme of the Case. Discuss the continuing theme of the case. The theme began during voir dire. For instance, assume the case theme is: “This is a case about how Paul Payne refuses to honor his obligations.” The closing argument should focus on how the defendant continually breached the contract and lied to the plaintiff. Discuss the theme and remind the jury how the theme was established during opening statement and how the theme proceeded throughout the course of the trial.
Continue to Educate the Jury. This is your last chance for the jury to adopt your theory/view/position as their own. During deliberations, you want the jury to argue their beliefs, which are in essence, your beliefs.
Walk Through the Jury Charge. It is best to walk the jurors through the Jury Charge. Ask the jurors to place the Jury Charge in front of them. If the jurors do not have the Jury Charge in front of them, use a projector/monitor to display the Jury Charge during closing argument. Address each question and provide an answer to each and every question in the Jury Charge.
Things to Avoid. There are a few areas that you should avoid during closing argument, as follows:
- Don’t Bore the Jury. Use technology and be persuasive. Be creative and entertaining. Focus on a style that is not boring.
- Don’t Embellish the Evidence. Overstating the evidence and/or lying about the evidence presented can put you in a bad spot. Stick to the evidence that was admitted by the court.
- Don’t be Unprepared. Write your closing argument before trial. Modify your outline as the trial progresses. Don’t wing it at the last second. Don’t read from a script. Practice your closing argument before trial starts. Closing argument is not the time for the first rehearsal. Practice to performance
Length and Style Tactics.
Time Limits. I have been in different trials where the judge gives each side the following: (1) 20 minutes to “sum up” the case; (2) so many minutes per day of testimony; (3) an agreed amount of time between the parties; and (4) an unlimited amount of time. The court will likely take the following factors into consideration regarding the time limits for closing argument: (1) the number of witnesses, (2) the length of the trial, (3) the evidence presented at the trial, (4) the complexity of the testimony and evidence, (5) the length of the jury charge, (6) the complexity of the issues, and (7) the amount of damages. It is best to find out before trial how much time you will receive for closing argument.
Other Restrictions. Does the court limit: (1) the style of the closing, (2) the location of delivery of the closing (lectern, counsel table, proximity to the jury box), or (3) use of demonstrative aids and exhibits? It is best to find out before trial what type of restrictions will be applicable to closing argument.
Stylistic Considerations. Creativity is key. Think about using literature, novels, speeches, music, movies, theatre, and television as a basis for style. Be energetic. Communicate your belief in the theme of the case. Tell the story. Project trust, competence, humanity, and comfort. Which rhetorical devices should be used? How much body langue should be used? What volume level should be used? Fast or slow delivery? Think about pronunciation and articulation. At the end of the day, you must settle on a style that is comfortable and appropriate for the theme of the case.
Have the jurors answer the question in their own minds. Present the facts in a certain manner that allows the jurors to take ownership of the conclusions that they reach regarding the evidence. It is effective when the jurors can answer the question in their own minds.
Technology. How much technology should be used? Is the closing too tech heavy? Are too many exhibits, pull quotes, and pictures being used? Think objectively about the use of technology.
Use of Pace and Voice Inflection to Emphasize Key Elements.
Lower your voice. Try lowering your voice to a point where the jurors have to listen closely to what you are saying. Not too soft that they cannot hear you, but not too loud, as if from a megaphone. This style can be very dramatic and persuasive when used in moderation.
Pause. Try pausing after making a good point to dramatically underscore a specific point or theme. Ask a rhetorical question, let the question sink in, and then wait three to four seconds before you answer the question. It is important for the jurors to reach their own answers. Thus, you will agree with the answers of the jurors after you provide your answer. Moreover, a brief pause can also be used to evoke the undivided attention of the jurors before making a specific point.
Group Rhetoric. Don’t over use the words “I” or “You.” Argue the summation as if you are a member of the jury. Rather than saying, “You know what Paul Payne said about that contract,” say “We know what Paul Payne said about that contract.” Rather than saying, “I saw the way Tom Thief rolled his eyes during that question,” say “We saw the way Tom Thief rolled his eyes during that question.” Using words like “We” and “Us” empowers the jury and allows you to make yourself a part of their group. However, don’t overuse “We” and “Us” to the point of grammatical absurdity.
Phraseology. Common phrases may help drive home an important point or connect the jurors to your theme. You can surf the web for American phrases, biblical phrases and philosophical phrases to use during closing argument. For instance, using the phrase “Does that make sense?” allows you to put testimony and/or evidence in a certain light wherein you can allow the jurors to either reject or accept such testimony or evidence. Also, using phrases like “Don’t you know” and “Don’t you think” allow you to comment on opposing counsel’s failure to prove a particular element or present a piece of evidence. “Don’t you think you would have been shown the email if it actually existed?”
Addressing the Weak Points of the Case.
Don’t ignore the negative facts! Bad facts are likely to come to light at trial. You must embrace the bad facts and address the weaknesses of the case. Be prepared to explain the bad facts, which will: (1) defuse the arguments of opposing counsel, and (2) provide additional support for the credibility of your theme. Tell the jury why your client wins, even though negative facts and issues have come to light.
This article is for informational purposes only and is not intended to be a substitute for legal advice. Specific questions and circumstances regarding the issues addressed in this article should be individually discussed with legal counsel.
Adams, Lynch & Loftin, P.C.