Closing Argument

The closing argument is one of the most important parts of a trial. The entire trial leads up to the summation. The argument is especially significant if the outcome of the trial is too close to predict. At that point, all that matters is the attorney’s last minute attempt to persuade the jury to find in favor of his or her client. This article offers some basic advice and a general outline that should be considered when preparing for, and presenting, the closing argument. During the summation, all of the evidentiary pieces should be brought together and the case should be presented in a strong, fluid and persuasive manner. All points that help prove the elements establishing the theory of the case must be fully explained. The closing should be performed in a simple, yet precise way. The podium should not be used. Instead, walk around freely. The use of a podium blocks communication and sends a message to the jury that there is something between you and them. Closing argument should be presented without notes or with as few notes as possible. If notes must be used, then use flash cards or very well organized papers so that you are not fumbling through documents when closing the case. Stand no closer than six feet from the jury. If you get too close, you will be encroaching on the jury’s comfort zone and may cause them discomfort. Begin the closing argument with a basic greeting. Almost all trial attorneys will thank the jury for their patience and attention before formally beginning the summation. This should not be done in a patronizing way, but sincerely and honestly. You should also explain what the summation is all about. A road map should be given to the jury explaining what is going to be done and how it will be accomplished. Use simple and plain english. Leave legalese at the office. Avoid using excessively flowery language or complex legal terms. If complex scientific, medical or legal terms must be used, make sure that those words and terms are completely explained and defined well before they are used in context during the closing argument. Next, discuss the difference between a civil and criminal trial. The jury should understand that a civil trial is not conducted like a criminal trial and that at the end of the civil case, no one will go to jail or lose any privileges. The jury should understand that what is being sought are money damages. After that, discuss the standard of proof. Compare and contrast the standard of proof in civil cases from that of criminal cases. Examples of how the standard of proof works in civil cases should be provided. For instance, the trial attorney should explain that the greater weight of the evidence is like the scale of justice. That is, if the scale tilts to one side just a little bit, that is enough to be considered the greater weight of the evidence. Other examples may be used such as the difference between 51% and 49%, etc. These examples will help the jury understand the standard of proof and how to decide the case. Follow that discussion with a complete and interesting explanation about the basis of the law suit. A short summary of the theory of the case and the establishing evidentiary facts should be presented to the jury at that point. Deliver this portion of the closing as if telling a story. After the general picture is fully painted, break down the case by elements in the order that they will be presented to the jury in the instructions. For example, in a negligence case, the attorney should explain what the elements of liability are and how the elements were met or not met in the case. Show how the evidence supports the theory of the case. The testimony of the witnesses and the documented evidence supporting the claim should be discussed at that point as well. It is important not to rehash all the evidence presented during trial. If the entire case is presented during closing, this will become too boring and the jury will be put to sleep. Instead, point out the highlights of the testimony and the key pieces of the evidence in the trial. Never misstate the evidence or your position in the case. Jurors do not forget these things, and collectively, they remember everything that happens in the trial. As a group, jurors see and hear it all. Jurors can and will forgive a lawyer if he is kind and honest, but if they think the lawyer is lying to them or misstating the evidence or the law, the jury will never forgive that lawyer and the client may suffer as a result. Make sure that demonstrative evidence is used when explaining the key points in your case. The jury will need to see and hear the important parts of your argument. The use of demonstrative evidence greatly increases the effectiveness of the closing argument. It will allow the jury to fully understand the case. It is important to anticipate the arguments that may be made by the other side. Prepare to rebut those arguments before they are made. Nevertheless, avoid attacking the other side’s attorney directly. Juries do not appreciate this type of argument and it often backfires. Thus, DO NOT engage in a personality battle with the opposing party or counsel. After completely discussing the elements of the case and your client’s right to prevail in the lawsuit, move on to discuss damages. For the plaintiff, this is an extremely important part of the closing argument and cannot be rushed or discussed in a haphazard or unorganized way. At least 35% of the time allotted for closing argument should be devoted to a thorough discussion of the damages. After the damages presentation, the jury should be fully convinced that your client has sustained significant harm and should be compensated. If properly presented, a significant verdict may result. Conversely, if representing the defense, the argument should focus more on the liability aspect of the case. The defense should discuss damages in a purely logical and mathematical way. The defense should remind the jurors not to reward the plaintiff, but solely to compensate the plaintiff and only if liability exists. Some defense lawyers believe that no particular amount should be discussed during closing argument when defending damages. This has proven to be effective for many defense attorneys, but it is also a very dangerous practice. If the jury plans to award the plaintiff a compensatory award, and the defense does not discuss specific amounts, the jury may feel obligated to award the amounts suggested by the plaintiff’s attorney. Instead, a defense attorney may want to argue that no damages should be awarded, but that if damages are awarded, the amounts should be based on realistic figures. A sincere and conservative discussion of damages should then follow. After damages are discussed, you should conclude the closing argument with a strong ending. The heart of the case should be proclaimed, followed by a request that the jury find in favor of your client. Thank the jury for their attention, then sit down at counsel table and appear confident that justice will be served. Always remember to deliver the summation convincingly, clearly and in an organized manner. Great closing arguments are rarely spontaneous. They require proper preparation, organization, practice, and inspiration. If delivered properly the closing may make all the difference in the result of the trial. Thus, you should devote sufficient time and effort to properly prepare the closing argument.