As far as I am concerned, when it comes to your closing argument, 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 a closing argument. In his book, Screenplay: Foundations of Screenwriting he talks about how important the first 10 minutes (about 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. Don’t waste this opportunity with boilerplate pleasantries and thanking the jury for their service. This comes across as flattery and will seem insincere. You are better off giving your thanks in the middle of your closing where it will be seen as heartfelt and less forced. Make sure you end strong as well so you can take advantage of the effects of primacy and recency. You are giving the jury needed inspiration as they retire to the jury room to deliberate.
At the end of his closing arguments before he sat down, renowned trial attorney, Gerry Spence, used the following analogy to drive home the point that his client’s fate was in the hands of the jury :
“I’m going to tell you a simple story, about a wise old man and a smart aleck young 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.’”
So give the jury a memorable closing argument by starting and ending strong.
The Oscar Pistorius Trial poses a basic question about human beings and credibility. The question being asked: Is he telling the “truth”, or is he a “murderer”? The death of his girlfriend, Reeva Steenkamp, happened in the dark of the evening after he was roused from his slumber. He claims to have awoken to sounds he believed to be an intruder. How does one decide such a question?
Just about everyone has seen the original Star Wars Trilogy which begins with episode four which starts “a long time ago, in a galaxy far, far away…” In the first movie, Episode IV, Star Wars: A New Hope, Luke Skywalker is rescued by an old hermit known as old Ben Kenobi, After Luke is rescued by Ben from the sand people, he learns that Ben is really a Jedi Knight, Obi Wan Kenobi, who knew Luke’s father. Luke asks Obi Wan about what happen to his father:
Luke Skywalker: How did my father die?
Obi Wan Kenobi: A young Jedi named Darth Vader, who was a pupil of mine, was seduced by the Dark Side of the Force. He betrayed and murdered your father.
This sounds like a straight-forward explanation… maybe? But in the next movie, Episode V, The Empire Strikes Back, Luke confronts the ‘evil’ Darth Vader. During their light saber battle, Luke and Vader have the following exchange:
Darth Vader: “Obi Wan never told you what happened to your father.”
Luke Skywalker: “He told me enough. He told me you killed him.”
Darth Vader: “No — I am your father.”
The movie closes with Luke asking why Obi Wan Kenobi did not tell him Vader was his father.
So which is it? Did Vader kill Luke’s father? Or is he Luke’s father? Of course, the story doesn’t end there, and in the third and final movie of the original trilogy, Episode VI, Return of the Jedi, Luke finally gets the answer he deserves to his question about what happened to his father. Luke returns to finish his Jedi training and asks Yoda if Vader is in fact his father. After Yoda confirms that Darth Vader is Luke’s father, Luke has this conversation with Obi Wan’s ghost:
Luke Skywalker: Why didn’t you tell me? You told me Vader betrayed and murdered my father.
Obi Wan Kenobi: Your father was seduced by the Dark Side of the Force. He ceased to be Anakin Skywalker, and became Darth Vader. When that happened, the good man who was your father was destroyed. So what I told you was true. From a certain point of view.
Luke Skywalker: A certain point of view?
Obi Wan Kenobi: Luke, you’re going to find that many of the “truths” we cling to depend greatly on our own point of view.
And this statement illustrates the difference between truth and accuracy. Just because someone testifies under oath to something that can be proven false, does not necessarily mean the witness is lying. Likewise, just because a witness strongly believes what he has testified to, doesn’t mean that he is right. You have to be careful not confuse “sincerity” for “veracity” or “mistake” with “malevolence”. What Obi Wan Kenobi was really trying to tell Luke is that there is a difference between lying, the “truth” and inaccuracy. It all boils down to one’s point of view, their personal biases, opportunity to observe, mental acuity and their skills as an observer.
There is a difference between lying and being mistaken. Mistakes happen all the time. Sometimes people and even animals risk their lives on them. This is what happens when you fish with an artificial bait. You cast out your lure and a fish strikes your lure sincerely believing it is live food. The fish has just a split second to make its decision to strike the “food” before the opportunity is lost. The fish is literally “dead wrong” when it strikes. This is simply a case of “erroneous recognition” by the fish.
It is easy to second guess someone. The decision he made that night did not happen in the calm of the courtroom where the case will be argued.
Here, is he telling the “truth” based on his own point of view or weaving a lie in the fabric of truth? Just because his point of view differs from what really happened does not mean he is necessarily lying. He could just be sincerely dead wrong.
Closing Arguments: Strict Liability, Dangerous Instrumentalities, Vicarious Liability and Use of the Lion Analogy
It always helps to use an analogy to explain an obtuse or complex legal principle. Strict liability for the actions of others or for events where no real negligence or lack of care has occurred is a difficult concept to convey to a jury. Strict liability can arise in a product liability setting, from vicarious liability for an employee or agent or in connection with escape of ultra-dangerous substances or animals. In the Karen Silkwood Case involving the release of plutonium which fatally poisoned Karen Silkwood, Gerry Spence used the following analogy:
“We talked about strict liability at the outset, and you’ll hear the court tell you about “strict liability,” and it simply means “If the lion got away, the Defendant has to pay.” It’s that simple. That’s the law. It came out of the English common law. Some guy brought an old lion on his ground, and he put it in a cage — and lions are dangerous — and through no fault of his own, the lion got away. The lion went out, and he ate up some people — and they sued the man. And they said, “You know, pay, it’s your lion and he got away.” And the man said, “But I did everything in my power. I had a good cage, had a good lock on on the door. I had trained people watching the lion, and it isn’t my fault that he got away.” Why should you punish him? They said, “You have to pay because it was your lion — unless the person who was hurt let the lion out himself.” The question is, who has to prove how the lion got away? They have to prove that the Plaintiff let it out. If they can’t prove that by a preponderance of the evidence, they’ve lost. Why? Well, it’s obvious. It’s their lion, it’s that simple.”
Gerry Spence’s efforts resulted in a multi-million dollar verdict being returned in favor of Karen Silkwood’s Estate for her wrongful death from plutonium poisoning. Perhaps it will aid you in making your point on the issue of strict liability.