Craig MartinMuch folklore and myth surround our perceptions of closing arguments. So many times you will hear attorneys say that, “I’ll tie that together in closing,” or “I’m saving that point for closing,” and so many times, you will hear lawyers puff about how someone is such a great closer. Sometimes it’s even true, but most of the time those puffing statements are just that – puffing statements.

The closing statement should not be a surprise. The closing should emphasize and echo the themes that the trial team has developed throughout the trial – in voir dire, in opening, in direct examinations and in cross-examinations. As the thread that weaves together your David Bradfordclosing, the theme should be a short, memorable statement that incorporates key facts, suggests why your client wins and appeals to the jurors’ values and common sense. With the theme interlaced, the closing statement should tell the story of the case. Portray the facts that are likely to persuade the trier of fact (jury, judge or arbitrator) that your side is right and concede the facts that are inconsistent and place those facts in an understandable context. Your closing argument should provide the jurors with the tools to argue your case in the deliberation room.

The closing statement should be done well before the trial even begins. Indeed, the closing statement should be an integral part of the trial plan, so that the trial team understands which witness, document or other evidence will be needed to establish the points to be made in closing. The closing should echo the opening. While the opening may be about framing the story, predicting the evidence and establishing credibility, the closing should be about explaining how and why the evidence demands a particular result. The closing statement, of course, should tell the story of the case.

When organizing your closing statement, your goal is to find the most effective way to explain what is important and what is not. In some cases, this may mean organizing by topic, in others, a chronological presentation may work best. Your strongest points should be presented first and last, as this is when the jurors will be most attentive. Be careful not to end on a defensive note, even during rebuttal. During rebuttal, you should be careful to maintain your organizational structure rather than adopting your adversary’s. Leave the jurors ready to walk into the deliberation room remembering and understanding your story.

Regardless of how you organize your closing statement, tell the jury how you are going to proceed and, at the end, remind them what you covered. Giving the jurors a roadmap will make it easier for them to follow your argument and remember your main points. Consider using a chart to highlight your points or to show how the parties and witnesses are connected. Visual aids can help to drive your points into the jurors’ memory. If you were a juror, would you remember the document discussed two weeks ago? You should be careful, however, not to overwhelm the jury. You will be most effective if you present only the most persuasive visual aids and evidence – and if you move your adversary’s exhibits outside of the jury’s view when it is your turn to speak.

When delivering your closing statement, follow the rules. You do not want to lose the jury’s confidence by making improper arguments or stating too many objections. Know the time restrictions relevant to your closing statement, whether there are limits on the use of visual aids, and whether you will be allowed to step away from the podium or counsel’s table. If you refer to jury instructions, then make sure that those are the exact instructions that will be given. Being familiar with the courtroom rules and logistics, such as where to find the light switch, will help you look comfortable in front of the jury.

Finally, tell your client’s story using your personality. Although many articles provide this advice, it is critical and therefore worth repeating. If you have a straight-forward presentation style, then don’t try to be a comedian or preach a sermon. You may undermine your credibility if you look uncomfortable or look like you are acting. An outline can help you avoid missing important points. But do not bore the jurors by reading from a script, in a monotonous voice, as you stand like a statue behind the podium. Use your body language and gestures; use vocal inflection and pacing; use your memory! You should be connecting with the jurors, making eye contact and further explaining your points when they look confused. Practice ahead of time in front of a mirror, your colleagues or a video camera. Better yet, practice in front of all three. Some practitioners recommend that you practice skipping between issues in your outline, so that you are flexible with the sequence and comfortable with each topic. Your argument will be most powerful when you are comfortable, engaging and credible.

As with the opening statement, you need to be a truth sayer during your closing argument. Think about it: the judge and the jury have witnessed the evidence, heard the stories from the witnesses themselves and reviewed the critical documents. As the lawyer, you must demonstrate that you understand and appreciate the evidence, and when you say what the evidence means, you draw reasoned and reasonable inferences from it. The impression you want to leave with the jury is that you understood and presented things fairly. That will go a long way to achieving a result you like.

Craig C. Martin and David J. Bradford are Co-Chairs of Jenner & Block’s Litigation Department.

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