Avoiding pitfalls in closing arguments.

• Author: Ronzetti, Tucker

The closing argument is an integral component of the entire trial presentation. It is the lawyer's last opportunity to summarize the evidence, tie together key themes, and convince the jury why his or her position should prevail. It is the third and final time--after voir dire and the opening statement--for the lawyer to address the trial's decision makers directly. At that point, the jurors have already heard the opening statements, listened to the testimony, seen the witnesses, and have likely formed opinions about who should win and why. Thus, perhaps the most important purpose of the closing argument is to provide jurors sympathetic to your side with points that will enable them to persuade other, undecided or doubting jurors. It is an opportunity to explain how the promises you made in the opening have been fulfilled, and conversely, how the other side's promises have been neglected.

With these principles in mind, the purpose of this article is to provide an overview of the legal limitations involved in the final argument in jury trials, and to provide practical examples, from both the plaintiff's and the defendant's perspective, of common pitfalls in closing arguments.

General Rules Governing Closing Arguments

Because the final argument is the pinnacle of the trial presentation, it is crucial that the lawyer prevent any interruptions, much less an admonition from the court, based upon the failure to follow the legal requirements for the closing. Despite the legal limitations, lawyers enjoy broad scope in their closings. (1) They may discuss any theory reasonably supported by the evidence, provide their interpretations, and suggest that the jury draw inferences or conclusions from the evidence. Lawyers may also ask the jury to resolve conflicting evidence in favor of their clients, and can attack witnesses' credibility. Finally, lawyers can discuss the applicable law, accurately and in a manner consistent with the jury instructions.

At the same time, several forms of conduct are prohibited in closing argument. Violations of those prohibitions may lead, at a minimum, to an objection by the opponent which interrupts the flow of the presentation, but also to admonition by the court, a corrective instruction by the court, a mistrial, or a preserved error for appeal. Some violations also constitute grounds for professional discipline. (2) Advocates, whether for the plaintiff or defendant, must therefore be careful to avoid the following problems: (3)

Providing Improper Statements of the Law. The law of the case is that instructed by the court. Those instructions should be used exclusively. An incorrect statement of the law may warrant a new trial. (4)

Attacking the Law or the Court's Rulings. It should be obvious that it is improper to attack any court ruling before the jury, including the court's rulings on evidence. Beyond reversible error, this is simply a strategic gaffe that pits the lawyer against the credibility of the court. (5)

Misstating the Evidence. Although counsel may argue regarding inferences from evidence in the record, counsel may not create evidence without factual support. (6) Misstating the record in such a way is a strategic error in any event, because it harms the lawyer's credibility.

Vouching for Witnesses. A lawyer may not personally endorse a witness's credibility during closing argument. By presenting purported first-hand knowledge of a witness's character, a lawyer would effectively become a witness who has never been subjected to cross examination. That would be improper. At the same time, a lawyer may argue from the evidence itself, as opposed to providing a personal voucher, that the witness is credible.

Stating Personal Beliefs. Lawyers may not advocate their personal beliefs during the closing. Strictly interpreted, this rule is violated essentially every time a lawyer utters the words "I think" or "I believe." Thankfully, courts do not place form over substance, and instead consider whether counsel is providing inferences and interpretations from the evidence. (7) Nevertheless, personal references may needlessly raise a red flag, drawing an objection and creating a distraction. The easiest way to avoid the problem is to scrutinize your language. Practice and review what you plan to say, paying special attention to any references to yourself.

Improperly Exciting Prejudice, Passion, or Sympathy. Inflammatory language is improper and may be grounds for mistrials. (8) Avoid any derogatory remarks about opposing counsel or the opposing party, or improper stories or descriptions designed to provoke sympathy for the client or prejudice against the opponent. Along the same lines, arguing an impermissible inference is improper by, for example, implying that the defendant is wealthy or has insurance coverage and so can afford the judgment. (9) Also beware "conscience of the community" arguments, appealing to policy objectives divorced from the law or the facts of the case. (10)

Advocating the Golden Rule. In closing argument, do not suggest that the jurors put themselves in the place of one of the parties. A Golden Rule argument is rarely expressed as "do unto others as you would have them do unto you." If it were that simple, no one would ever violate the rule against such arguments. You must avoid implying the Golden Rule, by asking the jury to put itself somehow in the shoes of a party. Although a Golden Rule argument is not per se reversible error, (11) even alluding to...