9.25 Closing Argument

• Library: Medical Malpractice Law in Virginia (Virginia CLE) (2017 Ed.)

9.25 CLOSING ARGUMENT

9.2501 Planning. Defense counsel can develop and use themes from everyday life that are universally understood where appropriate rather than simply reciting a summary of the evidence. Simple themes and stories are not just the prerogative of plaintiff's counsel.

The defense lawyer should begin thinking and planning the themes for closing argument early on—ideally by the time that defense experts are designated. The more the defense lawyer learns about the case—by reviewing the records, interviewing the client, deposing the experts, and listening to the trial evidence—the more the argument can be refined. Nonetheless, while the closing argument is important, whether it truly sways the jury's decision in most cases is a fair subject for debate. At any rate, the closing argument is certainly important for clarifying the evidence, particularly where the trial has been lengthy and complicated. The closing argument is the trial advocate's moment of greatest freedom, where the rules constraining the advocate are the most relaxed and the opportunity to control the presentation is the greatest.

As stated above, ¹⁶⁵ using visual aids during the opening statement is highly recommended. In addition to prepared charts, graphs, anatomical

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illustrations, or magnified medical records, specific evidentiary points such as differences in qualifications of experts, specific points of testimony, and the like can be highlighted. Returning to those points during the closing argument allows the jury to see how precisely and accurately defense counsel has predicted the evidence. Moreover, closing argument need not depend in any way on attorney credibility, because the jury will not be called upon to remember what counsel said during the opening statement. Upon seeing trial...