Thoughts about Closing ArgumentAuthor(s): Raymond W. BerganSource: Litigation, Vol. 12, No. 4 (Summer 1986), pp. 36-38Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29759105 .

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Thoughts about Closing Argument

by Raymond W. Bergan Consider the purpose of closing argument: to persuade the jury to accept the version of the facts most favorable to your client.

Whether the trial is a one-day affair or drags on over weeks or months, final argument reminds the jury of those facts.

In opening statement you drew a road map of where the case was going; what the evidence would reveal; and what the wit? nesses both for and against your cause were going to say. You told the jury what to look for as the evidence unfolded. You told them perhaps that a trial is like a jigsaw puzzle or a mosaic, and no matter how hard the lawyers may try, they can only pre? sent one piece of it at a time. You may have told them that an

opening statement was like a road map, and in that opening you gave them some guideposts or markers to look for along that road.

Then as the trial developed ? as witnesses testified on direct

and cross-examination and as exhibits were introduced ? you were able to put the bits and pieces of evidence before the jury. Now you are about to tell the jury how all of those bits and pieces fit together and how they should look at that evidence in the

light most favorable to your client. Just as in the opening statement you gave a calm and unemo?

tional description of things to come, in closing argument you are going to make the jury want to decide the case for your client. You are going to make the jury want to find the facts that lead it to that result. How to do this starts not on the night before closing argument, not even during the heat of the trial itself, but as you put your trial plan together, days or even weeks before the trial opens.

As you prepare your trial plan, you should not only have your opening statement in mind, but your closing argument as well. As you outline the witnesses you will produce, what they will

say, and the documentary evidence you will introduce through each witness, consider how to discuss the witness and the evi? dence in your opening statement and what import it may have in closing argument. Any trial is a three-act play?opening statements, evidence,

and closing arguments. As in any theater, the parts must work

together. Of course, it all begins with your view of what the facts in the case will disclose.

The author is a partner in the Washington, DC ,firm of Williams & Connolly.

Never knowingly predict a line of evidence on opening that is not likely to occur. But when reasonably confident of what the facts will be, as you prepare your opening statement, look for things about which you can alert the jury. In closing argu?

ment, you will then be able to remind the jury of what you told them to look for and what they later saw. As you prepare your direct and cross-examinations, look for things that on closing you will be able to tell the jurors that they heard. Thus, the entire trial preparation should lead up to a closing argument. And in closing argument you will draw together all of those items of evidence that the jury heard and the significance of

which they may not have fully grasped at the time.

How many times, for example, did you tell the jury in your opening statement to look for a specific item of evidence? How

many times, therefore, will you be able to remind the jury that

you told them this on opening and that the evidence that you predicted they would hear, they did in fact hear?

This not only enhances your case, but it enhances your own

credibility as well. And whether we like to admit it or not, jurors frequently decide cases based not simply on the witnesses'

credibility and the weight of the evidence, but on the lawyers' credibility.

Advocacy can make a difference. Set yourself up so that you can say to the jury, "Do you remember that I told you in my opening statement you would hear evidence that Mrs. Smith saw the accident from her bedroom window?" Then, being able to remind them that Mrs. Smith did see the accident, you have reminded the jury not only of a piece of evidence that may be

important, but that they can find you to be credibL. You have told them what they would hear. They heard it, and now you have reminded them that days or weeks ago you predicted that.

You have proved your credibility. To the extent that you can do that, time and again in a long case, and perhaps only a few times in a short case, you have enhanced your standing with the jury. If there is later a dispute over how to view a piece of evidence, your credibility with the jury may carry that day. We will never know how often it happens. Human experience tells us that it does happen. Do not give up that opportunity.

Although it is difficult to use words like "never" and "always," I would never waive the right to make an opening statement.

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And in only the rarest of cases would I seek permission to defer

my opening until after the end of my adversary's evidence. This is true even in a criminal case in which opening statements are

frequently waived until the end of the prosecution's case. In

my judgment, that does a great disservice to a defendant.

Think what the jury is exposed to in a criminal case when the defendant delays his opening: The prosecutor makes an

opening statement. The defense counsel sits back and announces that with the permission of the court, he will reserve his opening statement until it is time to present a defense. Fol?

lowing the prosecutor's opening statement the jury hears a

parade of witnesses presented by the prosecutor. For days or even weeks, the jury hears only the evidence that the prosecu? tor seeks to present. Of course that one-sided view is tempered by cross

examination, but only a little. No one has told the jury what to look for from the defense viewpoint. No one has told the

jury that it will eventually hear the defense side of the case, and perhaps most important, no one has told the jury what the defense side of the case is.

Now it may be that there really is no defense side. There are cases like that. But even then, I urge defense counsel to pre? sent an opening statement in the beginning just to remind the

jury that no matter how thin the bread may be sliced, it still has two sides.

So, you have prepared your trial plan, you have used your opening statement to point out some specific facts for the jury to look for, and you have introduced those facts into evidence.

You are ready to tell the jury on closing argument what those facts are and why they call for a verdict for your client. What do you say, and how do you say it?

Perhaps the best advice is wrapped up in two little words: be yourself. Can you make a well-organized closing argument without notes? If so, do it.

Are you, on the other hand, like most of us, who require at least an outline of what you are going to say? If so, prepare that outline, bring it to the lectern, and use it. No one will hold your need for notes against you.

Instead, are you one of those who need something more than notes? Something more than 3x5 cards? Something more than an outline on a yellow legal pad? Are you like some of us who need much of the argument actually written out? Try to avoid that, but if it is absolutely essential that you do it, do it far enough in advance and rehearse your presentation often enough so that

you will not have your head constantly buried in the lectern as you are addressing the jury. But above all, prepare the clos?

ing argument in the manner in which you are most comfort? able in giving it.

Are you comfortable acting like a formal orator? Most of us are neither born nor trained to be great (or even good) pub? lic speakers. If you fall into that large category, do not try to

change your style on closing argument. Give the argument in a simple, sincere, conversational tone. Simply tell the jury what it is you want to tell them. Remember the three principles of any good presentation

? tell them what you are going to tell them, tell them, and then tell them that you have told them.

Are you good at being humorous? If so, a little self

deprecating humor is sometimes acceptable. But do not ever

try to turn your humor on your adversary. It tends to become bitter. Jurors resent it. And do not turn an argument into a series of one-liners. Jurors believe ? and rightly so

? that the place in which justice is dispensed is a sacred place. So, too, do most trial lawyers. Do not defile it by making it the stage of the Rialto. If you are not good at humor, do not try to do it in closing argument. Most of us are not trained actors and are not good at holding

the stage for a sustained period of time. Most of us do not carry off role playing very well. Most of us are comfortable only play? ing ourselves. If you fall into that very large group, do not be uncomfortable about it. Adapt your style to it. If your adver?

sary's style is different than yours, do not try to match his style. You run the risk of being thought of as artificial.

Bear in mind that the jury has watched the two of you through? out the trial. The jury has some idea of what your style is. Is it table-pounding and arm-waving? Or is it quiet and persua? sive? More likely than not, it lies somewhere in between. Do not try to vary that style simply for the period of time you are

given in closing argument. Do those things that you do best.

By now you are your own best critic. You know the things you do well and the things you do not do well. Keep them up dur?

ing closing argument. Do not try to emulate your adversary if your style is not his. It is a difficult thing to do, and more

important, it probably will not work.

Try to make everyone in the case seem credible.

Everyone. I know that is not always possible. There are times when there

are simply flat-out, head-to-head testimonial conflicts in which

you must argue that one person is consciously shading the truth. Those cases are, however, quite rare. Even in the cases in which

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you do find a head-on conflict between one witness and another, there are very likely huge areas of testimony that can be blended

together into one cohesive story. We require jurors to judge, but like most of us, that makes

them uncomfortable. "Judge not, lest ye be judged." That Old Testament adage applies to jurors who are uncomfortable in

making judgments on their fellow men. Most of us simply do not like to conclude one person is lying. Most of us feel more comfortable thinking that a person was mistaken, that his angle of sight was imperfect, that his recollection is not very good, or that he simply did not have all the facts and made a judg? ment based on incomplete information.

By doing this, we are frequently able to say to ourselves that

"yes, indeed, John and Henry really did see the same thing." We are able to say to ourselves that "If John had seen that from the same angle that Henry saw it, he might have described it a little differently." Or, "It's been so long since John read that document, no wonder he didn't remember all of it."

I learned this lesson years ago when an elderly juror came

up to me after a short criminal trial in which I had unsuccess?

fully represented one of the defendants. I had argued vigorously (but unsuccessfully) that a police officer was simply not tell?

ing the truth about an important event. It seemed at the time like the right attack to make. But as I was leaving the court

Do not oversell your case. In

closing argument, be careful not to give your opponent an

opening through which to walk.

house, one of the jurors ? a wise, older lady

? came to me and said, "Young man, why did you attack that police officer so? You really didn't have to. Why didn't you simply tell us how we could have believed everyone and still have acquitted your client?"

I have often thought about what that woman said. She was

right. I could have made that kind of argument. Had I been a little less vigorous and a little more willing to see that the stories of all the witnesses could have been blended together, I might have made a different argument.

The point is this. Juries simply believe that most people are

trying to tell the truth. That is especially true with older wit?

nesses, those of some prominence, and those in authority. But now a warning. It does not always work. There are times

when you must make a head-on attack on the honesty of a wit? ness. But not very often. Why? Look back on your own prac? tice and think of the rare occasions in which you have really been required to show that a witness was untruthful. We do not do this in our daily lives; we make excuses for each other. I say my son forgot to do his homework; that my neighbor for?

got to return the lawnmower; that my friend was mistaken about the debt he owed. If we do these things in our daily lives, we

should expect jurors to do the same. Do not oversell your case. When you are wound up in clos

ing argument, be careful not to give your opponent an opening through which to walk. A simple example will be enough. A witness for your opponent has testified that he believed a docu? ment he signed many years ago meant one thing. But over the

years he told other people it meant something quite different. On cross-examination you point out his prior inconsistent state? ments. Flustered, he first denies making the statements, but

finally admits he did. You have attacked his credibility and set him up for your closing argument.

Then on redirect examination, your opponent introduces some evidence of a prior consistent statement.

In closing argument, give the devil his due. Give the wit? ness credit for having been consistent at times. Do not make the mistake of relying exclusively on his prior inconsistent state?

ments and ignoring the prior consistent one. What an oppor? tunity you present to your opponent if you do that. You will

give him a chance to destroy not only your carefully crafted

closing argument, but to attack your own credibility as well.

Do not try to usurp the judge's authority to give final instruc? tions. Judges do not like it, and may even interrupt the argu?

ment to criticize the advocate. That is bad enough, but one also runs the risk of having the judge pull the rug completely out from under him when the judge gets his turn.

I once heard a skillful trial lawyer make a fine closing argu? ment in which he told the jury what "reasonable doubt" meant. He told the jury a number of times how they could find his cli? ent innocent because they had to have a reasonable doubt as to his guilt. All of us who have tried criminal cases have done

much the same thing. We have tried to describe reasonable doubt in layman's terms. It is not very easy. In this instance, it backfired because, as the judge began to instruct the jury, he said, "Reasonable doubt is a very difficult concept. But before I tell you what it is, let me tell you what it is not. It is not what the defense counsel said it was." An otherwise com?

petent closing argument was destroyed. One runs the risk in any case in which he tries to wrap a clos?

ing argument around the instructions he believes the judge will

give. There is always the danger that he will unintentionally misstate the instructions. If he does, he has left himself and his client open for a body blow from which neither is likely to recover.

In most jurisdictions, courts are required to share with coun? sel their instructions before closing argument is made. In others, judges do it as a matter of courtesy. In some jurisdictions and in some cases, counsel are told not to advise the jury what the

judge's instructions will be on any given subject. Whatever the

rule, counsel must be very careful not to trespass on the judge's prerogative in such a way that the judge ends up criticizing him ?

tacitly or directly ? in the presence of the jury.

Do not overstay your welcome. That can be said in a num? ber of ways, like the older preacher who told his new assistant to make his sermons shorter because "the mind can only absorb as much as the body can endure." Do you need more proof? You will not give a three-day oration if you remember that the

Gettysburg Address only took President Lincoln three minutes to deliver. The Declaration of Independence is a very short

document, but it changed the course of the western world. The Sermon on the Mount was only eight lines long.

Let me sum it up, and then I have finished: Be yourself, be

direct, be honest, and be gone. All of that is easier to say than to do, but it is worth the effort.

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