22.16 C. The Defense

• Jurisdiction: New York

C. The Defense

The next portion of your summation should be directed to discussing the defense that was put forth in the case. During this portion of your summation, you should dedicate your time to finding as many inconsistencies and/or inaccuracies as possible with the defense. If there is a case where a physician’s defense is to blame the patient or other doctors, clearly it is your obligation to point out the fallacy in that argument. Instead of accepting responsibility, the defendant physician comes to court and just blames others for his or her own culpable conduct.

Carefully go through the testimony of the defendants and their experts to show every occasion when they were wrong or not credible. This is generally the best occasion to use trial testimony when there are inconsistencies between pretrial and trial testimony or where the testimony is weakest for the defense. As mentioned earlier, a focus on pertinent testimony is much more effective than just reading long portions of trial testimony to the jury.

Ad hominem attacks on an adversary’s witness, a party or an adversary are error and routinely result in a new trial. Calling a witness a liar is an example.⁶⁰⁸ Stating that an expert will say anything he or she is paid to say or is a “hired gun” is another example.⁶⁰⁹ These attacks, however, though improper, do not per se result in a new trial.⁶¹⁰ Notably, courts will allow summation arguments they consider fair comment under the circumstances, even though they at other times will order a new trial for the same or similar arguments.⁶¹¹

Remind the jurors that they should not be fooled by any smokescreen or by a convoluted defense.⁶¹² The jurors must keep their eyes on the ball and use reason and logic to allow them to conclude that the defense is just trying to fool them. Jurors have great disdain for attorneys they believe are not being candid and...