Each element of the trial process requires its own unique approach. Closing argument is no different. The very phrase “closing argument” is a bit of a misnomer, at least if you follow the approach recommended here. The reason for this is that we, as plaintiff’s trial lawyers, really shouldn’t be “arguing” here. What we know from studying jurors is that by the time we have reached the closing argument portion of our trials the jurors have already made up their minds. The jurors, have by this stage, heard all of the evidence. The jurors have gone home and come back to trial and gone home and returned to trial several times over by now. The jurors have had substantial time to think over the evidence which has been presented to them. They have had the opportunity to discuss the case with their family and friends. The jurors have by this time thoroughly considered all the facts at issue and reached a conclusion. Thus, when we, as trial lawyers, try to argue and persuade our jurors in closing argument we earn the disdain of our jurors. Jurors, at this stage in trial, are tired. They are ready for this trial to be over with so they can return to their normal lives. The jurors don’t need a recap of evidence at this stage. They have heard the evidence for days now and don’t wish to hear anymore.
Given that we know that jurors are tired and want to go home by this stage in trial we know better than to waste your breath giving the jurors a bunch of useless statements about how grateful we are for their patience and for their fairly balancing the evidence and what not. In fact, don’t waste your breath with any such language at any time in trial. Jurors don’t want to hear you ramble on about useless niceties. Jurors want to hear what they need to know so that they can make an intelligent decision in deliberations. Beyond this, they want to go home. So don’t aggravate the jurors with these superfluous speeches.
To begin your closing, you need to go over the big picture points of evidence which support your case. If your case allows for it then use a timeline in closing. Use a demonstrative to lay out your timeline and the points which prove your case. Then briefly speak on all the big picture evidence which supports your major points. Do not rehash the evidence to the jurors here. Jurors have heard all the evidence. Any attempt to do this will be perceived as an insult to their intelligence. The jurors simply need big picture concepts here. Use laymen terms to describe these big ticket items of evidence. It is probably a good idea to use a separate demonstrative for each of your major evidentiary points. You want the jurors to be able to repeat your same points in deliberations. Thus, to this end, use words and concepts that translate easily and which can be passed along by the average listener to other jurors in deliberations. This goes along with the other general advice of always speaking to your jurors with common language. Don’t be a lawyer in the courtroom. Be the jurors father, grandfather, nephew, best friend, be anybody other than a lawyer trying to persuade the jurors. As always, never use legalese when speaking in trial. Given the fact that 95% of your jurors will have already made up their mind before you even open your mouth in closing it is critical that you follow up this portion of your closing with the next segment which is to teach your jurors how to argue for themselves in deliberations.
We know that it is a bad idea to try to persuade our jurors in closing argument. This is not the tactic to employ. The true and correct tactic is to give your jurors, which you have already won over in trial, arguments which they can now take with them into deliberations. Remember that most jurors don’t spend their days arguing points as lawyers do. Jurors are typically not versed in the art of persuasion. As lawyers we learn to boil down our arguments into important points. Jurors are usually not accustomed to doing this. Thus, it becomes our job to be the teacher in the courtroom once again. We need to teach our jurors how to argue points in deliberations.
To begin the teaching process, tell your jurors at the beginning of your closing that they are going to have two jobs when they go into deliberations. David Ball recommends that you use this “two job” speech so as to grab the attention of the jurors, who otherwise will be nodding off. This will be new information for your jurors as they at this point in trial have no idea that they have another job to do beside that of deciding the case in deliberations. Upon hearing of a second job their ears will perk up. You then tell the jurors that the second job they will have to do in deliberations consists of explaining their logic and reasoning for their decision to the other jurors. It’s likely that your jurors hadn’t really contemplated this job before you said it. After you have gained the attention of your jurors you can take the next step of teaching your favorable jurors the arguments they can use to persuade the remaining jurors in deliberations.
Of fundamental importance in closing statement is that you educate your jurors on the jury instructions. We call this “massaging” the jury instructions. Jury instructions are convoluted at best, even for lawyers. These jury instructions might as well be in a different language when first presented to the jurors. It is for this reason that you need to interpret these instructions for the jurors so that they can actually understand these instructions. After you have educated the jurors on these instructions you can go on to the next step which is to demonstrate how your evidence fits into these instructions. Show how applying the facts of your case to the jury instructions at hand leads to no other conclusion than that of a strong verdict in your client’s favor.
Throughout trial you have made a point to not advocate by use of emotion. You haven’t pitied your client. Jurors get turned off by your attempts to persuade them by use of emotional appeal. This is especially the case early on in trial, before you have eared the trust of your jurors. To persuade in trial use logic and reason not emotion. Jurors are looking for any reason not to trust you and they know that you have a horse in this race. So don’t try to use emotion to persuade until closing argument. If you feel that you have earned the trust of your jurors then you can begin to humanize your client in closing by speaking of your client’s emotional state. That being said, jurors do not like whiners. Jurors don’t like plaintiff’s who seek pity from the jurors. Thus, make it a point that you are advocating on behalf of your client solely because it is your job to do so. Your client would never ask the jurors for anything, but you as an advocate must do so. On this same note, remember to present your client as someone who perseveres in the face of adversity. Jurors love fighters. They love Plaintiffs who don’t give up. Thus, always present your client in the light of a fighter who won’t give up despite the cards stacked against her.
Although you are going to have a very challenging time changing an adverse juror’s mind in closing there are some techniques that can help you in this endeavor. First of all, determine what the characteristics of your adverse jurors are by reviewing your voir dire notes. You will see that some of your jurors carry with them preconceived notions which are adverse to your client’s case. In closing, and throughout trial for that matter, don’t try to change the juror’s perspective as this will not work. Instead, try to differentiate the facts of your case from the facts in which the juror carries negative preconceived opinions. This takes some thought but can be achieved with a little patience and consideration.
Remember that throughout trial you need to be observing your jurors. This is especially the case when you get a chance to observe the jurors outside of the courtroom. Watch the jurors and observe which of these individuals are leaders, and which are the followers. The leaders are very powerful in deliberations. These are the ones you want to be speaking to in closing. These are the individuals who you want to arm with strong arguments. So look them in the eye when you give them the arguments they will need to use in deliberations.
As a final note, remember to make your case bigger than simply the facts of the case at hand. Make your case about policy. Make a point that the jurors have a tremendous amount of power in their verdict. Let the jurors know that their verdict will determine if the Defendant will be able to carry on with this same behavior in the future. Tell the jurors that there is a way that they can put an end to behavior such as the behavior of the Defendant here. The one way they can do so is through a large Plaintiff’s verdict. Remind the jurors that this is their opportunity to make a significant change in the way the Defendant and similarly situated individuals carry on in the future.
This information, on closing argument, came to me by way of David Ball. David Ball is a tremendous trial advocacy teacher as well as an astounding jury and trial consultant. He has written numerous outstanding books and he puts on excellent lectures in various cities across the country. If you have the opportunity to read any of his books or attend his lectures I strongly recommend that you do so.