As a general proposition we, as trial lawyers, seek to demonstrate liability from beginning of trial through closing argument. Our primary mechanism for doing this is by first showing the jurors what the rules are, which defendant was obligated to abide by, and then demonstrate that the defendant did not play by those rules. We need to keep this concept front and center for our jurors at all points in trial. The defense will attempt to obfuscate and confuse the jurors into believing other issues are of importance. Don’t fall for this trap. It is important that you stick to your approach of teaching rules and demonstrating defendant’s violation of those rules throughout trial. Thus, you as plaintiff’s counsel, need to be defining the issues at trial. Don’t let the defense define the issues. Thus in closing carry on with this methodology.
To this end you should have all of your rules on your poster board in front of the jurors as you make closing argument. Here it may be a good idea to put the jury instructions on poster board as well. It is quite likely that the jury instructions will be consistent with your rules. This is to your benefit. So with those jury instructions on the board behind you, read them aloud to the jurors. Then go on to define the rule as stated in the jury instruction. Define the jury instruction in a way that is consistent with the rules which you have been teaching the jurors about all throughout trial. Then, after you have defined the jury instruction and explained to the jurors that this is what you have been teaching them all throughout trial you can then go on to explain how these rules were violated. Point out to the jurors all of the evidence which has been put forward throughout trial which demonstrates that the defendant has violated those same rules.
Rick Friedman makes a good point that we can use many of the boilerplate jury instructions which the judge inevitably gives to the jury, to our advantage. For instance, when the judge tells the jurors that their verdict may not be influenced by sympathy, passion, or prejudice, inform the jurors that you don’t want them to let any of these things motivate them. Explain to the jurors that this is why you have been focusing, throughout trial, on the standards of which the defendant should have abided by but did not abide by. Tell the jurors that they need to evaluate Defense Counsel and his arguments. Explain to the jurors that they need to decide if defense counsel is attempting to appeal to the juror’s sense of sympathy, passion, or prejudice.
You can similarly use most of the jury instructions in this way. Use them to your advantage by showing how plaintiff’s conduct is in conformity with those instructions whereas defendant’s conduct is not. One of the instructions will inevitably regard the burden of proof the jurors will apply in your case. Many good trial lawyers demonstrate what this preponderance of the evidence standard is by placing their palms upwards next to each other and explaining to the jurors that the burden is just “more likely than not”. They make this point visually by raising one hand just slightly higher than the other as they explain this “more likely than not” theme. Rick Friedman makes an excellent point that if you have an overwhelming amount of liability evidence then you may want to avoid this technique as it may cause the jurors to think that your evidence isn’t in fact so strong. Your showing the jurors how low the burden of proof is may imply that you don’t feel confident in your evidence. However it is still probably a good thing to use the hands technique. Just explain that you have presented much more evidence than is simply required by the preponderance standard. If the case is a close one on liability then of course you need to really push this “more likely than not” standard. To do this you can consistently refer to this “more likely than not” phraseology in opening, direct examination, cross examination, and in closing argument. You don’t want to take a chance of your jurors applying the incorrect standards in this instance.
Remember that when you deliver your closing argument you are not simply marshaling the facts past your rules to show that the defendant’s actions don’t pass muster. Although this is a big part of what you are doing both in closing and throughout trial, it is important that you don’t lose sight of the bigger picture. The bigger picture is that you need to need demonstrate “why” the defendant acted as he or she did. This means you need to discover the defendant’s motives and then put this into a telling story. It may be that the defendant violated rules because he or she was careless. It may be that defendant was greedy. It may be that the defendant was in a hurry and thus didn’t proceed with caution. Whatever that motive is, it needs to be explored and presented as a story to the jurors. You should be able to boil down what your case is about into one single statement. For instance, “This case is about a casino which chose profits over safety, by not adequately training employees”. So in closing tell your story and then fit your rules and rule violations into the story of your case.
There will be times when the rules or standards that defendant should have followed are disputed. If this is the case, you will need to spend more time in closing demonstrating that your rules are the proper rules. Rick Friedman gives a great idea as to how to do this. Rick tells us to put all of our evidence which supports our rules, including deposition transcripts, books, manuals and the like all in a stack on counsel table. Explain to the jurors that this is all the evidence which you brought to court which supports the rules. Then put the small amount of support the defendant brought to trial in a small stack next to your large stack. This is a great way to visually demonstrate to the jurors that the amount of support for your rules far outweighs the evidence which defendant brought to trial to support his position. Finally, you can tell the jurors that it is your rules which make the world a safer place and that it is the defendant’s rules which make the world a more dangerous place. Then tell the jurors that it is up to them to decide what kind of world they wish to live in. This is smart. Remind the jurors that if companies or people like the defendant followed these rules then they operate in the “safe zone”. If they choose to not follow these rules then people’s lives are endangered. Thus the rules are good for all.
This information comes primarily from the genius of Rick Friedman and Patrick Malone. These two are phenomenal and two of the most respected trial lawyers in the country. I recommend that you read any of their publications. In particular, Rules of the Road and Polarizing the Case are terrific resources.