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.