By the time you reach closing, jurors will have likely pretty much have made up their minds. If you’ve done your work in jury selection, opening, directs and cross, they hopefully are leaning your way and are rooting for your client. By closing, the jurors know the facts and what the dispute is. Closing argument is not the time to rehash the facts
The important closings are not made in the courtroom, they are made in the jury room. You want to arm jurors who are with you so they can advocate for the verdict you want. The courtroom is a classroom and you want to provide the arguments that jurors can use. For those jurors who are still on the fence, you want to bring them over.
The structure of a winning argument is the same as that for a winning opening statement; it should have a beginning, middle and an end.
We want to begin with something that will engage them, make them interested. We want an attention getter. Should you begin by thanking the jurors for their service? It depends. For a short trial, forget it and jump right into the attention-getter. For a long trial, say a couple weeks or more, yes, express sincere gratitude.
Your attention-getter should remind them of your theme and that theme should ideally remind them of a moral imperative. You could start with a quotation. For example in Augustin Ballinas v. New York Health and Hospitals Corporation, plaintiff’s counsel argued:
"Allow me to borrow a statement made a long time ago by Edmond Burke, an Irish statesman and orator speaking in, of all places, the English Parliament. Burke said, 'Something has happened upon which it is difficult to speak and impossible to be silent.'
"Ladies and gentlemen of the jury, you have seen unfold in this courtroom event that would make Edmond Burke’s words as applicable today as they were over two hundred years ago."
You could start with the theme that you first introduced in your opening statement. This brings symmetry to your addresses to the jury. In the Novell vs. Microsoft, plaintiff’s counsel echoed the fair play theme he introduced in opening statement:
“When we began this case on October 17th, I told you this case was about fair play. Novell wanted nothing more than to compete on the merits of its products. Unfortunately, as you have seen, Mr. Gates and Microsoft had other plans.”
Regarding the content of summation, normally the body of your address should cover six subjects. First of all, you want to interweave your case theory and theme into closing. Summarize your story. Don’t cover the details. By the time the jurors receive your closing, you will have done your job of making sure they have a firm grasp of facts.
Second, define the issues. This can be done with an elements chart showing what needs to be prove. As either a prosecutor or plaintiff’s counsel, go through each element with the aid of the element chart and apply the law to facts for each element. Once you have done this, point out that there is only one issue in the case (or two at most). In a civil case, you may utilize the verdict form or special interrogatories to narrow the issues.
Third, discuss the law. Here you explain and translate the law into understandable terms for the jury. Let’s take some common jury instructions. For example, in the O.J. Simpson murder case, the defense was that there was insufficient evidence—that the prosecution had not proven that Simpson was guilty beyond a reasonable doubt. Here’s prosecutor Vincent Bugliosi’s argument discussing the sufficiency of the evidence in the Simpson case:
Ladies and gentlemen of the jury, the evidence of Mr. Simpson’s guilt is so overwhelming in this case that you could throw 80 percent of it out the window and there still would be no question of his guilt. For instance, as we’ve previously discussed, we know that Simpson beat poor Nicole savagely, and she was in fear of her life at his hands. You recall she told officer Edwards, ‘He’s going to kill me, he’s going to kill me.’ I mean, who else would have had any reason to murder these two young people, who apparently were both very well liked and popular, and particularly in such a brutal, savage way? But let’s throw this evidence out the window. Let’s assume Mr. Simpson and Nicole got along well, just swimmingly, that he never laid a hand on her.
When he was charged with these murders, if he were innocent, he would have been outraged, blazing mad, at being charged with murders he did not commit, and would desperately want to prove his innocence and find out who murdered the mother of his two children. Instead, he writes this suicide note that absolutely reeks with guilt. . .
Here is another example from the O.J. Simpson case in which Bugliosi discusses circumstantial evidence in terms that jurors can understand when the defense had argued that circumstantial evidence was like a chain where if there is one weak link it is broken, there is insufficient evidence:
Circumstantial evidence, to the contrary, is like a rope. And each fact is a strand of that rope. And as the prosecution piles one fact upon another we add strands and we add strength to that rope. If one strand breaks – and I’m not conceding for a moment that any strand has broken in this case – but if one strand does break, the rope is not broken. The strength of the rope is barely diminished. Why? Because there are so many other strands of almost steel-like strength that the rope is still more than strong enough to bind these two defendants to justice. That’s what circumstantial evidence is all about.
Fourth, you will discuss damages. Here, you apply the instruction or verdict form on damages to the facts.
Fifth, if you have a rebuttal argument, plan your rebuttal in advance. You want to finish strong so save something powerful for rebuttal. Listen carefully to opposing counsel argument and note what counsel said that will enable you quote it and then crush the argument. For example, a prosecutor can reserve an argument on reasonable doubt until rebuttal because defense counsel often miss-quote the law—saying it’s “any doubt as opposed to a “reasonable doubt.” Consequently, in rebuttal, the prosecutor can argue, “Defense counsel told you that the state must prove the defendant’s guilt beyond any doubt. Is that the law? You heard the judge’s instruction—it’s proof beyond a reasonable doubt. Let’s look as the instruction that explains what a reasonable doubt is.”
Six, tell the jurors the verdict you are seeking and have some strong words for concluding your summation.
For more on Closing Argument consider Trial Advocacy: Planning, Analysis and Strategy.
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