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.
It 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.
Your 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.
“I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” —Thomas Jefferson to Thomas Paine, 1789.
Jurors… They are truly the heart and soul of our justice system. No invention known to man has a greater potential to add to the cause of justice than a jury. They represent a microcosm of democracy. All typically must agree on the outcome. There must be compromise and a degree of open-mindedness, if there is to be a resolution at all. Most arrive wishing they were somewhere else and leave transformed by the process of being asked, in the name of justice, to render a decision that will profoundly effect the lives of the litigants before them. Their collective intellect, wisdom and conscience is more powerful and productive of good than any single man sitting in judgment of another person’s actions or decisions. Under English law, jurors stood between the crown and it’s subjects. They acted as a check on tyranny by the crown against the people. The following analogy about the “Old Man, the Boy and the Bird” demonstrates a jury’s awesome power. I first saw this analogy recited years ago on “Sixty Minutes” by renowned trial lawyer, Gerry Spence. It is a fitting way to end a closing argument as Spence liked to do:
“I’m going to tell you a simple story, about a wise old man and a smartaleck 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.”
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.