Closing arguments.

• Author: Cleveland, William C.

THIS ARTICLE provides practical suggestions that practitioners should consider when preparing and giving a closing argument.

1. Practical Considerations

   Regardless of whether you represent the Plaintiff or the Defendant and regardless of what the case is about, there are housekeeping matters that need to be considered.

   If you do not know the answers to any of following questions, you should ask the trial judge, or the trial judge's law clerk, how or whether any of the following apply:

   1. Are there any time limits that will be imposed on the closing argument and how does the Court count the time? Will time spent arranging the courtroom during the break be counted?

   2. Are there any restrictions on use of demonstrative exhibits that have not, themselves, been accepted in evidence? In other words, can you use blow-ups of trial exhibits during the closing argument when the blow-ups are not in evidence?

   3. Will the Court provide copies of the Court's jury instructions, or otherwise tell you what instructions will be given, in advance of the closing argument?

   4. Will the Court provide a copy of the verdict form before the closing argument?

   5. Will the Court submit a general verdict or special interrogatories to the jury?

   6. Will the Court allow you to use an overhead projector, slide projector, PowerPoint or some other form of computer aided projection during closing argument?

   7. When using a projector, where is the best location to place the screen, the projector, the computer, and the necessary power cords?

   8. Will there be a need to dim the lights, and if so, where are the controls located and how do you create the desired lighting during a computer projected presentation?

   9. If each member of the jury has his/her own copy of the exhibits, will they be allowed to keep them and refer to them during closing argument? Will they be allowed to take theirs into the jury room?

   10. Do the acoustics of the courtroom require use of a microphone and amplification?

   11. May you move around during closing argument or are you required to stand at the podium or at counsel's table?

   12. Which party speaks first? In most jurisdictions the order is Plaintiff, Defendant and then Plaintiff's rebuttal. In some jurisdictions, the Defendant's attorney leads off.

   13. Will the Court charge the jury after the closing, which is normal, or before?

   14. Will the court reporter provide daily or partial trial testimony transcripts? Always speak with the court reporter at the outset of trial and request a copy of any partial transcript ordered by the opposition as a standing request. Then, put on the record that you have done so.

2. Proper Preparation for the Closing Argument

   In preparing closing argument, you should prepare a complete outline of the points to cover. Often the points covered in the Opening Statement are a good beginning outline of what should be discussed in closing. Many lawyers find it particularly helpful to memorize the opening sentence, the transition sentences between points that will be covered and the closing paragraph.

   Being absolutely familiar with those aspects of the closing will allow spontaneity when discussing the substantive points, while at the same time provide anchors that will help you move fluidly through the argument in a persuasive way. A typical outline consists of a phrase to identify the point to cover, followed by a list of the exhibits, witnesses' statements or other evidence in the order that they will be discussed. The exhibits and/or blow-ups of exhibits that are used are themselves helpful reminders of the structure and flow for the closing. The following is an example:

   1. Intro: Importance of Jury Service 2. Issues: i. Statements False ii. Public Figure iii. Malice 3. Instruction: Falsity (BLOW UP--1) i. Statement:Lousy Painter 1. Bad Paint Results a. Jones (Ex. 9 Picture--BLOW UP 2) b. Smith (Ex. 10 Picture--BLOW UP 3) c. McTea (Ex. 11 Picture--BLOW UP 4) 2. BBB Complaints a. 1/5 letter (Ex. 12--BLOW UP 5) b. 2/27 letter (Ex. 16--BLOW UP 6) c. 3/24 letter (Ex. 19--BLOW UP 7) [Similar Entries for Other issues] 4. Burden of Proof i. Instruction 5. Verdict Form-- (BLOW UP 8) 6. CONCLUSION--Freedom Requires Free Speech Use of a Flip Chart

   One technique to remember what needs to be said in closing is to write out the list of topics that need to be covered on a flip chart. Show the jury the flip chart and tell them in a preview what you intend to cover. This follows the rule of public speaking that to be effective, a speaker should tell the audience what you intend to cover, cover the material and then conclude by reminding them what you just covered. A flip chart can be your anchor for the closing and will also remind the jury where you are headed in your closing.

   The Closing Section of Your Trial Notebook

   During the trial of the case, maintain a separate section of your trial notebook for the issues, thoughts, comments or items that may be useful in closing argument. As things come up in the trial, jot down a note in this section. Include the stupid things opposing counsel says, mistakes made by the adverse witnesses, aspects of a witness's demeanor of which the jury should be reminded, statements opposing counsel made in his/her opening statement that were not supported by the evidence, inconsistencies in witness statements and any other occurrences during the trial that may enhance the persuasiveness of the closing argument. Although you probably will not use all of the items, this can be a good source of material for your closing.

   Preparing to be Extemporaneous

   You may want to consider the following practice tool that will assist in making your closing appear to be extemporaneous. Think of a few key terms or issues such as "warnings." Once you've outlined your thoughts, randomly pick out a term and force yourself to think about all the important facts you need to address on that point. Jump around with the various points in your prep time so that you get comfortable with each issue. Juggle them up in your mental prep session so that you don't need to have one follow another in your head in order to present the closing. You can play this mental game anywhere, including sitting in court, without the appearance of looking at notes. The exercise is designed to make you feel comfortable that you know what you need to say inside and out. (1)

   Don't read your closing. You need to have eye contact with the jury. You need to appear as if you know your case well. Reading your closing does not create that appearance. Although you should aspire to be so prepared for the closing that you can give it spontaneously and without notes, until that level of skill is acquired, it is recommended that you have your outline available to avoid unintentionally omitting any of the important points. Some of the very best lawyers still check their outline during the closing, rather than relying entirely on memory.

   Prepare the Courtroom Outside the Jury's Presence

   Know the answers to the fourteen numbered questions in Section I above. When using a flip chart, an overhead projector, PowerPoint or other type of computer aided projection, give careful thought as to when there will be an opportunity in advance of making the argument to put all of the things that will be used during the closing where they can be easily retrieved. You should organize the blow-ups of the exhibits in the order they will be used and put them where they will be readily available. During the closing, you should be in complete control of all of the elements in that courtroom. At the start of the closing, you may want to move the podium from where it is resting to some other more advantageous position simply to give a physical manifestation of that control. You may want to spend a few minutes purposefully removing all the exhibits Plaintiff used and replacing them with your exhibits. The point is that whatever you do should be because you intend it to have a positive effect on the jury and not because you failed to think in advance about what exhibits you will use. You should try to avoid spending any time in front of the jury looking for or arranging exhibits, fooling with the computer, or anything else that could have been done in advance, unless you have made the decision that the jury should see that activity. Absent a compelling reason otherwise, it is preferable to perform most of the arrangements during the break, before the jury is brought back into the courtroom. If you need time to arrange the exhibits while the jury is sitting there, you can consider asking the judge to let the jury stand and stretch while you spend a few minutes retrieving what you will need.

   Don't Leave Plaintiff's Exhibits in Front of the Jury

   One of the most common mistakes defense lawyers make is to ignore the blowups, charts or graphs that the Plaintiff has left in front of the jury at the end of his or her closing. If your opponent does leave his/her exhibits where the jury can see them, you should first efficiently collect those items and take them to some place out of the jury's sight, with their contents facing against the courtroom wall.

   Practice, Practice, Practice

   Your closing will be better if you practice it before your spouse, children, or the mirror. Doing so will enable you to consider the nuances and phrasing of the transition sentences. It allows you to practice deliberate choices as to the emphasis placed on the words that you use. Even the most experienced lawyers are nervous during...