The Closing Statement for the Defense

• Publication year: 2017
• Author: By John Conti

The Closing Statement For The Defense

By John Conti

The moment of highest tension for trial lawyers and litigants is when the silence of the courtroom is broken by the reading of the jury's verdict. Barring appellate reversal, everyone involved will have to live with the decision for the rest of their lives.

As the ultimate arbiters, jurors have the most decisive role yet the most abstract connection to the case. While the parties are invested personally, and the attorneys both personally and professionally, jurors are not affected by the verdict other than on an emotional level. As they walk from the courthouse for the final time, they hope to have a sense of confidence and pride in their decision, sen-

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timents which are instilled by a belief that they have upheld their oath, acted as responsible citizens and brought about justice for the parties.

All phases of trial practice, but especially the closing argument, should incorporate due appreciation of these considerations.

— Approaching Your Closing —

Once the last piece of evidence has been admitted and the defense rests, there comes a wave of relief. The heavy work is finished and all that remains is the closing, the substance of which has been mapped out for weeks.

Yet the planned summation will rarely fit seamlessly with the trial as it actually unfolded for two reasons. First, trials inevitably are burdened by cumulative evidence and tedious stretches, both of which test the jury's patience and attention span. This alone demands a closing that incorporates a fresh perspective. Second, while every trial may begin as a meticulously planned production, the script invariably succumbs to the reality of the courtroom, imposed perhaps by an unpredictable judge, an unexpectedly formidable adversary, or a witness who decides to freelance, freeze, or go rogue.

At this stage lawyers must wrestle with three distinct versions of the trial just concluded: the case that they planned to try, the case they actually tried, and the case they wish they had tried. In fashioning the closing it is of course only the second that matters. The first version is, to invoke a movie analogy, to be consigned to the cutting room floor while the third serves only to haunt one's memory.

The initial step, therefore, is to have the discipline to revise or reconfigure the planned closing so as to adapt it to the evidence as it was presented, or more accurately, as it was received. Far too many lawyers refuse to depart from the theme constructed weeks before trial even when the foundation has collapsed. Nothing can more readily seal the fate of a teetering case or undermine a winning position than a closing that proffers a forced or dubious appraisal of the evidence.

The effectiveness of a summation is likewise compromised if one allows fallout from sidebar conferences or in-chambers arguments to affect the closing. As important as those often spirited proceedings are, it would be unwise to allow the tone or tenor of your address to be influenced by them.

— Anticipate —

The perfect defense closing is one where the plaintiff is effectively left with nothing to say. An impossible dream to be sure, but an aspirational goal that brings into focus very tangible tactics, all grounded on the ability to anticipate your opponent's closing.

An initial step is to make concessions where the evidence demands it or...