Preparation and Presentation of Closing Argument

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 347-376

CLOSING

ARGUMENT

CHAPTER 30

PREPARATION AND

PRESENTATION

OF CLOSING ARGUMENT

§30:01 New York Trial Notebook 30-2

CLOSING

ARGUMENT

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.” CPLR

4016 specifies that parties close in inverse order

to their opening statements. See Chapter 21, §

et seq. “Upon all jury trials in criminal and civil

cases, the proper argument of the cause is as much

a part of the trial as the hearing of evidence. If an

issue of fact is involved, both parties have a right

to be heard by counsel in argument before the jury.

This is a valuable right secured to every suitor by

the principles of Anglo-American law.” [People

v. Marcellin, 23 AD2d 368, 369, 260 NYS2d 560,

561 (1st Dept 1965).]

§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