Vol. 10, No. 3, Pg. 26. The Lost Art: An Advocate's Guide to Effective Closing Argument.

• Author: By the Hon. Joseph F. Anderson Jr.

South Carolina Lawyer

1998.

Vol. 10, No. 3, Pg. 26.

The Lost Art: An Advocate's Guide to Effective Closing Argument

26The Lost Art: An Advocate's Guide to Effective Closing ArgumentBy the Hon. Joseph F. Anderson Jr.In 1763, in a small brick courthouse in Hanover County, Va., a young lawyer named Patrick Henry began his career in a celebrated case that came to be known as the Parson's Cause. In winning that case, Henry took the first step toward building a reputation as an orator and defender of colonial rights--a reputation that would propel him into the spotlight in Williamsburg and beyond.

According to Henry's biographers, his summation (or "jury speech" as it was known in those days) so enthralled the audience that, immediately upon its conclusion, the spectators stormed over the courtroom rail, hoisted Henry to their shoulders and triumphantly paraded him across the courtyard to Shelton's Tavern, "where they celebrated long into the night."

Regardless of whether this story is true, it provides a good point of reference for the theme of this book. Closing argument was once viewed as one of the most important parts of a common law trial. In my view, it is still an important part, and perhaps the most neglected part, of any judicial proceeding. A strong argument can be made that the complexity of modern trials necessitates an even higher order of skill than was formerly necessary.

DEBUNKING THE MYTH

Most lawyers prepare for trial on the basis of a widely shared set of misperceptions. The first is that over 80 percent of the time jurors reach their ultimate verdict during or after the opening statements. This leads to the second misperception--that closing argument is, therefore, unimportant.

The notion that the opening statement determines the verdict is firmly embedded in the legal literature. Such luminaries as James Jeans and Thomas Mauet, among others, have vouched for its accuracy. The authority usually cited for the 80 percent effect is the University of Chicago Law School Jury Project, a comprehensive study of the American jury conducted in the 1950s.

In fact, as Professors William L. Burke, Ronald L. Poulson and Michael J. Brondino have pointed out, the Chicago Jury Project "never addressed the effect of the opening," but for some unexplained reason, "the 80 percent effect has been cited so frequently that it has risen to the level of a legal axiom even referenced by leading trial advocacy teachers."(William L. Burke et al., Fact or Fiction: The Effect of the Opening Statement, 18 J. Contemp. L. 195, 196 (1992).) After carefully reviewing the literature and conducting their own jury study, Professors Burke et al. concluded that the notion that 80 percent of jurors make up their minds after the opening statement is a myth.

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PREPARATION

[Preparation] is the be-all of good trial work. Everything else--felicity of expression, improvisational brilliance--is a satellite around the sun. Thorough preparation is that sun.

--Louis Nizer, Newsweek

December 11, 1973

In my work as a trial judge, it is not unusual for me to see lawyers

27working through lunch on the last day of a trial, frantically scribbling out notes on the back of a legal pad. What are these people doing? They appear to be committing the unpardonable sin of trial advocacy: inadequate preparation for closing argument.

In some ways, these lawyers may be attempting to flaunt their forensic...