Preparation and Presentation of Closing Argument

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 247-276

CHAPTER 30

Preparation and Presentation

of Closing Argument

§30:01 New York Trial Notebook 30-2

I. BASIC CONCEPTS

A. RIGHT TO GIVE CLOSING

§30:01 Statutory Authority

CPLR 4016 affords counsel the right to make

a closing statement (the summation). Although the

statute speaks of a “closing statement,” traditionally

it is a closing argument. Most judges and lawyers

talk about “closing argument” or “summation”

rather than “closing statement.” By contrast, no one

talks about an “opening argument.”

§30:02 Waiver

Counsel in a jury trial does not want to waive the

opportunity to unite all of the case themes in a tidy

package for the jury to consider. Trial judges know

this and do not require counsel to request a closing

argument to the jury. The trial judge will explain the

various stages of the trial in his or her remarks to the

jury and will indicate that summations will follow

the close of the presentation of evidence. The judge

might ask counsel how much time they expect to

spend on summations (or direct a time limit for the

summations), but would never ask if counsel wants

to make a summation. That is a “given” in a jury

trial. However, closing statements are sometimes

waived in trials before a judge or referee without a

jury (bench trials), in the interests of saving time.

The language in CPLR 4016 is absolute in

affording the right to make a closing statement,

but if counsel wishes to give a closing statement in

a bench trial it is best to make an explicit request

to take advantage of the right afforded by CPLR

4016. It has been held in the Second Department

that when a defendant did not make a request to

give a closing argument, the trial court in a bench

trial (without a jury) did not err in concluding trial

without defendant’s summation. [Bank of New York

v. Walsh, 129 AD2d 668, 514 NYS2d 428 (2d Dept

1987).] However, no trial court will permit a jury

trial to conclude without affording the parties the

opportunity to “sum up” absent an explicit waiver of

that right.

§30:03 One Closing Per Party

If a party appears as both plaintiff and defendant

in the suit, the court need not allow the party more

than one closing or opening statement. This is true

even if the party in its different roles was represented

by different counsel. [See, e.g., Tomassi v. Town of

Union, 58 AD2d 670, 395 NYS2d 747 (3d Dept

1977) (substantial counterclaims between parties).]

Although it is a matter of discretion, trial judges

normally do not permit more than one lawyer to

sum up for each party.

Each party represented by separate counsel is

ordinarily entitled to have one summation on its

behalf. CPLR 4016 affords the right of closing

statement only to parties with “separate rights.”

Frequently, co-plaintiffs or co-defendants may not

have “separate rights.” For example, a wife suing

for personal injuries and her husband suing for loss

of services are not considered to have “separate

rights” such that each should be able to give a

separate closing argument. Similarly, vehicle driver

and owner defendants do not have “separate rights”

where permission to drive is not in issue. The analysis

of whether parties have “separate rights” is not the

same as whether parties are “united in interest” for

purposes of being granted peremptory challenges.

[See Ch 20.] For example, an auto accident plaintiff

may be “united in interest” with an adverse driver

defendant who has tendered policy limits, as against

a deep pocket automobile manufacturer in a suit

containing products liability issues. However, the

plaintiff and adverse driver in this case clearly have

“separate rights” and no court would hold that they

should not be allowed their own closing statements.

NOTE:

A party defendant should only be permitted

to give a closing statement if the issue of that

party’s liability will be determined by the jury.

In Maldonado v. Cotter, 256 AD2d 1073,

1075, 685 NYS2d 339, 341-342 (4th Dept

1998), in reversing a verdict for defendants

for other reasons, the Fourth Department

observed that “[p]laintiff was prejudiced

… when the court permitted the surgeon’s

attorney to participate in summations with

the knowledge that the court would grant a

motion notwithstanding the verdict should

the jury attribute liability to the surgeon.

The surgeon’s attorney was thereby able

to argue with defendants that the absent

defendants who settled with plaintiff were

wholly responsible for her son’s injuries.”