Monthly Archives: June 2015

The Million Dollar Question: How Much Should I Ask For?

There is no set rule.  I would recommend that you play it by ear. If you have a case that is clearly worth a good deal of money, give the jury guidance as to how you calculated damages by breaking down each separate category covered in the jury instruction on damages and assigning a number to it. When doing so, you may want to suggest ranges and provide the jury with a summary chart breaking down the value of each element of damages. I know of one occasion in a case against a national department store where an attorney drew a blank line followed by six zeros ($___,000,000) on the chalk board and pointed to the blank line told the jury this is the only number you need to worry about.  His client received a million dollar verdict for a false arrest. Buddy Yosha is slightly less direct and will say in a matter-of-fact tone this is a seven figure case.  All of these methods have been known to work.

What ever number or argument you present, you need to do so honestly and sincerely. Also, keep in mind your audience that makes up the jury. Watch them as you argue and you should know what you are comfortable arguing.

The “Dos” and “Don’ts” of Closing Arguments

What are some common “Dos” and “Don’ts” when it comes to closing argument? Here is a list I put together:


  1. Speak loud and clearly.
  2. Be confident.
  3. Vary your tone and location as you move from point to point.
  4. Be organized.
  5. Begin and end on a high note so your points will be remembered.
  6. Help the Jury with the instructions and form of verdicts.
  7. Keep track of your time.
  8. Try out your arguments on non-lawyers to insure your arguments are persuasive and understandable.
  9. Begin working on your closing argument on day one.  It will inform your discovery, preparation and instructions allowing you to develop a cohesive theme from day one.
  10. Be yourself.
  11. Be sincere and honest and the jury will trust you as a guide.
  12. Deal with your problems head-on before your opponent has a chance to address them.
  13. Use your exhibits and excerpts of key testimony from the witnesses.
  14. Use PowerPoint, blowups of testimony, or charts to assist the jury.
  15. Use analogies, quotes and vivid descriptions to keep them interested.
  16. Save your best “zingers” and analogies for rebuttal if you know the defense will have to address the matter in their argument.
  17. Judiciously use repetition as tool for emphasizing significant points.
  18. Have a clear call to action at the very end of your closing.



  1. Don’t state your own personal opinion about the justness of your cause.
  2. Don’t misstate the evidence or law.
  3. Don’t mention evidence outside of the record.
  4. Don’t berate or personally attack the other lawyer to the Court.
  5. Don’t tell the jury to ignore the law.
  6. Don’t make a “Golden Rule” appeal to the jury and ask them to decide the case like they would want to be treated if they were in your client’s position.
  7. Don’t exceed the time allotted by the Court.
  8. Don’t personally vouch for a witness or your client.
  9. Don’t appeal to bias or prejudice.
  10. Don’t complain about the Court’s rulings or its treatment of you and your client.
  11. Don’t attempt to shift the burden of proof to the other side when you have the burden of persuasion on a legal claim or defense.
  12. Don’t implicate a defendant’s right to remain silent in a criminal case.
  13. Don’t insinuate that it is a lawyer made case without first obtaining approval of the Court.
  14. Don’t violate any orders granting motions in limine. (Can you say mistrial?)
  15. Don’t bore the jury or beat a dead horse.
  16. Don’t ask the jury to send a message with their verdict unless you have a punitive damage claim.  The purpose of the verdict in the typical tort case is to fairly compensate, not send a message.
  17. Don’t wear any distracting clothing or jewelry.

Closing with Style

20111004-075359.jpgStyle and Delivery

As mentioned in my last post, there are a number of great sources worth consulting for purposes of delivering a closing argument.  On that is particularly appropriate is the a speech book called, Speak Like Churchill Stand Like Lincoln by James Humes.  Here are a few short comments on this topic:

  1. Tone – You should vary your tone and positioning during your argument and use that as a signal to the jury as you move from point to point. Your delivery should have feeling and sincerity

2. Time Limits – Try and learn what limits the Court is likely to place upon you before the trial begins so that you can adjust your closing argument accordingly. I typically try to leave at least a third of my time for rebuttal argument when I am the plaintiff. Ask the Court to signal you when you are down to your last five minutes. Have your closing remarks down pat so you can end on a high note.

  1. The Whole Case – You want to weave together the whole case for the jury and show how it fits into the narrative you presented in opening statement and is addressed by law as given by the Court.  Make sure that you give specially tailored instructions to discuss the central issues in your case. Examples could include sudden emergency, pre-existing conditions, intervening causes, superseding causes, mistreatment by a doctor, evidence offered for a limited purpose, etc. Both the law and the facts will impact your case. Also, make sure that you have a good issue instruction since this will likely be the first exposure that the jurors will have to your case.

Don’t be afraid to introduce in your jury voir dire certain concepts or even analogies if you are sure you are going to use them as part of your theme. I was defending a murder case and used the “cat & mouse in the box” analogy in explaining reasonable doubt and in my closing I was able to refer to the various problems with the case as the “holes in the box” carrying on my theme throughout the case.

      4.  Use of Visuals – Paint a vivid picture with choice of words you use.   For example, “They beat my client like a dog, blood splattering everywhere while he begged for his life.”

       5.  Quotes – There is a website called “Quotationary Online”, here is the link:

Thanks to the internet you can find quote about almost anything in a matter of seconds.  Here are a few I like in no particular order:

    • “The truth exists, but lies are invested.”
    • “Bad excuses are worse than none at all and all that you have heard are bad excuses.”
    • “Many a lie is woven in the fabric of truth.”
    • “There are  three kinds of lies.  Lies, damn lies and statistics.”
    • “Figures don’t lie, but liars figure.”
    • “If you tell the truth, you never have to remember.”
    • ” No one has asked for your sympathy and no one does now, and when you have reached a verdict which is sanctioned by your conscience and ratified by your reason, no one can ever be heard to complain.”
    • “I am not bound to win, but I am bound to be true. I am not bound to succeed, but I am bound to live by the light that I have. I must stand with anybody that stands right, and stand with him while he is right, and part with him when he goes wrong.”
    • ” Nobody cares how much you know, until they know how much you care.”
    • “Justice denied anywhere diminishes justice everywhere.”
    • “Man, when perfected, is the best of animals, but when separated from law and justice, he is the worst of all.”
    • “You can protect your liberties in this world only by protecting the other man’s freedom. You can be free only if I am free.”
    • “As long as the world shall last there will be wrongs, and if no man objected and no man rebelled, those wrongs would last forever.”
    • “The pursuit of truth shall set you free   even if you never catch up with it”
    • “Experience is the wisdom that enables us to recognize in an undesirable old acquaintance, the folly that we have already embraced.”
    • “I had rather take my chance that some traitors will escape detection than spread abroad a spirit of general suspicion and distrust, which accepts rumor and gossip in place of undismayed and unintimidated inquiry.”
    • “There is no wealth like knowledge; no poverty like ignorance”.

Finally, a couple of quotes for those who seek our advice without first paying for it:

    • “A lawyer’s time and advice are his stock in trade.”
    • “Remember my advice is worth exactly what you are paying for it… Nothing.”
    • “Speaking of nothing, nothing is better than a good quote.”

6.   Analogies –  “One good analogy is worth three hours discussion.” – Dudley Field Malone.

I have outlined a number of analogies throughout my blog.  When you hear a good analogy, make a mental note of it; or, better yet, write it down.  I have a huge collection of analogies I have gathered over the years. The series of books designed for sermons called The Sower’s Seeds is a great source.  I am also partial to a book entitled, I Remember Atticus: Inspiring Stories Every Trial Lawyer Should Know by Jim M. Purdue.

Closing Argument – What to Do When Your Opponent Deals from the Bottom of the Deck

20111004-080119.jpgIt is important to stick with the argument that you’ve planned out. Then aggressively and positively put forward your case. You don’t want to waste too much time responding to the other side’s argument to the detriment of their own. You want to help the jurors reach their own conclusions about the case with the use of rhetorical questions. Give the jury some credit and let them answer the questions you pose. If your rhetorical questions are properly framed, the answer will be obvious.  Nonetheless, you need to be ready when the defense pulls the jury away from the real issues in the case and be ready to honestly and candidly deal with your case’s short comings.

Addressing Your Problems Before the Other Side Does

Address your own problems before the other side goes on the attack.  This allows you the advantage primacy as the jury will hear your arguments first as they work their way through the case. Handle the questions likely to be raised by the defense in a forthright and confident manner and put forth your best analysis of the evidence in favor of your client.

1.         Credibility and Sincerity is Your Greatest Weapon – State your position with conviction and sincerity. If you exude sincerity, you will gain the trust of the jurors in your analysis of the case. To succeed, your analysis must be an honest one that does not dodge the difficult questions.  Remember, if you lose your credibility, you lose your ability to persuade.

2.        Address Any Weak Points in Your Theory –  You need to expect attacks and be ready to discuss them in a calm and confident fashion so the jury understands that the supposed problems are nothing. You should have laid the groundwork for this in your voir dire of the jury, as well as in your opening statement.

3.        Last Words and Rebuttal – If you are the plaintiff or the state in a criminal case, you have the advantage of going last.  However, remember that the scope of rebuttal is determined by the issues addressed in the closing argument of opposing counsel.  When I was a law clerk right out of school, I saw team of attorneys for plaintiff decide that they would split the closing argument with one of them to discuss liability in the first half of their argument and the second attorney would address the issue of damages in rebuttal.

The Defense, realizing a tactical mistake made by the plaintiffs’ attorneys, chose to limit their argument to liability only and moved in limine to prevent the plaintiff’s attorney from arguing damages in rebuttal. The jury retired, confused as to whether they were supposed to determine only liability or both damages and liability. Ironically, at the end of the day, failure to argue damages did not seem to matter much. In that case the jury returned a record multimillion dollar verdict in a civil case for Lake County, Indiana.  Don’t make this mistake. You might not be as lucky. See Indiana Jury Rule 27.  This Rule provides:

When the evidence is concluded, the parties may, by agreement in open court, submit the case without argument to the jury. If the parties argue the case to the jury, the party with the burden of going forward shall open and close the argument. The party which opens the argument must disclose in the opening all the points relied on in the case. If, in the closing, the party which closes refers to any new point or fact not disclosed in the opening, the adverse party has the right to reply to the new point or fact. The adverse party’s reply then closes the argument in the case.  If the party with the burden of going forward declines to open the argument, the adverse party may then argue its case. In criminal cases, if the defense declines to argue its case after the prosecution has made opening argument, then that shall be the only argument allowed in the case.  In criminal cases, the party with the burden of going forward is the prosecution. In civil cases, the party with the burden of going forward is the plaintiff. [Emphasis Added.].

4.         Save Your Zingers for Rebuttal on Points the Defense Must Cover –  If you know there are points the defense must cover, I would recommend saving some of your best zingers, one-liners or analogies for rebuttal. Your opponent will be silenced, and your statements will not be directly challenged.  There is nothing more powerful in terms of capturing someone’s attention and imbedding your message in their brain than a good one-liner; or, as I like to call them, a “zinger”. A “zinger” is described as, “a surprising or unusually pointed or telling remark.”

In today’s modern, fast-paced world, speechwriters and politicians often work on developing that one biting quip or sound bite which will disarm an opponent and grab an audience’s favor. Such comments often seem unscripted even though they were planned out well in advance. Attorneys can use “zingers” as a rhetorical device during cross-examination or in closing argument to drive a point home. “Zingers” are especially effective in rebutting your opponent’s argument. Your source material is everywhere. I urge you to look to quote books, comedians and popular culture for such material.

A recent book, The Notes, posthumously published for President Ronald Reagan, is a collection of quotes and anecdotes that Reagan gathered over his long career as a speaker and politician. He made a concerted effort throughout his life to look for and collect such quotes on index cards.  President Reagan was the master of the one-liner. Who can forget Reagan’s “There you go again” quip he used to boomerang criticism of his position back at his opponent, President Jimmy Carter during their presidential debate in 1980. See:

Books containing anthologies of jokes are another source of such material. The master of the “zinger” is Samuel Clemens, more famously remembered as Mark Twain.  In dealing with the topic of truthfulness and the use of statistics to bolster a weak argument, Twain observed:

“There are three kinds of lies: lies, damned lies and statistics.”

Another way of putting it according to Twain was:

“Figures don’t lie, but liars figure.”

Such a statement can quickly and effectively eviscerate an opponent and swings the audience or jury in one’s favor. Cultivate your inner one-liners; you won’t be disappointed and you may just “zing” your opponent the next time you are in court.

If you are on the defense, I would point out that after you sit down you will not be allowed to speak any further and cannot address the issues raised in rebuttal. You and your client have to trust the jury will scrutinize the arguments of the plaintiff the same way as the arguments of the defense.

Gerry Spence had a very compelling analogy is to drive home the point that his client’s liberty rested in the hands of the jury. He reportedly used the following analogy at the very close of his argument in a criminal case and then sat down:

“I’m going to tell you a simple story, about a wise old man and a smart aleck boy who wanted to show up the wise old man for a fool. The boy captured [a] little bird. He had the idea he would go to the wise old man with the bird in his hand and say, ‘What have I got in my hand?’ And the old man would say, ‘Well, you have a bird, my son.’ And he would say, ’Wise old man, is the bird alive or is it dead?’ The old man knew if he said,’It is dead,’ the little boy would open his hand and the bird would fly away. If he said, “It is alive,” the boy would take the bird in his hand and crunch the life out of it and then open his hand and say, ’See, it is dead.’ So the boy went up to the wise old man and he said, ’Wise old man, what do I have in my hand?’ The old man said, ’Why, it is a bird.’ He said, ’Wise old man, is it alive or is it dead?’ And the wise old man said, ’The bird is in your hands, my son.”

“Ladies and gentlemen of the jury my client is in yours.”

5.        Misdirection and Distractions –  Often times, your opponent will attempt to get the jury to chase false issues and red herrings.  Distraction, misdirection and appeals to prejudice are common tools of the defense. Ideally, you keep these improper arguments or evidence from the jury through the use of motions in limine. Sometimes this is impossible to do. What do you do to keep the jury from being mislead or distracted by meaningless side issues? How about a little verbal jujitsu! “Jujitsu” is the oriental “art” of manipulating the opponent’s force against himself rather than confronting it with one’s own force. You can do this  verbal jujitsu by using effective analogies and counter-arguments. Below are a few of my favorites analogies and arguments. I hope they help.

STREET LIGHT ANALOGY: One dark evening a woman was on her hands and knees under a street light looking through the grass. A man walking by stopped and asked what she was looking for. “The keys to my car.” replied the woman. Having some time and feeling helpful, the man joined the woman in her search for her keys. After looking for quite a while with no success, the man asked, “We have been looking for well over 15 minutes here. Are you sure this is where you were when you lost your keys?” “Why no, I lost them a couple blocks back over there by my car” the woman explained as she gestured back towards her car. The man was puzzled and asked, “If you lost them a couple blocks back, why are you looking for them here?” The woman without keys responded, “Because the light’s so much better here!” That’s what the defense is did here, even though the real issues are two blocks back…

WHEN THE LAW & FACTS ARE AGAINST YOU: In law school they say if the facts are in your favor, argue facts; if law is in your favor, argue law; if neither law or facts are in your favor, argue like a lawyer and try to confuse the jury about what the case is really about. It’s the oldest trick in the book. The defense took a nice simple case that is straight forward and tried to make it complicated by pointing to a bunch of things that really have nothing to do with the case’s merit in hopes that you’ll forget what this case is really about…

OCTOPUS ANALOGY: The defense is just like an octopus hiding behind a cloud of black ink, they try to obscure your view with their arguments and B.S. However, all you have to do is just move straight ahead through the ink and you can see the truth once again. Most octopi squirt thick clouds of black ink to confuse predators. However, a type of Tremoctopus, or blanket octopus (murasakidako in Japanese), employs a different technique. When threatened, the octopus unfurls a giant sheet of webbing that trails behind like a cape. The webbing breaks apart rather easily when attacked — much like a lizard’s tail — and it gets wrapped around the predator’s face, giving the octopus a chance to flee. The defense took a nice simple case that is straight forward and tried to make it complicated by muddying the waters with a bunch of things that really have nothing to do with the case, in hopes that you’ll forget what this case is really about…

RED HERRING ANALOGY:  A “red herring” is normally used by people to divert the attention of others from something important; from the central point that is being considered. A “herring” is a kind of fish that turns red only when it is “cured” – that is, when it is smoked and salted. Such a fish emits a very strong smell, and in the past criminals made use of red herrings to help them in their bid to escape the authorities. Convicts used the herring to help them throw dogs off his scent. Since the herring had a very strong smell, the police dogs followed the scent of the herring and not that of the escaped convict! The original expression was “drag a red herring across the trail”, but now it’s been reduced to “red herring”. That’s what’s happened here…

AD HOMINEM ATTACK: An Ad Hominem attack falls into a general class of logical fallacies in which a claim or argument is rejected because of some irrelevant fact about the author of or the person presenting the claim or argument. The reason this sort of argument is fallacious is that the character, circumstances, or actions of a person do not (in most cases) have a bearing on the truth or falsity of the claim being made (or the quality of the argument being made). These sorts of arguments appeal to prejudice and bias in hopes that you will ignore your sworn duty as jurors. They are wrongheaded and improper. Lady Justice stands there holding the scales of justice blindfolded. Lady Justice does not care if we are black or white, Christian or Muslim, male or female, rich or poor, married or divorced… Her sole concern is to fairly and impartially evaluate the evidence based upon the law. The defense’s personal attacks on my client have nothing to do with this case’s merits. It is bad enough that they have shamelessly injured my client, now they want to profit from insulting and degrading him in your eyes. These attacks have no bearing on what is a fair and just outcome given the facts and the law in this case which weigh heavily in favor of my client…

One book which has a number of great counter-arguments is Closing Arguments: The Last Battle. by Levin and Papantonio.  This book is a well-organized collection of miscellaneous arguments and analogies used to explain and illustrate various legal issues and address common defense attorney arguments and tactics used to undercut, confuse, distract or sidetrack juries from the central issues in a personal injury case.  Another fine book on the topic is The Lost Art:  An Advocate’s Guide to Effective Closing Argument, by Judge Joseph F. Anderson, Jr.  this book is a treasure trove of great ideas, quotations, analogies and the law governing closing argument. Both books are more than worth the money.

6.     Other Attacks to Address – here are a few more thoughts on how to deal with the defense when they deal from the bottom of the deck:

When the defense attacks through the use of innuendos- Another argument to present to a defense request for the jury to make his arguments for him when he sits down was suggested by the noted Attorney Moe Levine:

Countless attorneys, skilled and persuasive, each with their own acquired tricks to influence a jury by sowing the subtle seeds of cynicism. One of these is that when he sits down, he appoints you as his assistants and gives you permission to share with him the responsibility to represent his client in the jury room by answering each of my arguments to you. However, if this were truly the case, what need would there be to sum up at all? We would simply send you to the jury room and ask you to deliberate. This type of argument is not new to me. It is insidious and subtle. It asks you to take on the role of an advocate instead of that of a fair and impartial judge of the facts. Such comments subtly shape your view of the evidence. It moves you from a role where you are impartial, unbiased and neutral, to a role of where you act as an advocate for one side over the other. These techniques are subtle but effective.

Here is a response inspired by the approach taken by Attorney Rick Friedman, in his book “Polarizing the Case:

He [opposing  counsel] attacks by innuendo asking how can we know what the evidence shows when my client says he is in pain from this collision. He has had problems before. How can this be different? This too is subtle because what he is really saying is my client is a liar and a cheat and a fraud.  He won’t come right out and say so because he knows such a statement is outrageous and unworthy of consideration. In fact it is insulting. Instead he subtly insinuates that something is not right, planting the seeds of cynicism in hopes that back in the jury room, they will sprout.  This flies in the face of the evidence presented here. To buy into this argument you would have to conclude that:

Greed- If their Goal Was Money: My client and his spouse have come into this Court and both lied as well as all of those around who have corroborated their testimony. If this were about fraud would you not make greater claims? Wouldn’t you have run up unnecessary treatment? Would you be constantly complaining about your condition and claiming that your pain did not improve with treatment? Wouldn’t you do everything in your power to make you case more valuable? This has not occurred. My client has worked to get better and, in fact, has had periods of remission where his pain has improved even though it has never completely gone away.

Speculative and Unsupported Causes: He [opposing  counsel] also has insinuated that something else must has caused my client’s symptoms. He does this with evidence of any sort and again subtly plants the seeds of cynicism by asking questions and suggesting facts that no one has testified exist. It is undisputed that my client complained of symptoms at the scene and told the investigating police officer of this. The defense has no Doctor who has said such things. If the medical evidence is there, he could have hired an expert to say this is so. Instead of evidence, he has asked that you guess and speculate. This is not allowed.

Unfounded Assumptions or Unsubstantiated Arguments –  When this happens you might say something like this:

He thinks just because he argues and says something enough that we all will fall for his argument and treat his speculation like real evidence. I’d like to share with you some thoughts of one of our greatest Presidents, Abraham Lincoln:

Some people believe if they say something is so, that it makes it so. Abe Lincoln had a pretty clever way of dealing with such arguments. On one occasion, Abraham Lincoln, as a young trial lawyer in Illinois, was arguing a case with a lawyer whose version of the facts came more from the attorney’s fervent imagination than the testimony and evidence before the Court. Lincoln in his argument turned to the other lawyer and eviscerated him:

Lincoln:          “Tell me, sir, how many legs does a sheep have?”

Attorney:         “Well, four, of course,” he answered. ”

Lincoln:           “And if I call a tail a leg, how many legs would that sheep have?”

And the answer came back from the Attorney:  

“He’d have five.”

Abraham Lincoln slammed down his hand on the jury box and roared:

“No! He’d still have four. Just because you call a tail a leg doesn’t make it a leg. So now let’s see how many tails you have been calling legs in this case.”

7.     Bait the Other Side into Traps:

Sometimes, you can bait the other side into either embracing or rejecting positions that they have taken by innuendos. If you know that you can defeat the argument, call them out in the opening part of your argument and force them to commit. I have done this before to great effect and then pointed out the evidence which proved the defense wrong in rebuttal.

7.On the other hand, sometimes your opponent will raise a plethora of issues in hopes that you will waste all of your time chasing ghosts. Use the misdirection analogies above or use the following one:

Block Analogy: When I was a kid, my little brother, Bob, would sit and watch me build a really big impressive building from blocks.  As soon as I got it built, he would wait for me to look away for a second and then run up and tear it down my magnificent building of blocks in less than a couple of seconds.  He’d sit back and laugh while I chased around to gather back up the blocks he’d kicked around the room.  I was determined and would not let him stop me. Instead, I would patiently rebuild my block building again, even better than before.  Eventually, I quit chasing around the blocks and he quit because it was not fun anymore.

As a Plaintiff, you spend the trial putting your case together building it block by block – witness by witness.  The defense attorney comes along and throws out a bunch of questions and issues in his closing knowing that there is not enough time to address every point. Just like my brother, he will try to tear down my case in a few minutes hoping that I will waste my time in my rebuttal chasing each block he kicked away. Well, I for one am not falling for that trick again.

Don’t you fall for such tactics either when you argue your next case.                         

Puzzled Jurors? Piecing it Together for the Jury…

20131006-082108.jpgYour job is to help the jury see how the jury instructions apply to the evidence and that you’ve proven the essential elements of your claim, covering the essential facts and promises you made in your opening statement. You want to check your story provided to the jury in opening statement and show how various pieces of evidence, both documentary and testimonial, support your position. An effective means of arguing your case is the use of rhetorical questions which you pose the jury. The answer to those questions should be obvious. This encourages the jury to figure out the case for themselves. It also is an effective means to prevent yourself from stating your own personal opinion about the justness of your cause which is prohibited.

Analysis v. Summaries

The worst closing you could give is to get up there and run through each witness and summarize their testimony for the jury.  The jurors know what the evidence is and summarizing is boring. Collectively, they probably have a better recollection than you do.  The one thing they don’t have are your skills at analyzing and piecing the case together.

Applying the Jury Instructions to the Facts

Burden of Proof  –  In a civil case, remind the jury that you do not have to prove every single fact mentioned in the case by a preponderance of the evidence or beyond a reasonable doubt as the case may be.  You are only required to prove the elements of your claim or affirmative defense by the standard.  For the burden of proof in a civil case attorneys typically use the balancing of the scales to show that the greater weight of the evidence need only tip ever so slight towards the plaintiff in order to satisfy the burden of proof.

In a criminal case as defense counsel I might use an analogy such as the following to deal with reasonable doubt:

“Is it possible to prove that someone is guilty of a crime–guilty beyond a reasonable doubt–with nothing more than circumstantial evidence? With no eyewitness testimony? Certainly. Take the simplest situation you can imagine. You have a cat and a mouse and a big cardboard box. First you put the cat in the box. Then you put the mouse in the box with the cat. Then you put the lid on the box and tie it tight with a string so neither one can get out. “Leave the room for half an hour. Come back into the room. Untie the string, take off the lid and look inside. There is the cat, but no mouse. “Do you know what happened? You didn’t see. There were no eyewitnesses. But you know beyond a reasonable doubt what happened to that mouse. “Now let’s do that again. Put the cat in the box. Put the mouse in the box with the cat. Put on the lid. Tie it up tight. Leave the room and come back a half hour later. Untie the string, take off the lid.  “There is the cat, but no mouse. “But look. This time there’s a round, ragged hole in the lower corner of the box. Mouse-sized hole. Do you know what that hole is? It’s a reasonable doubt.”

“Now let’s take a look at the holes in the prosecution’s case.” Then write a word or two on the board for each problem, inconsistency or omission in the prosecution’s case. Draw a circle around each one as you finish talking about it. By the time you are done, the board is covered with holes.

I find it helpful use large exhibits and boards when making your closing and then applying the jury instructions to the evidence.

Commons Issues to Address

As a plaintiff, you want to make sure that the jury is not distracted from the real issues in the case and drag them into the high weeds so that they will lose their way. You want the jury to be clear that there are only two major areas of decision: liability and damages.  Any other consideration is irrelevant to the jury’s verdict.  Your client is entitled to fair and just compensation for all of the harms and losses caused by the defendant.  You can handle these problems both with jury instructions and arguments.

 1.         Sympathy and Vengeance –  You should tell the jury that:

“We are not here for vengeance, and we are not here for sympathy. Our client has gotten plenty of sympathy from his family.  We are here to right a wrong.  We came here for justice.  The days of an eye for an eye are gone.  My client would not wish what happened to him on anyone.  Today, justice is accomplished in our society by rendering a judgment for all the harms and losses he has suffered.  The Plaintiff is entitled to justice which is can only can only rendered in the form of a dollar verdict.”

2.         Only Chance to Recover Damages – “Long after the memory of this case fades for each of us, the problems and the pain will remain for my client. This is my client’s only chance. He cannot come back in 20 years when he is old and gray and he has all the problems likely to follow.

“You may say that it is not certain he will incur these costs in the future.  The law does not require certainty, only that it be more likely than not to be  required.   However, one thing is certain.  If you do not include money in your verdict for future medical treatment and pain and suffering, my client will leave this Courtroom worried about whether he will enough money to address these issues in the future.”

3.        Just Verdict –  To those who would argue that you are seeking a large verdict let them know that: “Verdicts aren’t large or small, only just or unjust.”

4.        Verdicts Are Not About Redistributing Wealth – “It’s not about wealth redistributing wealth. If someone damages a car by breaking the window, we make them pay the full price of the window, no more and no less. Otherwise, the cost of the irresponsible behavior falls upon the innocent victim, not on the people who broke the rules and were careless. That’s the basis of our civil justice system; we don’t want innocent victims to be bearing the costs of the Rule Breakers.”

 5.         Must Follow the Damage Instruction –  “The judge is going to give you an instruction here in a few moments and you’re going to have a chance to take a look at it. It outlines the items of losses the State of Indiana says you may consider in evaluating a case like this. This is not something I made up or the judge made up. This is what our legislature and court system says are the losses you should be able to consider in this type of case pursuant to your oath as a juror.”

6.            Pain & Suffering –  “Why do we make rule breakers pay for things like pain and suffering? Lost wages are one thing — so are medical bills. Somebody could argue, while my client might lose their job sooner or later, he would get another job. But would it be the job that my client loved? Probably not. And what about all the trouble that the injury is giving my client on a day-to-day basis not just at work, not just at home but in any activity that requires him to use his body or put weight on it. What about these intangible losses? Those are the things that can give us the most trouble, that keep us up at night, that prevent us from joining in on physical activities, but in a way they are the most important.  Remember, his pain is not on a yearly basis.  He has suffered and will suffer by the hour, by the minute, by the second, for the rest of his life.”

 7.        Pre-Existing Conditions  –  Here is a good line I have heard Buddy Yosha of our office use in dealing with pre-existing conditions:

“The defendant says shame on you if you have a prior condition.  Fortunately, that is not the law.  You take a person as you find them.  Some people, like the plaintiff, are easier to hurt and harder to get better.   In this case they (the defendant) hit the wrong person and now they have to pay for the harms and losses their carelessness has caused.”   Then refer the jurors to the Court’s instruction on this topic.

8.         The Whole Man Argument – Moe Levine was a legendary plaintiff’s attorney.  Here is a link to a You Tube Video where he discusses some of his strategies:

He could persuasively explain to a jury how an injury to one part of the body affected the person as a whole.  Here is his argument:

In Corinthians it states:

“For the body itself is not made up of only one part, but many parts … and so there is no division in the body… If one part of the body suffers, all the other parts suffer with it”.   How do you evaluate pain? Do you evaluate it by the minute, by the hour?   Not I. I say this cheapens the human being and this woman who comes to you in this case does not deserve to be cheapened. She has done nothing for you to cheapen her by anything less than full justice.  What does full justice mean? Isn’t this our true goal? Do you agree with this—that anything less than full justice is injustice? I say it so quickly. I say it so quickly, yet we could talk about it for weeks. If he was entitled to recover here, and you gave him nothing, then you would give him total injustice. If he were entitled to $150,000 and you gave him only $140,000, there would be $140,000 worth of justice, and $10,000 of injustice.  I’ll admit that it’s just one way of looking at it. One man says his glass is half full and the other one says half empty, depending how thirsty each is. I know, but don’t you see that when we talk of justice we cannot talk of part justice? When we talk of pain we cannot talk of pain to a part of a person. This is a total person.  Let me become philosophical with you a moment if I may. Remember, “No person is an island unto himself.”    Remember what it means? When this person was injured, his whole family became injured. Right? His spouse became injured. His children became injured. His injuries affected their ability to live and enjoy life. Do you see the ripples spreading around this family? Do you see why it is that no person is an island unto himself, but that injury to any member of the human race eventually inflicts injury on all members of the human race?  Do you see why injury to part of this man you necessarily must injure all of him? This is a total integrated organism. Are not the few things he has left in life even more precious after all that he has endured.   I will not cheapen my client by telling you to figure out the value of the avoidance of pain by the minute or the hour. I insist that you take him as a whole person and that when you form your judgment as to his value, you will recognize that the destruction of part of a whole person has destroyed in part all of him. 

A number of these sort of topics are extensively covered in books such as Polarizing the Case: Exposing and Defeating the Malingering Myth by Rick Friedman, Theater Tips and Strategies for Jury Trials by David Ball, Moe Levine on Advocacy by Moe Levine and David Ball on Damages 3, by David Ball.   I have purchased these books and strongly recommend you do the same.  Another fine book on speechmaking you need to read is Speak like Churchill Stand Like Lincoln by speechwriter James Hume covers the elements of a well crafted speech.  A consultant to presidents of industry and countries, his tips on both style and substance are concise and invaluable.   The book is also an entertaining read.

Gerry Spence has his own way of laying out this argument:

It’s now time to get justice. It’s now time to get retribution. What is justice? Well, in the civil case, it’s to get the only thing that can be given to you. They can’t give you back this little baby. “Give me back little Jenny and you can have back all of the $10 million dollars that I ask for in this case. I want justice. I don’t want a little part of Jenny. Don’t give me her little toes. Don’t give me back just her little smile. I want all of her back. I don’t want just $500,000 for a little toe. I want all of her back. Don’t cut her in half for me.

Give her all to me. Will you?”

9.        Jury Forms – Jury verdict forms these days are very complicated especially in cases involving multiple defendants under Indiana’s Comparative Fault Act.  In a complicated case, I would recommend blowing up the jury verdict form in showing the jury precisely how to fill it out and calculate your clients damages.

I hope this information helps the next time you prepare a closing argument.

A Recipe for an Effective Closing Argument

20120115-144530.jpgBelow is a summary of some thoughts dealing with closing arguments which I would like to share.  Like a good meal, a closing argument is something which requires careful preparation and a judicious mix of ingredients in the appropriate quantities.   Below is my recipe for an effective closing argument.


            While it may seem intuitively obvious, the central goal of any closing argument is to prevail on behalf of your client. Any other objective is secondary. This is your last opportunity to speak with the jury and you don’t want to waste it. Below are some thoughts concerning how to best compile the central goal on behalf of your client.

Strong Opening Grab their Attention

As far as I am concerned, you want to begin strong and end strong. You are the director, producer and central author of the closing argument. Syd Field is the author of a number of books on screenwriting. His principles have equal application to the formulation of closing argument. In his book, Screenplay: Foundations of Screenwriting he talks about how important the first 10 minutes (approximately 10 pages) of your script are.  Screeners of scripts will typically look at the first 10 pages of the screenplay and if they don’t like it, they quit reading and toss the script to the trash pile.

Jurors are not much different. If you haven’t caught their attention in the first few minutes of closing argument, they are probably going to start daydreaming about what they will do once they’re out of the trial. Instead of spending a bunch of time at the beginning of closing thanking jurors or their service, I would recommend grabbing their attention with a snappy introduction while you have their undivided attention.


Themes act as a unifying thread of your case. It is a thing that motivates the jurors to take action. There are number of potential themes.  Watch movies and see how things are developed and the best ones. In fact, I have a book that contains nothing but quotes from various movies which I tried to interject in my closings to make them more interesting and compelling. Below is an example of a closing argument that I gave which dealt with the themes “profits over safety” and “accepting responsibility”.  This is the same case discussed earlier in my materials on direct and cross examination.  Here is the introduction:

This is an important case.  It’s important for a lot of reasons – most importantly, as I said at the beginning of this trial, it’s a case about accepting responsibility and in this case Mr. King did not accept responsibility.  Mr. King ignored facts.  Mr. King ignored laws.  Mr. King was concerned about one thing and one thing only and that was himself.  One of the things that I discussed with you at the very start of voir dire was this idea that we do not allow profits to take priority over safety.  There are a lot of good reasons why we have our safety laws, but as I discussed you have to have laws and you have to make people accept responsibility for the harms and the losses that they have caused, because if you fail to do that there’s absolutely no incentive for someone to be responsible.  Below is a short list of some common themes:

Safety –  We do not allow profits to take priority over safety.

Keeping Promises – A man’s word is bond.

Preciousness of Life – As Will Munny put it in the western Unforgiven, “It’s a hell of a thing, killing a man. Take away all he’s got and all he’s ever gonna have.”  That is what happened here.

David & Goliath [Right v. Might]  –  Everyone loves to see the little guy prevail over the big bully whether it be the government or a large corporation.

Theft of Innocence – When a child is injured or emotional traumatized by an event or act, their life is never the same and the joy of childhood is ripped away.

 Right vs. Wrong –  You may be able to paint the case in simple terms which we are all taught as children; you do what is right because that is your duty.

Failure to Accept Reality –  Don’t Confuse me with the facts, my mind is made up.

Greed/Selfishness –  Such things often lead people to take short cuts and ignore their responsibilities to others.

Struggling to Overcome Impossible Odds –  Everyone cheers for a person who bravely soldiers on against difficult circumstances.  Perhaps your client was seriously injured and has struggled to regain some semblance of his life.  His efforts are heroic and worthy of the jury’s admiration.

Themes in cases are virtually endless and only confined by your imagination.  All great literature, including the bible, strike various themes that describe why we and what we should do.  Tap into these themes and use them to unify your argument.

Keeping Your Promises

As you move through your closing, it is important to link back to the themes and promises you made in your opening statement to show that you have fulfilled the obligations assumed in your opening statement. That is one of the reasons why you don’t want to promise anything in your opening statement that you can’t deliver on during the course of the trial.

Likewise, if your opponent has made promises and failed to fulfill them, you want to be able to point this out to the jury.  That’s why you always want to keep good notes of your opponent’s opening and in some instances you may even want the court reporter to partially transcribe the opening to drive the point home so that it can be quoted verbatim from the official transcript of the court.

Provide a Clear Request for Action

At the end of your closing argument, you want to clearly request the jury to take particular action on behalf of your client. This request for action can be addressed as you move through your closing. However, I always have a strong ending in my closing requesting action on the part of the jury.  Closing argument is similar to a pregame speech provided by a coach to his/her players. You want to motivate the jurors to take the action desired on behalf of the client.

If you can’t clearly request action on behalf of your client, how is the jury supposed to do so?  Here, is an example of such a call to action:

Our client would rather have his life back than a $1,200,000 verdict.  I suggest to you this is a seven-figure case.  I’ll leave it to your discretion to go through and look at these damages and analyze the jury instructions.  This case has been a heavy burden on our client.  It’s been a heavy burden on the attorneys to work it up, as you’ve probably seen these last four days.  But today we sit down and the job becomes yours.  And we appreciate your time and your attention to the case and know that you’ll do justice for him.

How Can I Help You?

I remember seeing Kent Rowe Sr. of South Bend, Indiana give a fairly dramatic introduction to defense closing argument in a serious personal injury case.  He looked at the jury and  asked:  “How can I help you?”  He stood there a moment, paused, and once he had the eyes of all of the jurors he moved forward and did just that… helped the jurors.  He answered questions about how they go about their job in looking through the evidence and applying the facts to the Court’s instructions.  He showed them how to handle the form of verdicts.  He posed and answered questions that were likely on the jury’s mind concerning the issues in the case.  By opening in such a fashion he crawled into the jury box and truly helped them to fulfill their duty to the justice system.

That is what we are called to do every time we deliver a closing argument… Help the Jury   reach the outcome we desire for our client.

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