Presenting an Effective Closing Argument
After assisting in the preparation and supporting the delivery of over 300 closing arguments, you might imagine I’ve seen some really, really good ones…and some really, really bad ones. Today’s post is about what makes an effective closing argument from the perspective of one who has seen all kinds!
The most effective closing arguments are not about retelling the story of the case. They are about the jury and the task the jury has before it. The most effective closings I’ve seen focus on deliberations, and they prepare jurors specifically for the questions that they will need to answer.
It has been my experience that jurors try hard to do a good job. They try hard to listen, take good notes, and distinguish between evidence and argument. After hearing openings, and after hearing numerous witnesses’ testimony, jurors are well aware of the story. Don’t make the mistake of feeling compelled to retell the story. There are few adults who want to reread a book or rewatch a movie, particularly if you’ve just finished the book or movie the day before!
The most effective closing arguments I’ve seen help the jurors put a framework around what they’ve heard and what they will need to consider in light of the questions they must answer. Hard as it may be, an effective argument must be done in light of what a juror might have at the top of their mind after sitting through all of the evidence in the case. This means you need to put yourself in their shoes. They’ve heard the testimony, seen the videos, reviewed the documents and now have the verdict form in hand. What questions would you have if you were in their shoes? What things would you be likely to have a strong opinion about after sitting through the evidence in the case? Are there two valid sides to a particular question?
This presents the trial lawyer with the opportunity to think through the evidence that has been presented and consider the overall “tone” of the trial which may, indeed, be looking at the case through a new lens. Throughout the course of the trial, keep notes of those occurrences in the trial that might give rise to valid opinions on both sides of the issue and address them. There may be several acceptable, valid viewpoints that have been presented. It will benefit your client if you are able to give the jurors the tools they will need to help them validate their opinions (or refute the opinions of others). Help them wade through the overwhelming amount of data they’ve been provided, juxtaposing opposing counsel’s version of the facts with your version. To be able to render a verdict in your favor, the jurors may need to weigh both sides of a particular fact and those wanting to rule in your favor will need to know how to argue your case with their peers. Present the benefits, the downsides, the likelihood or unlikelihood of particular facts and arm them to carry out your mission.
Instead of returning to the case story, address what the jurors will be expected to do now -- what they'll need to consider, questions they will ask themselves and others, and when there are facts you need them to have top of mind, give them a tool they can use to remember the arguments in your favor. Graphics that are pointed, brief and memorable will be of utmost assistance to them in their deliberations.
A narrative presentation in opening, introducing your jurors to the story they are about to hear, presenting them with a roadmap to the evidence they are about to hear and closing with a more targeted closing is consistently the most effective approach I’ve experienced.
TARGET YOUR CLOSING
There are three points I’d like to leave you with – things that have stood the test of time and brought the best results throughout all the trials I’ve supported:
1. Give the jurors the tools they will need to decide the issues with which they are faced. Using the verdict form as your framework, pile up all the reasons for the answer you want to each of the verdict form questions. Provide them with a targeted, bulleted list they can easily and quickly write down that will give them the information they need to fight for your position in deliberations.
2. Make the verdict form the structure or the framework of your argument. Make the choice to structure the closing based on the structure of the verdict form, starting with question one. That way, you are anticipating and framing the discussion they're about to have. All of the necessary story, recall of witnesses, use of exhibits, and instructions can be placed in context based on where they're likely to apply to the verdict. With this approach, you can become a coach to your jury.
3. Tell the jurors what they will need to think about – don’t tell them what to think. Nobody likes to be told what to think. Especially juries. And especially not by lawyers. For example:
State the question they will be considering: “You are going to ask yourself (cite a claim in your case).” Then, try to reframe the issue using a technique like this: “While that may make sense in a certain situation, here is another way to look at it: (reframe the answer to the question in a light favorable to your case).” Then provide them with the facts they need to come to the conclusion you want them to arrive at using something like this: “You are going to consider and discuss all of these questions, and I trust that you'll apply your common sense as well. But as you think about these questions, let me remind you of a few facts that you will want to take into account.”
When you speak directly to those controversies within the context of your specific verdict form, the jury will come away with a much greater understanding of how to apply the facts to the questions they face. This technique has proven to provide some of the most effective closing arguments I’ve experienced.
I hope you’ll try it – and if I can help you to walk a mile in a juror’s shoes, even just for a moment, I hope it’s been helpful.
THOUGHT FOR THE DAY…
“No man ever reached to excellence in any one art or profession without having passed through the slow and painful process of study and preparation.”