22.16 C. The Defense

JurisdictionNew 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 forthright with them. Arguments of this kind can easily be made without any personal attack against the defense attorney. I believe it important not to make the defense attorney and/or his or her actions the focus of your analytical criticism of the defense he or she puts forth. In fact, very often at this time, I will compliment the defense attorney on his or her acumen in being able to make such a frivolous defense seem “almost” viable. Defense attorneys rely on presenting medical issues in great detail as a way to convince the jury of their client's superior judgment and skill.

However, it should be...

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