Closing Argument: Plaintiff's and Defendant's Perspectives
By: IRA H. LEESFIELD
2350 SOUTH DIXIE HIGHWAY
MIAMI, FLORIDA 33133
Closing argument is your last opportunity to communicate directly with the jury. It is the last impression they will have of you as an advocate and your client's theory of the case. All of the testimony you have presented has served to provide the framework for this event. Now it all gets brought together in one complete package. Closing argument is the story of the case as proved from your client's perspective. A great closing argument will not win a case that is otherwise lost but a bad closing can lose a case that should have been won.
The closing argument needs to be the best prepared part of the case, yet it is the one part which you cannot prepare in advance. You have a general idea as you start your case what you will want to ask the jury, but the specifics are dictated as the case unfolds. You must have the flexibility to assess strengths and weaknesses of the case right up until its your turn to speak.II. Common Denominators: Plaintiff and DefenseA. Common Values
What common denominators are present in every case that we have to reach out to and we have to feel for? One is the recognition of the self-respect and dignity of an individual. Another common denominator is that truth is admirable and falsehood is despicable; that industry, thrift, hard work are the acceptable ways and means to success; and that laziness, shoddiness and poor workmanship should not be tolerated. A third such trait among Americans is that they are patriotic; they revere the Constitution and the Declaration of Independence. It is also well accepted that we pull for the underdog and never count anybody out without giving them a chance.
Jury studies have shown that the prime ingredient that is expected and demanded from trial lawyers is sincerity and believability. Another trait that is universally respected is the payment of obligations and commitments. Utilization of this trait in a wrongful death case from a plaintiff's perspective, could be along the following lines: We come now, ladies and gentlemen, to the grim, grizzly audit of death . . .
In a personal injury case, this type of argument would stress making the plaintiff whole.
From a defense perspective, remember that the closing is the defendant's first chance to assess the amount of damages claimed by the plaintiff and the rationale. It will determine how you address damages. Were the figures outlandish? Did they spark a jury reaction? How did the plaintiff reach the figure, was it a logical progression? Were they covered at length or were they only touched upon with an eye towards rebuttal?
Charity is also part of the value system but psychological studies show how it has a very low priority. It is considered an obligation of the conscience. It is equated with cheapness rather than generosity.
Of all the virtues and common denominators, the highest of all is centered on justice. It is established through jury studies that the search for justice is the noblest aspiration and the goal of jury service. The approach should be not to give the plaintiff something just because he is here, and we are sorry for him, but only because he deserves something. We want the verdict to be a full, fair measure of justice and we want summation to represent this objective.B. Basic Organization and Considerations:
1. Time/General Observations:
First, you must know how much time you are going to have. Know the judge's policy on cutting off the argument. Does he make you stop in mid-sentence? Will he give a few minutes to complete a thought. Either way, plan to speak for less time than you are given. Nothing is more appreciated by a jury than a lawyer who knows when to stop talking. Again, you want to know when to sit down. Nothing is more anti-climactic to a case than a lawyer who spends his time repeating and repeating himself until someone, usually the court clerk, tells him to sit down.
Defendants should always remember that the plaintiff is going to speak before you and after you. Let the jury know that the defendant only gets one chance and has to cover everything at once. It is sometimes thought that speaking only once can be an advantage. It can give the defendant the appearance of the underdog, having to do more with less. Plaintiff's attorneys sometimes let the knowledge that they can correct their mistakes later become a crutch and are not as sensitive to their timing as they should be. The defendant cannot afford this luxury.
Both sides must know the law of the case. Know exactly what instructions the court is going to give. Be prepared to discuss them in your closing.
Know the names of the witnesses who gave testimony, especially the parties, especially your own client (this is especially true for defendants). Know the pertinent dates and times of the events in the case. Know the proper pronunciation of the names and key words you will be using.
2. Organization of your closing
(a) Make sure that you catch the attention of the jury. Say something of interest. Start building your theme right from the start.
(b) Make sure you lay out the facts before the jury. Keep terms simple.
(c) Explain the theory of the case as it is applied to your facts. This is really where you build your theme.
(d) Set out the law that supports your theory and what is the proper burden of proof. Make sure that both are stated in such a manner that a lay person would understand.
(e) Explain the damages, specifying each type that can be awarded.
(f) Final remarks should be spoken for their maximum impact and stated with confidence.
3. Recommended Strategies:
(a) Tailor closing to your personal style and the facts and type of case.
(b) Reason and discuss the theory, facts, and law with the jury. Beware that you do not argue at them.
(c) Personalize your client because the jury must be reminded that they are making a decision that affects the life of a real person.
(d) Link your closing to what you told them in the opening.
(e) Plaintiffs should let the jury know that they are here specifically to right a wrong and that it is within their power to do so. Defendants should argue against permitting another wrong to be committed.
(f) Use emotion carefully. If the witnesses have been emotional then closing may be most effective if it is not.
(g) You may wish to use a damage chart to explain what damages are available and methods that could be used to compute them.C. Pointers for Plaintiff
1. When discussing lost earning capacity, you may want to stress qualifications and that even though working part-time or at a low paying job now, that person may want to work full-time or at a higher paying job later and are foreclosed because of the injury. Everyone has a right to try to improve.
2. If psychological damages are proven, stress the effect of the injury in the injured person.
3. Describe the present life of the person in terms that the jury can comprehend and understand.
4. Break the damage figures down into understandable numbers such as per diem, what experts are paid, how much the product costs, etc.
5. Explain life expectancy and that this award must contemplate costs in ten, twenty or thirty years. Analogize to cost of things twenty years ago (perhaps what the defendant's product sold for).
6. Use exhibits carefully - hold them up, touch them, tell the jury they can take them back with them.
7. Dealing with pain - it is natural and an accepted human tendency to avoid the subject of pain as Shakespeare recognized many years ago, "they jest at scars who never felt the pain." For these reasons, the effective use of the analogy is a most effective weapon in relating the concept of pain to the jury during the summation. Some effective analogies include the following: Now what is pain? Pain is many things. Pain is the opposite of pleasure. A philosopher once said that happiness is freedom from pain. Shakespeare said about pain, "Of all the philosophers, I have never seen a philosopher yet who could bear a toothache patiently." Pain is many things and many people have had much to say about it. Some have said, "If G-d is mercy, then what is pain? Pain is the devil." This difficulty is well expressed in Virginia Woolf's essay "On Being Ill":
"English, which can express the thought of Hamlet and the tragedy of Lear, has no words for the shiver and the headache . . . The merest schoolgirl, when she falls in love, has Shakespeare and Keats to speak for her but let a sufferer try to describe a pain in the head to a doctor and language runs at once dry."
"Pain is a window looking into hell. It is the blood brother of death. Many men in pain have prayed for death but nobody has ever prayed for pain."D. Pointers for Defendants
Listen carefully to the plaintiff's closing. Do not get so wrapped up in what you are going to say that you forget to hear what is being said. It is not a good idea to object too often to the closing argument of the other side. It is really perceived as rude. It should be done sparingly. But always remember that arguments which are in error are not preserved unless objected to in a timely fashion.
From the defendant's perspective, certain areas always bear watching: First, the Golden Rule, arguments which invite the jury to place themselves in the plaintiff's shoes in perceiving damages. Second, arguments which suggest that the jury "send a message" to the defendant or the community need to be addressed right away. Finally, undue hysterics and melodrama should be objected to immediately.
Do not let the plaintiff dictate your closing. Do not spend your closing addressing the plaintiff's closing argument. Make your closing about your case. Point only to the glaring omissions or mischaracterizations made by the plaintiff. Before you speak make sure any charts or drawings used by the plaintiff in his closing are not left up and visible to the jury. If he wrote on the blackboard, have it erased, preferably by the bailiff, start your argument fresh. (Plaintiffs should remember this same advice on rebuttal).III. Structure of the Closing
The best way to prepare an outline for closing is to begin at the beginning of the case. (Defendants should start with the plaintiff's opening statement). Review the witnesses who testified in order. Pick out the key witnesses from both sides. Be prepared to highlight the weakness of your opponents witnesses and the strengths of yours. Identify the weaknesses in your own case. If they have a rationalization, be prepared to address them in your argument. You take a lot of sting out of these issues when they jury knows that you want them to have the whole case, good and bad, and still find for the client.
Go over the jury instructions and jury verdict. Be prepared to discuss legal issues in plain English).
The jury likes to know that you appreciate their role in the case. Speak to them as equals. Do not patronize them or speak down to them (defendants should not spend too much time thanking the jury or it often seems like sucking up.
Define the issues for the jury. Bear in mind what path the deliberations will take. The jury will be asked to consider specific issues. You should explain how the facts and law require that those issues by resolved in favor of your client.
Summarize the facts that have been presented through the evidence. Stress how these facts have confirmed the representations that you made in opening. Point out where your opponent has not been able to support statements made in opening. Explain the areas where your case has had weaknesses. Do not concede too much, you are still an advocate. Now is the time to discuss witness credibility. Point out omissions which opposing counsel may have made in discussing the facts. Discuss conflicting testimony and encourage the jury to examine the testimony themselves. Remember that you are entitled to make fair comment on the reasonable interpretation of the evidence.IV. Presentation
Understand going into your argument that you are not going to read your closing to the jury. Know also that you are not going to just make it up as you go along. Have an outline, either written or mental. Take as few notes up to the podium as you can, an outline maybe, or a few key thoughts. If you know your theme and direction by heart you will not be as tempted to lose contact with the jury. If you have visual aids or specific pieces of evidence you wish to show the jury, have them close at hand before you start. If you can avoid using a podium at all, that's the best way.V. Strategies That Should be Avoided
1. Do not misstate or twist the evidence.
2. Do not attack your opponent or risk the jury sympathizing with them.
3. Do not criticize the judge.
4. Attempt to ignore objections and do not let them throw you off.
5. Avoid speaking with big words or legal terms.
6. Do not oversell your case.
7. Do not drone on or get caught up in the little details.
8. Do not state personal beliefs.
9. Do not shout or be falsely emotional.
10. In a catastrophic case remove the client from the courtroom.VI. DamagesA. Plaintiff's Perspective: Getting a Full Measure of Justice
In many circles nowadays, it is fashionable to talk about runaway juries, and skyrocketing verdicts. The insurance industry is spending millions of dollars in its effort to influence jury verdicts. It is the trial lawyer's responsibility to overcome these forces by demonstrating the fact that pain, suffering, medical expense and hospitalization expense are just as vulnerable to inflation as are the costs of gasoline and groceries.
Remember the law of recency which has been illustrated on a learning curve familiar to educators and psychologists in evaluating any memory or learning situation. The last heard fact or concept is the one that is most easily remembered. Always end on the highest possible note. In other words, reach a climax with the conclusion of your summation.VII. Strategies where Punitive Damages are Involved:
1. Consider arguing that when a manufacturer has knowledge that the product is dangerous but continues to design the product the same that it is making the plaintiff subject to an unacceptable risk.
(a) Argue that during this period of time the defendant not only continued production knowing of the products dangers but it also advertised the virtues of the product which downplayed those dangers.
(b) Find out how much is spent on advertising and argue that a portion could have gone for a safety remedy when the defendant had prior knowledge of the danger.
2. Argue that shouldn't the defendant have to pay for "gambling" with the plaintiff's life and actual compensatory damages only serve to become another cost of business and will not deter the behavior or the gamble. (They calculate value of this injury).
3. Only way to send a message to corporate boardrooms is to hit them with a punitive award:
(a) Force the board to analyze and remedy the dangers of their products or practices;
(b) Public cannot know what happens in a boardroom and the only way to influence what goes on in there is an award of money since that is their vulnerable point.
(c) Will force the discussions of solutions and preventions since the board is answerable to the stockholders.
(d) The board also acts for the corporation which would ultimately benefit from unpunished misdeeds.
4. Point out that punitive damages are not new but have been in the judicial system as long as there has been outrageous conduct and greed.
5. Let the jury know that it will not just be the plaintiff benefitting but the entire public which will ultimately benefit.
6. Make analogies that involve the jury and they can relate to it becomes "we", "us" instead of them and that damages award serves not only as compensation but to deter and punish because if there is no punishment there is no deterrence.
7. Do not let the jury get caught up in the corporate mystique and thinking just because it is big and complex it must be "right"; might analogize it to the government and how we know that it can do wrong and it takes courageous people to put a stop to it. Use other analogies of corporate ideology gone haywire.
8. Point out that even though the plaintiff and defendant are given equal treatment under the law, the plaintiff is not equal outside the courtroom and to avoid that exploitation requires punitive damages to prevent outrageous conduct.
9. If the manufacturer seeks to assert that his product is the best on the market, point out that you have just proven it is not, show what you proved was wrong with it but defendant just will not admit it.
A. Defendant's Perspective: Damage Question
It has often been said that the discussion of damages is the most controversial decision a defense lawyer must make. The right touch in this area can make or break a litigator. The decision on how to address damages is made on a case by case basis.
Some thoughts should always run through your mind. Should I even dignify the plaintiff's figure with a comment? If I do not mention the plaintiff's figures have I given tacit approval? Should I suggest a figure and in effect give the jury the lowest figure for their award? Can I reasonably suggest no award and still maintain credibility with the jury?
Finally, on damages, remember a gamble always exists. How was the plaintiff's discussion of damages in his initial closing? Was it well delivered? Did it have impact? Was it hastily tacked on as he ran out of time? You may gamble and not address damages at all in closing. This precludes the plaintiff from revisiting them in rebuttal. Since you made no argument, there is nothing for the court to allow the plaintiff to rebut. It is risky but, sometimes pays big dividends.VIII. Final Thoughts
As with most sections of the trial the closing argument needs to be pointed towards a specific end. It should have a definite conclusion. Nothing is worse than a closing argument that just peters out. There is a temptation with time left to start telling it all again. Resist the temptation. You will sit better in a jury's mind and they will retain it better if you do not drone on. Let them know you are finished and they will appreciate you and your professionalism. End forcefully and positively. Let them know that if they do their job, and you know they will, then based on the law and the evidence they must return a verdict in favor of your client.