Below 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.