The American Bar Association
Young Lawyers Division
2016 Annual Meeting
San Francisco, CA
That’s a Wrap: the Good, the Bad, and
the Reversible in Closing Arguments
The Palace San Francisco
Friday, August 5
10:30 AM – 11:30 AM
That’s A Wrap: The Good, The Bad, and
The Reversible in Closing Arguments
Presented at:
ABA Annual Meeting
San Francisco, CA
Friday, August 5, 2016
10:30 a.m. - 11:30 a.m.
Palace Hotel
Presidio-2nd Floor
Sponsored by: ABA Section of Litigation, Young Advocates Committee & Trial Evidence Committee
Co-Sponsored by: YLD Litigation Committee
Speakers:
E. Martin Estrada
Munger Tolles & Olsen LLP (Los Angeles, CA)
Merrick L. Gross
Carlton Fields Jorden Burt, P.A. (Miami, FL)
Rebecca C. Kibbe
K&L Gates LLP (Miami, FL)
Moderator:
Adrian K. Felix.
Carlton Fields Jorden Burt, P.A. (Miami, FL)
TABLE OF CONTENTS
“Lasting Impressions: The Role of Closing Argument,” ABA Section of Litigation
Annual Conference (April 2005)
“Proper and Improper Closing Argument,” Published in Criminal Justice, Vol. 26,
No. 2, Summer 2011
O.J. Simpson: Excerpts from Johnnie Cochran’s Closing Arguments
“Closing Arguments: 10 Keys to a Powerful Summation,” Young Advocates, ABA
Section of Litigation (September 2013)
Appendix A: General Rules Governing Closing Arguments, 4 Bus. & Com. Litig. Fed. Cts.
§ 42:2 (3d ed.), ABA Section of Litigation
Appendix B: The Golden Rule – Caudle v. Dist. of Columbia, 707 F.3d 354 (7th Cir. 2013)
Appendix C: ABA Model Rules of Professional Conduct (Rules 3.5);
ABA Model Code of Professional Responsibility (DR 7-106 Trial Conduct)
Appendix D: Presenter Biographies
ABA Section of Litigation Annual Conference, April 20-23, 2005:
Lasting Impressions: The Role of Closing Arguments
Lasting Impressions:
The Role of Closing Argument
Linda L. Listrom
Jenner & Block LLP
Chicago, Illinois
THE ROLE OF CLOSING ARGUMENT
Lets begin by talking about what closing argument is not. Closing argument is not the time in the trial
to begin to tell the jury your story. Nor is closing argument the first time you articulate your theory or
themes. If you have tried the case properly, you began the trial by telling the jury a story in opening
statement. And this story was thematic -- that is, it connected to key values possessed by most jurors.
Then, as the trial progressed, you developed the evidence which supported that story. If you have
failed to tell a thematic story, and if you have failed to develop the evidence which proves that story,
you cannot win the case in closing argument. If you have tried the case properly, closing argument
will be an extension of everything else you have done during the trial. If you have tried the case
improperly, closing argument will be irrelevant.
The purpose of closing argument is to give the jurors the tools that they need to reach a verdict. In a
well tried case, both the plaintiff and defendant will have themes and each party’s themes will resonate
with at least some of the jurors. For this reason, when the jurors begin their deliberations it is likely
that the jurors will be divided, with some favoring the plaintiff and some favoring the defendant. As
they deliberate, the stronger jurors will become advocates who attempt to persuade the other jurors to
their view of the case. To persuade the others, these jurors will use what they have heard in closing
argument. In closing argument, then, you must tell the jurors what is important to their decision and
why. You must also explain what is unimportant, and why. You must remind them of the evidence
they have heard during the trial and explain why this evidence entitles you to a verdict. In short, you
must give the jurors the ammunition that they need to argue your case effectively to the other jurors.
Closing argument is the only time in the trial when you can do this effectively. In contrast to other
phases of the trial, in closing argument you are permitted to argue. This means that you can not only
remind the jurors about the evidence they have heard, you can also explain to them why it is important
to the decision they must make. Argument is a powerful tool. Below we discuss how you can use this
tool effectively.
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ORGANIZING THE CLOSING ARGUMENT
Your decision as to how to organize the closing argument is crucial, for several reasons. First, and
most obviously, a well-organized closing argument is easier for the jury to follow. This is particularly
important if your case is complex or your closing argument will be lengthy. Second, and even more
importantly, when you organize the closing argument you have an opportunity to emphasize what is
most important to your case. Organized properly, the closing argument will emphasize the strengths
of your case and minimize the weaknesses. Organization is just another tool available to you to show
the jury which evidence you consider to be most important. Here are some suggestions for how to
organize your closing argument effectively.
Organize your argument by topic. The topical method of organization allows you to organize and
present the facts in the manner that is most persuasive. Do not organize your closing argument
chronologically. Sometimes, we are instinctively drawn to chronological organization because we
have heard so often that during a trial we must tell the jurors a story. What better way to tell a story
than chronologically? But when you organize your closing argument chronologically, you may be
forced to juxtapose two events because they occurred close together in time, even though these two
events are completely unrelated to one another. As a result, the point that you are trying to make may
become muddled or even lost. By organizing your argument around key topics you have the
flexibility to present the facts in a way that is most persuasive.
To select your topics focus on your theory, themes and story. Ask yourself the following question:
What is the reason that the jury should return a verdict in favor of my client? You should be able to
answer this question in a sentence or two. If there is more than one reason, what are the two or three
most persuasive reasons? The answers to these questions will be your topics for closing argument.
For example, let’s assume that you represent the plaintiff in a personal injury case. The plaintiff, a
high school student, suffered serious injuries when he was struck by a city bus at a busy intersection.
The plaintiff and the defendant disagree about how the accident occurred. The plaintiff contends that
the bus driver was nearing the end of his shift and was in a hurry to finish his route. He ran the light at
the intersection, colliding with the plaintiff, who was crossing the street. The defendant contends that
the plaintiff, not the bus driver, was careless.
As counsel for the plaintiff you will want to divide your opening argument into three topics: First,
you should talk about the plaintiff. You should remind the jurors that the plaintiff was full of promise.
He was an honor student at his high school and captain of the basketball team. On Sundays he
volunteered his time at a soup kitchen run by a local church. During his senior year, before the
accident, he had applied to Harvard, where he hoped to be a pre-med student. Second, you should
explain what happened at the intersection. You should remind the jury of your theory -- that the bus
driver ran the red light -- and describe in detail the evidence which supports this theory. Third, you
should describe the plaintiff’s injuries. You should remind that jury that as a result of the accident the
plaintiff is confined to a wheelchair and unable to walk; and you should describe how this affected the
plaintiff’s life and his future. By covering these topics, you will discuss all of the evidence that is
legally sufficient to entitle you to a verdict.
Now lets assume that instead of representing the plaintiff you represent the defendant. As counsel for
the defendant, you should organize your closing argument around your own topics, rather than simply
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responding to the points made by counsel for the plaintiff. You probably should not talk about the
plaintiff’s personal qualities and accomplishments. The jurors probably like and sympathize with the
plaintiff. This is a strength in the plaintiff’s case that, as counsel for the defendant, you do not want to
emphasize. Instead, it is your position that no matter how good a person the plaintiff is, and no matter
how serious his injuries, he is not entitled to recover if his carelessness caused the accident. You
should choose topics that emphasize what you consider to be important about the case.
You may choose to divide the argument into two topics: what the plaintiff did; and what the bus
driver did. This method of organization allows you to compare and contrast the behavior of the
plaintiff with the behavior of the bus driver. Under the first topic you should describe the evidence
which proves that the plaintiff was negligent. You would explain that earlier in the day he had taken a
final exam in chemistry and that he knew it had not gone well. As he walked home, he worried about
his final grade in that course, and how it might affect his prospects for admission to Harvard. To help
take his mind off of his troubles, he turned on his IPod and cranked up the volume. He was listening
to one of his favorite songs, singing along, when he stepped into the intersection. Distracted, he did
not see the bus and did not notice that the light had just turned red. You should then move on to the
second topic and remind the jurors about what the bus driver did. The bus driver pulled up to the curb
and opened the doors of the bus, so that two passengers, a mother and her small child, could board.
He watched as the passengers dropped their fares into his fare box. He waited patiently for his two
new passengers to take their seats. He looked up and noticed that the light was turning green. He
checked his mirrors before easing the bus away from the curb and into the intersection.
You can see from this example how the topic method of organization allows each party to play to its
strengths. The strengths of the plaintiff’s case are the plaintiff himself and his horrible disfiguring
injuries. Both themes are emphasized in the closing argument. The strengths of the defendant’s case
are the careless inattentive behavior of the plaintiff and the careful attentive behavior of the bus driver.
By comparing and contrasting the conduct of the plaintiff with the conduct of the bus driver, counsel
for the defendant has emphasized these aspects of the case.
In arranging your topics in order, use the principles of primacy and recency. Research teaches us
that jurors are most likely to remember what they hear first in your argument and what they hear last.
Among other things, the jurors are likely to be most attentive at the beginning of your closing
argument and at the end. You should follow these principles of primacy and recency in organizing
your closing argument. If you have three topics, you should discuss the two strongest topics first and
last. The plaintiff’s argument in the foregoing hypothetical case provides a good illustration of this
point. As discussed earlier, one of the plaintiff’s strongest topics is the plaintiff himself, so counsel for
the plaintiff should begin his argument with this topic. A second strong topic is the horrific nature of
his injuries, so this is a good ending topic for the argument. Of the three topics counsel for the
plaintiff has chosen, the weakest is: What caused the accident? This topic is relatively weak because,
unlike topics one and two, on this topic the evidence is disputed. As counsel for the plaintiff you do
not want to end your closing argument on such a defensive note. So, you should position this topic in
the middle. When you reach this topic, you should explain your theory as to what caused the accident
and you should explain the evidence which supports your theory. You should also rebut the
defendant’s theory. You can then end the closing argument on a strong point -- the undisputed
evidence about the plaintiff’s injuries.
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Build up your theory before rebutting your opponent’s theory. In closing argument you must
give the jurors a reason to return a verdict in favor of your client. In a civil case, your reason must be
something other than: My opponent is wrong. Whether you represent the plaintiff or a defendant you
must help the jury understand why a verdict in favor of your client is a fair result. You must present
an affirmative view of the case that they will embrace and use to reach their verdict. In closing
argument, you must start by building your affirmative case and then, and only then, rebutting your
opponent’s view of the case. Your task is relatively straightforward if you represent the plaintiff. You
should spend your initial argument discussing your affirmative topics and wait to challenge the
defendant’s theory in rebuttal. Your task is somewhat more complicated if you represent the
defendant. As counsel for the defendant you must challenge the plaintiff’s theory and you will have
only one argument in which to do so. But, you should not rebut the plaintiff’s theory until you have
first presented your own theory and argued the evidence which supports it. You may want to begin
your closing argument with a brief unequivocal denial of the plaintiff’s theory: “The plaintiff claims
that my client was negligent. The plaintiff is wrong. And I am going to show you why.” But, once he
gives this brief denial, you should move immediately to a discussion of your theory. Hence, in the
foregoing example, as counsel for defendant, you should begin by discussing the evidence which
shows that the plaintiff was careless before discussing the plaintiff’s theory that the bus driver was
negligent.
In rebuttal, use your agenda, not the defendant’s. If you represent the plaintiff, you can prepare a
detailed outline for your initial argument in advance, but it is more difficult to plan your rebuttal. You
will not know what points you need to rebut until you have heard the defendant’s argument. However,
you should not make a list of the defendant’s arguments in the order in which the defendant makes
them, and go through the list of points in order, rebutting each one. By organizing your rebuttal in this
way, you are ignoring your agenda -- the topics which you believe are important -- and, instead, you
are using defendant’s agenda -- the topics which the defendant believes are important. Your rebuttal
will, inevitably, sound defensive. Instead, you should organize your rebuttal argument around the
same topics that you used in your opening argument. To prepare for rebuttal, you should begin by
creating a chart on a pad of paper. Draw a line down the middle of the paper, creating two columns.
In the first column write a rough outline of your opening argument. You should list each of your
topics and your key points under each topic. Leave plenty of space between the topics. Then, as you
hear the defendant’s argument, write down each point made by the defendant in the first column. As
you do so, you will have to decide where the point best fits into the organizational framework which
you used in your opening argument. Once you have found a place for the defendant’s argument, in the
second column, next to that argument, write a few brief notes about your response. When the
defendant completes his closing argument, you will have an outline for your rebuttal. You should go
through your topics in order, just as you did in your initial argument. You should begin each topic by
restating your key point. If the defendant ignored the topic in his rebuttal, tell the jurors so. If the
defendant made an argument which relates to that topic, state the argument and then state your
response. Using this method you will respond to each of the defendant’s arguments, and, at the same
time, remind the jurors of your key themes.
Tell the jury how you have organized your argument. It will be much easier for the jurors to follow
your argument and remember your key points if you use signposts to guide them. There are several
ways that you can use signposts in your closing argument. The simplest way is to explain at the
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beginning how you have organized the argument: “I am going to be talking about three different
topics. First, I will talk about…. Then, I will talk about… and Finally, I will talk about…” An even
better approach is to list your topics on a demonstrative exhibit entitled, “Plaintiff’s Closing
Argument” or “Defendant’s Closing Argument.” You can list the topics on a board, which is prepared
in advance by a graphics consultant, or, you can simply write the topics on a pad of paper which you
place on the easel. At the beginning of your argument, you can refer to the exhibit and its list of
topics. Throughout the argument you should leave this exhibit up on the easel. You can then use the
exhibit to transition from one topic to the next: That concludes our discussion of the first topic, “What
the Plaintiff Did.” Now lets move on to the second topic, “What the Defendant Did.” With this
device the jury always knows where you are in your argument, where you have been, and where you
are going next.
CHOOSING THE CONTENT FOR YOUR ARGUMENT
Once you have selected your topics and arranged them in the most persuasive order, you are ready to
select the content for your closing argument. Here are some suggestions for how to make those
choices.
Frame the issues for the jury. In closing argument it is your job to tell the jury what they must
decide. You should explain to the jury what is important to their decision. You should also explain
what is not important to their decision. Rarely, if ever, are all of the facts in dispute. Often, the
plaintiff and defendant disagree, not about what the facts are, but about which facts or issues are most
important. If in your view, the jury only needs to decide one issue in your favor, tell them so. If your
opposing counsel is confusing the jury by arguing a point that is irrelevant, explain why it is
irrelevant. For example, in our hypothetical case involving the bus accident, as counsel for the
defendant you may want to concede that the plaintiff suffered serious injuries, but argue that this is
beside the point. The issue which the jury must decide is: Who was at fault? If the plaintiff caused
the accident, he is not entitled to recover, no matter how serious his injuries. In short, as an advocate,
it is your job to frame all of this for the jury, so that when they retire to their deliberations, they know
exactly what they need to decide.
Be selective. You do not need to describe every piece of evidence in your closing argument. In any
trial, the parties present facts which are not particularly relevant. If you have chosen your topics
correctly, you can then use those topics as a guide. For each topic, you will want to discuss the
evidence that relates to that topic. Any evidence which does not relate to one of your topics is
unimportant to your argument and can probably be ignored. Does this mean that you must use every
piece of evidence which relates to one of your topics? Not necessarily. In deciding how much
evidence to use to support a topic, you should ask yourself: Is this topic in dispute? If not, you
probably should describe your best evidence on the topic, but you probably do not need to remind the
jury of every piece of evidence they heard. On the other hand, if the issue is one that is in dispute you
will probably want to remind the jury about all of the evidence that supports your position. For
example, in our hypothetical case, as plaintiff’s counsel you should spend some time reminding the
jurors about the extent of the plaintiff’s personal qualities, but you should spend more time arguing
your theory as to who caused the accident.
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Use your best, most persuasive, evidence. The best evidence is, of course, an admission by the
opposing party, whether in a document or in testimony. Undisputed evidence is also very persuasive
and in almost every trial at least some of the evidence will be undisputed. Equally important, but
often overlooked, is evidence that is persuasive based upon common sense and everyday experience.
For example, most of us -- and most jurors too -- have seen teenagers walking down the street,
listening to their IPods, oblivious to the world around them. It makes sense that someone who is
listening to an IPod would not notice that a traffic light had changed from green to red. This fact is
powerful evidence for the defendant, because it is consistent with what the jurors have learned about
the world outside the courtroom.
Show the jury the evidence. Don’t just tell the jury about the evidence. Show it to them. Do not
assume that just because the jury saw a document earlier in the trial, they remember it now. If a
document is important to your theory, show it to the jury again in closing argument. If you are using a
courtroom presentation system, document camera or overhead projector, display the document on the
screen. Remind the jurors about what the document says, by highlighting a key passage and reading it
to them, slowly and with emphasis. Then, explain to the jurors why the document is so important.
Similarly, if a witness gave important testimony, read from the trial transcript or, better yet, display the
transcript on a screen, highlight the key testimony and read it to them. The precise words of the
witness, as recorded in the trial transcript, are much more effective than your paraphrasing of
testimony. When you read from the transcript, you should also remind the jurors who the witness is
by connecting the witness to the case. The jurors may not be able to connect names with testimony.
They may not remember the witness named “Mr. Jones.” But they will probably remember if you
explain, “You remember Mr. Jones. He was the store clerk who was standing on the curb when the
plaintiff tried to cross the street. He saw everything that happened.”
Use Jury Instructions and Verdict Forms. In most jurisdictions, there is a jury instruction
conference in advance of closing argument. If you know how the judge is going to instruct the jury,
you can use the jury instructions in closing argument. Of course, you do not want to use all of them or
even most of them. How do you choose which ones to use? Think of the jury instructions as another
piece of supporting information. If a jury instruction provides support on an important topic in your
argument, you may want to either read from it or refer to it. For example, in our hypothetical, the
judge may be planning to instruct the jury on either contributory or comparative negligence. In your
closing argument as defense counsel you will, of course, want to explain all of the evidence which
shows that the plaintiff was negligent. This argument will be even more effective if you also explain
to the jury that the trial court will instruct them that contributory negligence is a defense to the
plaintiff’s claim. But, a word of caution is in order. If you have not had your jury instruction
conference before closing argument, it is hazardous to refer to anticipated jury instructions in closing
argument. If you tell the jury that the judge will instruct them in a particular way, and he does not, the
jury may conclude that the judge does not agree with your case.
Do not ignore bad facts. The jury will undoubtedly remember them. Rather than ignoring bad facts,
you should explain why a bad fact does not matter. In our hypothetical example, it may be true that
the plaintiff was listening to his IPod when he stepped into the intersection. But, the plaintiff would
argue that does not matter, because the pedestrian saw that the light was still green when the plaintiff
stepped into the intersection. Whether he was distracted is irrelevant.
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Resolve conflicts in the evidence.
Sometimes the evidence is in conflict. In these situations, you
should argue to the jury why your evidence should be believed. For example, if the testimony of the
witness contradicts a contemporaneous memorandum or letter, counsel should argue to the jury that
the document, written at the time of the events in question, is more reliable than the witness’s memory
of what happened five years ago. Whenever possible, you should try to reconcile the conflicting
testimony of witnesses without accusing one of the witnesses of lying. Jurors are reluctant to
conclude that a witness has lied. Moreover, the jurors often must base such a conclusion on their
impressions of the witness, which are necessarily subjective. While you may be convinced that the
opposing party is lying, it is difficult for you to know how the jurors have reacted to the witness.
Usually, it is possible to resolve conflicts in the evidence without making this accusation. For
example, lets assume in our hypothetical case that, in addition to the bus driver and the plaintiff, there
are two eyewitnesses to the accident. One is a pedestrian who was walking towards the intersection,
just a few feet behind the plaintiff. She has testified that the light was still green when the plaintiff
stepped into the intersection. The second was a passenger seated on the bus, six rows from the front.
He has testified that the bus driver had the green light when the accident occurred. As counsel for the
plaintiff you should not attack the integrity of the passenger on the bus. Instead, you should argue that
the pedestrian had a better opportunity than the passenger to see the stoplight and the accident.
As counsel for the defendant, anticipate the plaintiff’s rebuttal argument. In most jurisdictions in
a civil case there are three closing arguments. The plaintiff argues first, followed by the defendant’s
argument, which is then followed by the plaintiff’s rebuttal argument. Under this format the defendant
faces a challenge: He or she only argues once. After the defendant argues, the plaintiff has an
opportunity to rebut that argument. As counsel for the defendant you must, at least to a certain extent,
anticipate the plaintiff’s rebuttal and respond to the plaintiff’s arguments before he or she makes them.
But you may be concerned that if you anticipate an argument and then counsel for the plaintiff does
not make this argument on rebuttal, you have unnecessarily undermined your own case. Moreover, it
is difficult to anticipate the plaintiff’s arguments without sounding defensive. On balance, you should
anticipate and rebut the plaintiff’s key arguments. You should not, however, try to anticipate each and
every argument that the plaintiff may make. You should take care to organize your closing argument
so that you do not end your argument on a defensive note, rebutting the plaintiff’s theory. For
example, in our hypothetical case, lets assume that it is undisputed that the plaintiff had failed a
chemistry exam earlier in the day and was listening to music and singing as he approached the
intersection. As counsel for the defendant you might want to begin your argument with the topic,
“What the bus driver did.” After you explain your affirmative theory and the evidence which supports
it, you would then, under this same topic, rebut the plaintiff’s theory as to the actions of the bus driver.
Then, you would end your argument with the topic, “What the plaintiff did.” Under this topic, you
would describe the unrebutted evidence about the plaintiff’s behavior. This organizational structure
enables you to begin strong and end strong, while at the same time rebutting plaintiff’s theory.
Consider motive. In most civil cases, motive is legally irrelevant, that is, it is not a legal element of
the plaintiffs case and it is not a legal element of an affirmative defense. When the judge instructs the
jury, he or she will not instruct them that they must find motive. But jury research tells us that the
jurors always ask the question: “Why? Why did the plaintiff behave in this way? Why did the
defendant behave in this way?” To persuade the jury, you must give them an answer to these
questions. In our hypothetical example, there is a reason why the plaintiff might not have noticed that
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the stoplight had turned red; he was distracted by the music playing on his IPod. As counsel for the
defendant you could prove your case without using this evidence. But, your case will be more
persuasive if you provide an answer to the question: “Why did it happen that way?” If the jurors
understand that there was a reason for the plaintiff to be distracted, they are more likely to believe that
he carelessly stepped into the intersection after the light turned red. In other words, if the jurors
understand that there is a reason for a party to act in a particular way, they are more likely to find that
the party did in fact act that way. If there is motive, the story becomes more logical and therefore
more persuasive.
Use Demonstrative Exhibits. During closing argument, you can use any demonstrative exhibit that
you have used earlier during the trial. However, do not feel that you have to use all of your
demonstrative exhibits during closing, or, indeed, any of them. By the time you reach closing
argument, you may have used a particular exhibit so many times that it no longer has any impact on
the jury. So, be selective. Use a demonstrative exhibit only if you think it will make a difference. In
addition to the demonstrative exhibit that you have used throughout the trial, you can create
demonstrative exhibits specifically for closing argument. And, unlike the demonstrative exhibits you
have used during witness examination, the demonstrative exhibit which you create for closing
argument can and should be argumentative. At this stage of the trial the only restriction on
demonstrative exhibits is that they must be based on the evidence. One of the best demonstratives for
closing argument is one that summarizes or lists the key pieces of evidence on a particular topic.
Another effective demonstrative exhibit for closing is one that lists the opposing parties arguments on
a particular point, along with your responses to each argument.
Arguing damages. Unless the trial has been bifurcated, the plaintiff’s lawyer should always argue
damages. But the defense lawyer has a choice. Some defense lawyers are loath to argue damages.
They fear that any discussion of damages implicitly carries with it an admission of liability. Most
defense lawyers, however, are not willing to put all of their eggs in the liability basket. They
recognize that in most cases there is at least some risk that the jury will return a verdict for the plaintiff
on liability and that, for this reason, it would be imprudent to ignore damages. To a certain extent, this
is a strategic question that you will need to resolve long before closing argument. During the
discovery phrase of the case you will have to decide whether to contest damages and, if so, whether to
offer an alternative damages calculation. If you have contested damages during trial by, for example,
calling your own damages expert, you will probably want to argue damages in closing. If you have
presented an alternative damages calculation, you will probably want to argue it in closing. If you do
choose to argue damages, this will present some challenges for you in organizing your argument.
Using logic as your guide, you would begin your argument by arguing the liability issues, and then
conclude by arguing damages. However, this approach causes two problems: not only are you ending
your argument on a defensive point, you are ending with an argument which assumes that the
defendant is liable. The solution for this problem varies, depending upon the facts of your case and
the points that you plan to argue. But, in ordering the topics in argument it is crucial that you find
some topic to end your argument other than damages.
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DELIVERING THE CLOSING ARGUMENT
Be yourself. You have your own style. Use it. Don’t copy someone else’s. You may admire an
accomplished trial lawyer who has an informal conversational style of argument. He weaves into his
argument humor and stories about life in his home state of Alabama. Unless you are from Alabama,
and unless you can use humor naturally and effectively, you should not emulate him. You will
undermine your credibility with the jury by coming across as phony and insincere. You are better off
choosing a style that comes naturally to you, even if that means that you give a formal and highly
logical argument, without any funny stories.
Do not read your closing argument. Do not prepare a script and read from it. If you read from a
script, your delivery will be boring and monotonous; it will lack energy and passion. Moreover, when
you are reading from a script you cannot make eye contact with the jurors. Unless you are looking at
the jurors you cannot read their reactions. Throughout closing you should be watching the jurors
carefully, noting how each one reacts, and making adjustments accordingly. If a juror seems puzzled
by a point, you should stop and explain further. If a juror seems bored, you may want to get his
attention by, for example, moving out from behind the lectern. If you are glued to a script, you cannot
make these necessary adjustments.
Give your closing argument from an outline. Although you should not write out your closing
argument word for word and read it, this does not mean that your closing argument should be
spontaneous. To the contrary, it should be carefully planned. The best way to take advantage of
careful planning, but leave room for some spontaneity, is to prepare an outline for your closing
argument. Your outline should list, in shorthand form, all of the points that you plan to make and the
order in which you plan to make them. There are two advantages to an outline.
First, an outline gives you a crutch. Some lawyers are able to give an entire closing argument without
using any notes. Most of us cannot do that comfortably. If you have a well organized outline, you can
use it when you need it. You may be able to argue for 5 or 10 minutes from memory, without looking
at your outline. Then, when you need to refresh your memory, you can refer to your outline. It is
easier to find your place in an outline than in a script. For closing argument I put my outline in a
small three-ring binder. I divide the outline into topics, and insert a tabbed divider in front of each
topic and write the topic, in shorthand form, on each divider. Usually, I know my closing argument
well enough that I can argue comfortably for 10 or 15 minutes without looking at the outline.
Typically, I will try to argue one entire topic before returning to the outline. When I finish one topic, I
pause and use the tabbed dividers to flip to the next topic. I begin arguing this next topic with my
outline in front of me. As I get comfortable with the new topic, I move way from the outline again,
returning to it later when I need it.
Second, an outline gives you flexibility. If, while watching the jurors, you feel that some jurors are
not yet fully persuaded about a particular point, you can embellish with additional detail. If, after
hearing the plaintiff’s argument, you need to add an argument, you can do it. In fact, when I prepare
my closing argument outline, I usually insert blank pages at critical points throughout the outline. If,
after hearing the plaintiff’s argument, I decide to add a point to my argument, I write the new point in
the appropriate blank space within my outline. Then, when I stand up to argue, not only do I have a
list of the additional points I want to make, I also have an outline which tells me when to make these
points.
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ABA Section of Litigation Annual Conference, April 20-23, 2005:
Lasting Impressions: The Role of Closing Arguments
Memorize your beginning and ending. The first few minutes and the last few minutes of your
closing argument are critical. In the first few minutes of the closing you must grab the jurors’
attention. In the last few minutes of the closing you must hold their attention while you build towards
a powerful conclusion. To grab and hold the jurors’ attention, you must maintain eye contact with
them. It goes without saying that you cannot make eye contact with the jurors if you are looking at
your outline. The beginning and ending of your argument are sufficiently important that you should
script them in advance. These moments are too important to trust your ability to be extemporaneous.
So, script the beginning and ending and memorize the script.
Move around. Done properly, movement can add interest and emphasis to your closing argument.
For example, when you walk over to a chart that is displayed on an easel, you are emphasizing to the
jurors that the chart is important. By walking towards the chart you also break up the monotony. By
moving away from the chart you can signal a transition to the jury. You can use this type of
movement to tell the jurors that you are starting a topic. Some judges require you to remain at the
lectern, but most do not. Even the most conservative judges will allow you to step from behind the
lectern and stand to one side of it. Even if this is the only movement that is permitted, you can use it
to emphasize a point.
Some lawyers use movement as a “marker.” Throughout the trial, whenever something important is
happening, they walk over to and stand in a particular spot. For example, whenever a witness says
something important, the lawyer may move out from behind the lectern and stand immediately to the
right of it. In this way, the lawyer conditions the jurors over time to pay attention whenever the
lawyer is standing in that spot. If you develop a marker like this during the trial, you can use it
effectively in closing argument to emphasize key points.
As with anything else, do not overdo it. Movement is effective, only if used selectively for emphasis.
If you are constantly in motion, you are not emphasizing anything and you appear frenetic to the jury.
Vary your voice. You can also add interest and emphasis to your closing argument by varying the
speed, volume tone, and inflection of your voice. Once again, the key is variety. A lawyer who
speaks in a slow monotone voice is boring. But so is a lawyer who speaks loudly at the same rapid
pace throughout his argument. In fact, one of the most effective, and underused, tools in closing
argument is silence. By pausing before you make a point you signal to the jury, “Listen carefully; this
is important.” By pausing after you make a point, you give the jury time to reflect on what has been
said.
Use gestures. Most of us have natural gestures. You should use the gestures that come naturally to
you. But, you want to avoid using the same gesture over and over again. A single repetitive gesture
can become annoying and distracting. The best way to avoid this problem is to watch yourself on
videotape. It will probably be a painful experience, but you will see exactly what gestures you use
and how frequently you use them.
Insert nonverbal cues into your outline. Most of us do not make good spontaneous use of
movement, pauses, and gestures. But like the content of your closing argument, the delivery can also
be planned in advance. When you prepare your outline, identify the points that you want to emphasize
and decide how you want to emphasize them. Then, write nonverbal cues, such as “pause here” or
“step away from the podium” into your outline. When you practice your closing, practice not only
10
ABA Section of Litigation Annual Conference, April 20-23, 2005:
Lasting Impressions: The Role of Closing Arguments
the words but also the movement, the changes in your voice, and your gestures too. This practice will
make your closing argument more effective and it will also help to teach you new and better habits.
Over time, you may find that the variation in movement, voice and gesture come more naturally to
you.
In closing argument, unlike at any other time during the trial, you have the opportunity to argue to the
jury. In other words, you have an opportunity to explain -- explain what is important and what is
unimportant; explain why the evidence supports your theory and does not support your opponent’s
theory; and explain why the evidence should lead to a verdict in your favor. During closing argument
you also have an opportunity, not just to present the evidence, but to package it. You should choose
the topics which emphasize the strengths of your case and deemphasize the weaknesses. You should
organize your topics and evidence in a way that is most persuasive. You should plan your argument
carefully. This means planning, not just the content, but also the delivery. When you deliver the
argument you should connect with the jurors. You should grab their attention at the beginning and
hold it throughout the argument. Done properly, the argument should give the jurors all the tools that
they need to decide the case in your favor.
ABOUT THE PRESENTERS
Mark A. Drummond
Mark A. Drummond is a Judge for the Eighth Judicial Circuit of Illinois. He is co-chair of Trial
Practice for the Section of Litigation and is an Associate Editor for Litigation News. He is the author
of the “Young Lawyer’s Corner” for Litigation News. He was a trial lawyer for 20 years before taking
the bench in 1999. He has been an instructor with the National Institute for Trial Advocacy (NITA)
since 1986 and is a program director at large for NITA. He has taught trial advocacy skills in over 100
programs for both large and small firms, corporations, the Office of the Attorney General for Illinois
and New York, and the Department of the Navy. He is the author of “The Eight Keys to the Art of
Persuasion.” His pro bono trial advocacy work includes the ABA legal services training in Austin,
Texas and Chicago, training lay advocates for the Navaho Nation, and training the Bosnian and
Rwandan war crimes tribunal prosecutors at the Hague; Arusha, Tanzania and at the University of
Oxford, England.
Linda L. Listrom
Ms. Listrom is a senior partner in the Chicago office of Jenner & Block. She specializes in complex
business litigation and frequently litigates significant cases involving allegations of breach of contract
and fraud cases. She has tried dozens of cases for clients in federal and state courts around the
country and frequently serves as lead trial counsel for one of the firm’s largest clients. Ms. Listrom is
a Fellow in the American College of Trial Lawyers and co-chair of the Trial Practice Committee for
the Section of Litigation of the American Bar Association. Ms. Listrom received her B.A. from the
University of Houston in 1974 and her J.D. from Harvard Law School in 1977.
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ABA Section of Litigation Annual Conference, April 20-23, 2005:
Lasting Impressions: The Role of Closing Arguments
Knox D. Nunnally
Mr. Nunnally is a senior partner in the Houston office of Vinson & Elkins. He has significant
experience in catastrophic tort cases, mass torts, class actions, products liability and business disputes
and has tried more than 100 cases to verdict. Mr. Nunnally is a Fellow in the American College of
Trial Lawyers and has been certified by the Texas Board of Legal Specialization in Personal Injury
Law and in Civil Trial Law. In 2000 Mr. Nunnally was named by the Texas Lawyer as one of the 100
“Legal Legends” who helped shape law and lawyering in Texas in the 20th century. In 2003 Mr.
Nunnally received the prestigious Ronald D. Secrest Outstanding Trial Lawyer Award from the Texas
Bar Foundation. He is also listed in The Best Lawyers in America in personal injury litigation, 20032004. Mr. Nunnally received his B.B.A. from the University of Texas in 1965 and received his LL.B
degree from the University of Texas in 1968.
Tab Turner
Mr. Turner is a partner with Turner & Associates, P.A. in North Little Rock, Arkansas. Mr. Turner
specializes in representing clients in automotive products liability cases nationwide. He has won
verdicts in excess of $20 million in three different cases. Mr. Turner has been named to Arkansas
Business Magazine’s “40 Under 40”, a list comprising the 40 most prominent Arkansans under the age
of 40. He received his undergraduate and J.D. degrees from the University of Arkansas.
12
Trial Tactics
Proper and Improper
Closing Argument
BY STEPHEN A. SALTZBURG
E
very experienced trial lawyer knows that
in closing argument counsel are permitted to argue about the evidence presented
and to urge jurors to accept or reject the evidence
and the inferences that might be drawn from it
for whatever reasons counsel put forward. It is
not unusual for counsel to suggest analogies that
might appeal to jurors or to quote from a source
that jurors might find persuasive. There are limits, however, to what may be legitimately done in
closing argument. United States v. Wright, 625
F.3d 583 (9th Cir. 2010), illustrates this well.
The Facts
Jason Wright was convicted of transportation and
possession of child pornography. The case arose
when FBI Special Agent Robin Andrews conducted an undercover search on a file-sharing program
known as an mIRC (Internet Relay Chat). Andrews
came upon the user name “azgymguy2” in two chat
rooms, “100% teensexpics” and “gayteenpics.” Andrews typed in a “trigger” that established a connection with azgymguy2’s file-trader and downloaded
13 files, three of which were child pornography.
Later, Andrews repeated the connection and downloaded 59 files, 21 of which were child pornography.
She conducted three more undercover sessions before she matched Wright’s home address with his Internet connection. The FBI executed a search warrant at Wright’s home and seized Wright’s desktop
computer and a laptop.
About a week after the search, Wright’s roommate Shawn Dittfurth disappeared. At trial
STEPHEN A. SALTZBURG, a past chair
of the Criminal Justice Section, is the
Wallace and Beverley Woodbury University
Professor at George Washington University
School of Law in Washington, D.C., and
contributing editor to Criminal Justice
magazine. He is also author of the book,
Trial Tactics, Second Edition (2009,
American Bar Association), an updated and
expanded compilation of his columns.
Wright claimed that it was Dittfurth who was responsible for possession of the child pornography
found on Wright’s desktop computer. The jury
rejected the defense and found Wright guilty.
On appeal, Wright argued that the prosecutor’s
closing argument amounted to misconduct. The
court of appeals accepted the argument in part
and rejected it in a number of respects.
The Improper Closing Argument
Wright asserted on appeal that the prosecutor
engaged in misconduct during closing argument
by improperly asserting his personal disbelief of
the defense and submitting his own testimony to
the jury. The court of appeals found the following
“trifecta” argument to be “the most troubling”:
Now, I’ve been handling these cases for a
number of years and I’ve seen where defense—where the defense of it was my roommate has been advanced, and I’ve seen the defense advanced that it was some sort of hacker
or trojan or virus, something along those lines,
and then I’ve also seen, well, somebody did
something inappropriately, the interview, this,
that, something along those lines.
But never have I seen the trifecta, all three
in this same place. This is very—this is unbelievably remarkable that you guys got
to witness this. So we’re betting on Shawn
Dittfurth to win, the FBI to place, and I
guess some computer hacker, trojan, virus
mystery man to show, but the problem is
none of those things ever showed.
(Id. at 610.)
The court added that the prosecutor made several other references to his own impressions of
the evidence. For example, the prosecutor made
the following argument:
Of course [Wright’s] denying that he said he
knew he should not have child pornography
on his computer. I’m not sure why he’s denying that because if somebody asked me should
you have child pornography on your server,
on your computer, I would say of course not,
but here he is saying no, no, no, we weren’t—
there was no child pornography and I never
said anything about how I knew I shouldn’t
have child pornography on this computer.
(Id. at 610-611.)
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The court focused mostly on the trifecta argument and concluded that “[w]hile it is probably not
correct to label this misconduct as vouching, . . .
the prosecutor’s comment only gave the jury his impression of the evidence in the case, but it improperly introduced evidence outside the record—i.e.,
the prosecutor’s experience with similar cases—as
a means of commenting on the defense’s case and
Wright’s credibility.” (Id. at 611.) Thus, the court
rejected the argument that the prosecutor engaged
in improper vouching, but it concluded that the argument was “certainly improper” because it denigrated the defense as a sham. (Id.)
The court cited United States v. Sanchez, 176
F.3d 1214 (9th Cir. 1999), and United States v. Hermanek, 289 F.3d 1076 (9th Cir. 2002), in concluding
that “the prosecutor’s ‘trifecta’ comment was improper” and “the prosecutor’s repeated references
to how he viewed the evidence were also improper.”
(625 F.3d at 612.) Quoting from Hermanek, 289
F.3d at 1100, the court wrote as follows: [P]rosecutors’ arguments not only must be based on facts in
evidence, but should be phrased in such a manner
that it is clear to the jury that the prosecutor is summarizing evidence rather than inserting personal
knowledge and opinion into the case. (Id.)
Improper Vouching
The court explained the difference between improper vouching and the conduct of the prosecutor in Wright’s case. Improper vouching occurs
when a lawyer places the prestige of the government behind a witness by providing personal assurances of the witness’s credibility or when a
lawyer suggests that the testimony of a witness is
supported by information outside that presented
to the jury. Wright’s complaint was not really improper vouching; it was that the prosecutor denigrated the defense and the defendant rather than
vouched for government witnesses.
Proper Argument as to Credibility
Wright attempted to persuade the court that
the prosecutor improperly pitted Wright’s credibility against the government’s witnesses, as the
court had found in United States v. Combs, 379
F.3d 564, 567–68 (9th Cir. 2004) (holding that it
was improper to ask the defendant point blank
whether the testifying agent lied and for the prosecutor to make a closing argument in which he
several times referred to the defendant calling the
agent a liar, and impermissibly referring to the
fact that if the agent lied he would have committed perjury and would have been “flush[ing] his
ten-year career down the toilet.”)
The court rejected the argument and found that
Combs was distinguishable. The prosecutor merely
contrasted Wright’s testimony with that of Agent
Andrews and a detective. He did not inject his personal opinions as to credibility, which the court
had found to be improper in United States v. Garcia-Guizar, 160 F.3d 511 (9th Cir. 1998). The court
cited United States v. Molina, 934 F.2d 1440, 1445
(9th Cir. 1991), for the proposition that “[i]n a case
that essentially reduces to which of two conflicting
stories is true, it may be reasonable to infer, and
hence to argue, that one of the two sides is lying.”
Striking “Hard Blows”
Wright complained that the prosecutor improperly insulted him several times during cross-examination and
in closing argument. The court rejected the argument
and offered five examples of prosecutorial comments
that struck “hard blows” but were not improper:
(1) [R]eferring to Wright’s statement that he
used pornography to avoid being promiscuous, the prosecutor stated “Like are those
the only two options? I mean couldn’t you
be in a committed relationship?”
(2) [T]he prosecutor asked Wright during
cross-examination, “You’re proud of your
collection of child pornography, aren’t you?”
(Wright responded: “No, it actually disgusts
me that people would trade such things.”)
(3) [T]he prosecutor referred to T-shirt slogans Wright came up with for his business
Offensive Ts.com.
(4) [T]he prosecutor told the jury that
Wright’s practice of burning blockbuster
movies was illegal.
(5) [T]he prosecutor responded to the defense’s theory that law enforcement was “out
to get him” by telling the jury that Wright
was not Pablo Escobar or “the Larry Flynt
of child pornography.”
(625 F.3d at 613.)
The court firmly stated that “[n]ot one of these
statements was improper.” (Id.) The prosecutor’s com-
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ments were based on the evidence and he was entitled
to draw all reasonable inferences from the evidence.
Harmless Error
The court found that the statements by the prosecutor that amounted to improper comments,
standing alone, were harmless error. The court
concluded that, although “[t]he ‘trifecta’ comment
was by far the most egregious statement made by
the prosecutor, “[t]he improper statements were
relatively isolated incidents over the course of a
ten day trial.” (Id.) The court added that the effect
of the trifecta argument was mitigated by an excellent rebuttal by defense counsel that focused on
the three defenses raised by Wright; noted that the
jury acquitted Wright on eight counts, which indicated that it did not discredit Wright’s testimony;
and concluded that “the prosecutor’s misconduct
was fairly mild and was mitigated by the court’s
general jury instructions, given at the beginning of
the trial, as well as at the end of the prosecutor’s
closing argument and during the final jury instructions that ‘[a]rguments and statements by lawyers
are not evidence.’” (Id. (quoting United States v.
Necoechea, 986 F.2d 1273, 1280 (9th Cir. 1993)).
The court observed, however, that it also found
error in the exclusion of 404(b) evidence; it was
remanding the case for fact-finding on Wright’s
motion to exclude statements made to Agent Andrews and a detective; and therefore, it would not
address in the initial appeal Wright’s argument
that cumulative error required reversal.
Lessons
1. It is permissible for prosecutors to contrast a
defendant’s testimony with that of government
witnesses. If it is clear that the testimony of the
defendant and that of the government witnesses cannot both be true, it is permissible for the
prosecutor to argue that the jury should accept
the testimony of the government witnesses and
reject the testimony of the defendant.
2. It is permissible for prosecutors to point out problems with one or more theories of defense raised
by a defendant, but in doing so prosecutors cannot refer to their own experience or their own
opinions because that makes them witnesses.
3. It is permissible for prosecutor to strike
“hard blows” in cross-examination and to
draw permissible inferences from the evidence
presented in closing argument, even if those
inferences also strike hard at a defense. n
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Closing argument of Johnnie Cochran in the O. J. Simpson case
Page 1 of 8
CLOSING ARGUMENT OF JOHNNIE COCHRAN
(EXCERPTS)
.
JOHNNIE COCHRAN’S CLOSING ARGUMENT
******
MR. COCHRAN: The Defendant, Mr. Orenthal James Simpson, is now afforded an opportunity to
argue the case, if you will, but I'm not going to argue with you, ladies and gentlemen. What I'm going
to do is to try and discuss the reasonable inferences which I feel can be drawn from this evidence.
******
Ultimately, it's what you determine to be the facts is what's going to be important, and all of us can
live with that. You are empowered to do justice. You are empowered to ensure that this great system
of ours works. Listen for a moment, will you, please. One of my favorite people in history is the great
Frederick Douglas. He said shortly after the slaves were freed, quote, "In a composite nation like ours
as before the law, there should be no rich, no poor, no high, no low, no white, no black, but common
country, common citizenship, equal rights and a common destiny." This marvelous statement was
made more than 100 years ago. It's an ideal worth striving for and one that we still strive for. We
haven't reached this goal yet, but certainly in this great country of ours, we're trying. With a jury such
as this, we hope we can do that in this particular case.
******
I'd like to comment and to compliment Miss Clark and Mr. Darden on what I thought were fine
arguments yesterday. I don't agree with much of what they said, but I listened intently, as I hope you'll
do with me. And together, hopefully these discussions are going to be helpful to you in trying to
arrive at a decision in this case where you don't compromise, where you don't do violence to your
conscious (sic), but you do the right thing. And you are the ones who are empowered to determine
what is the right thing. Let me ask each of you a question. Have you ever in your life been falsely
accused of something? Have you ever been falsely accused? Ever had to sit there and take it and
watch the proceedings and wait and wait and wait, all the while knowing that you didn't do it? All you
could do during such a process is to really maintain your dignity; isn't that correct? Knowing that you
were innocent, but maintaining your dignity and remembering always that all you're left with after a
crisis is your conduct during. So that's another reason why we are proud to represent this man who's
maintained his innocence and who has conducted himself with dignity throughout these proceedings.
Now, last night, as I thought about the arguments of my colleagues, two words came to mind. And I
want to--I asked my wife this morning to get the dictionary out and look up two words. The two
words were "Speculative" and "Cynical." Let me see if I can get those words that she got for me.
******
And I want you to tell me what does it mean to speculate, what does it mean to be cynical, as I
thought about my colleagues' arguments and their approach to this case and their view of this case.
"Cynical" is described as contemptuously distrustful of human nature and motives, gloomy distrustful
view of life. And to speculate--to speculate, to engage in conjecture and to surmise or--is to take to be
the truth on the basis of insufficient evidence. I mention those two definitions to you because I felt
that much of what we heard yesterday and again this morning was mere speculation.
******
People see things that are totally cynical. Maybe that's their view of the world. Not everybody shares
that view. Now, in this case--and this is a homicide case and a very, very, very serious case. And of
course, it's important for us to understand that. It is a sad fact that in American society, a large number
of people are murdered each year. Violence unfortunately has become a way of life in America. And
so when this sort of tragedy does in fact happen, it becomes the business of the police to step up and
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step in and to take charge of the matter. A good efficient, competent, noncorrupt police department
will carefully set about the business of investigating homicides. They won't rush to judgment. They
won't be bound by an obsession to win at all costs. They will set about trying to apprehend the killer
or killers and trying to protect the innocent from suspicion.
In this case, the victims' families had an absolute right to demand exactly just that in this case. But it
was clear unfortunately that in this case, there was another agenda. From the very first orders issued
by the LAPD so-called brass, they were more concerned with their own images, the publicity that
might be generated from this case than they were in doing professional police work. That's why this
case has become such a hallmark and that's why Mr. Simpson is the one on trial. But your verdict in
this case will go far beyond the walls of Department 103 because your verdict talks about justice in
America and it talks about the police and whether they're above the law and it looks at the police
perhaps as though they haven't been looked at very recently. Remember, I told you this is not for the
naive, the faint of heart or the timid. So it seems to us that the evidence shows that professional police
work took a backseat right at the beginning. Untrained officers trampled--remember, I used the word
in opening statement--they traipsed through the evidence.
******
Because of their bungling, they ignored the obvious clues. They didn't pick up paper at the scene with
prints on it. Because of their vanity, they very soon pretended to solve this crime and we think
implicated an innocent man, and they never, they never ever looked for anyone else. We think if they
had done their job as we have done, Mr. Simpson would have been eliminated early on.
******
Now, at the outset, let's talk about this time line for the Defense. I said earlier that Mr. Darden did a
good job in his argument, but one thing he tended to trip over and stumble over was when he started
to talk about our case. He doesn't know our case like we know our case. It was interesting, wasn't it,
because first he stood up and started talking about the time line being at 10:15. Then he said, well,
they didn't prove anything, but, "Golly, well, it may have been as late as 10:30." That's interesting,
isn't it? Never heard that before.
******
And so as we look then at the time line and the importance of this time line, I want you to remember
these words. Like the defining moment in this trial, the day Mr. Darden asked Mr. Simpson to try on
those gloves and the gloves didn't fit, remember these words; if it doesn't fit, you must acquit. And we
are going to be talking about that throughout. So to summarize, if you take the witnesses that we
presented who stand unimpeached, unimpeached, and if you are left with dogs starting to bark at
10:35 or 10:40, 10:40 let's say--and we know from the most qualified individuals, Henry Lee and
Michael Baden, this was a struggle that took from five to 15 minutes. It's already 10:55. And
remember, the thumps were at 10:40 or 10:45--O.J. Simpson could not be guilty. He is then entitled to
an acquittal
******
And when you are back there deliberating on this case, you're never going to be ever able to reconcile
this time line and the fact there's no blood back there and O.J. Simpson would run into an air
conditioner on his own property and then under her scenario, he still has the knife and the clothes. But
what does she tell you yesterday? Well, he still has the knife and he's in these bloody clothes and
presumably in bloody shoes, and what does he do? He goes in the house. Now, thank heaven, Judge
Ito took us on a jury view. You've seen this house. You've seen this carpet. If he went in that house
with bloody shoes, with bloody clothes, with his bloody hands as they say, where's the blood on the
doorknob, where's the blood on the light switch, where's the blood on the banister, where's the blood
on the carpet? That's like almost white carpet going up those stairs. Where is all that blood trail
they've been banting about in this mountain of evidence? You will see it's little more than a river or a
stream. They don't have any mountain or ocean of evidence. It's not so because they say so. That's just
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rhetoric. We this afternoon are talking about the facts. And so it doesn't make any sense. It just doesn't
fit. If it doesn't fit, you must acquit.
*******
And so she (Ms. Clark) talks about O.J. being very, very recognizable. She talks about O.J. Simpson
getting dressed up to go commit these murders. Just before we break for our break, I was thinking--I
was thinking last night about this case and their theory and how it didn't make any sense and how it
didn't fit and how something is wrong. It occurred to me how they were going to come here, stand up
here and tell you how O.J. Simpson was going to disguise himself. He was going to put on a knit cap
and some dark clothes, and he was going to get in his white Bronco, this recognizable person, and go
over and kill his wife. That's what they want you to believe. That's how silly their argument is. And I
said to myself, maybe I can demonstrate this graphically. Let me show you something. This is a knit
cap. Let me put this knit cap on (Indicating). You have seen me for a year. If I put this knit cap on,
who am I? I'm still Johnnie Cochran with a knit cap. And if you looked at O.J. Simpson over there-and he has a rather large head--O.J. Simpson in a knit cap from two blocks away is still O.J. Simpson.
It's no disguise. It's no disguise. It makes no sense. It doesn't fit. If it doesn't fit, you must acquit.
******
Consider everything that Mr. Simpson would have had to have done in a very short time under their
timeline. He would have had to drive over to Bundy, as they described in this little limited time frame
where there is not enough time, kill two athletic people in a struggle that takes five to fifteen minutes,
walk slowly from the scene, return to the scene, supposedly looking for a missing hat and glove and
poking around, go back to this alley a second time, drive more than five minutes to Rockingham
where nobody hears him or sees him, either stop along the way to hide these bloody clothes and
knives, et cetera, or take them in the house with you where they are still hoisted by their own petard
because there is no blood, there is no trace, there is no nothing. So that is why the Prosecution has had
to try and push back their timeline. Even to today they are still pushing it back because it doesn't make
any sense. It doesn't fit.
******
As I started to say before, perhaps the single most defining moment in this trial is the day they
thought they would conduct this experiment on these gloves. They had this big build-up with Mr.
Rubin who had been out of the business for five, six, seven, eight years, he had been in marketing
even when he was there, but they were going to try to demonstrate to you that these were the killer's
gloves and these gloves would fit Mr. Simpson. You don't need any photographs to understand this. I
suppose that vision is indelibly imprinted in each and every one of your minds of how Mr. Simpson
walked over here and stood before you and you saw four simple words, "The gloves didn't fit." And
all their strategy started changing after that. Rubin was called back here more than all their witnesses,
four times altogether. Rubin testified more than the investigating officers in this case, because their
case from that day forward was slipping away from them and they knew it and they could never ever
recapture it. We may all live to be a hundred years old, and I hope we do, but you will always
remember those gloves, when Darden asked him to try them on, didn't fit.
******
Consider the EAP b found under Nicole Brown Simpson's fingernails where they try to come in and
tell you it is a degraded BA and a cross-examination. Again Blasier got Matheson to admit there was
no specific support in any of the literature for a BA degraded into a B, and this was by all accounts a
double-banded B. The reason they didn't want to pursue that, because she may have scratched
somebody with a b type, but they never pursued those things. The second hat at Bundy. The Bundy
location inside, when the Defense investigator finds this hat, nobody wanted to collect it. They
refused in fact to collect it. When we in this trial, before you, discovered that evidence had been
moved at Bundy and that a key piece of evidence, the piece of paper, had disappeared, they didn't do
anything to find out about it that we know of. I am concerned about those kind of things.
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******
So we heard last night and we are treated to this morning some very, very interesting observations by
my learned colleague, Mr. Darden.
******
Now, this is interesting because Mr. Darden started off by saying, well, you know, we are going to put
together this other piece, it is not really one of the elements of the crime of murder, motive, but we are
going to talk to you about motive now. We are going to tell you and convince you about the motive in
this case, and then he spent a long time trying to do that. As I say, he did a fine job and addressed the
facts and conjured up a lot of emotion. You notice how at the end he kind of petered out of steam
there, and I'm sure he got tired and he petered out because this fuse he kept talking about kept going
out. It never blew up, never exploded. There was no triggering mechanism. There is nothing to lead to
that. It was a nice analogy, almost like that baby analogy, the baby justice and the house of fire. You
don't have to go through the house of fire. You have to keep yourself on the prize, the house of
justice, a city called Justice, and that is what this is leading to, so this is what it is all about. The court-Mr. Darden looks up there, says, well, gee, judge, whatever limited purpose, but let's talk about the
limited purpose for which all of his argument was about. When you talk about this evidence of other
crimes, such evidence was received--excuse me, sir--and may be considered by you only for the
limited purpose of determining if it tends to show the characteristic method or plan or scheme about
identity or motive. For the limited purpose for which you may consider such evidence, you must
weigh it in the same manner as you do all other evidence in the case. You are not permitted to
consider such evidence for any other purpose. So this isn't about character assassination of O.J.
Simpson, as you might think at first blush. This is about Mr. Darden trying to conjure up a motive for
you. And at the outset let me say that no, none, not one little bit of domestic violence is tolerable
between a man and a woman. O.J. Simpson is not proud of that 1989 incident. He is not proud of it.
But you know what? He paid his debt to that and it went to court. He went through that program. And
the one good thing, and no matter how long Darden talked, from 1989 to now there was never any
physical violence between O.J. Simpson and Nicole Brown Simpson
******
It is wonderful that we live in the age of videotape because it tells you about who O.J. Simpson.
Cindy Garvey tells you how O.J. Simpson was. He was this mean dark brooding person at this
concert, that he was going to kill his ex-wife because he didn't like his seats. Because he didn't like his
seats or because he didn't invite her to dinner. That is how silly what they are talking about in this
case as he tries to play out this drama. But let me show you, rather than talk--a picture is worth a
thousand words, so let me show you this video. You watch this video for a moment and we will talk
about it. This is for Chris Darden.
(At 4:19 P.M. a videotape was played.)
You will recognize some of the people in this videotape after awhile. Mr. Simpson kissing Denise
Brown, Miss Juditha Brown, Mr. Louis Brown. Talking to a friend. That is his son Justin who he
kisses, smiling and happily waving. Mr. Brown is happy. Laughing and falling down and laughing
again, bending over laughing. You see that. You see that with your own eyes. You will have that back
in this jury room. How does that comport with this tortured, twisted reasoning that he was angry in
some kind of a jealous rage? Did he look like he was a jealous rage to you? Your eyes aren't lying to
you when you see that. Thank heaven we have videotape. I didn't tell you about that in opening
statement. Do you think that is pretty compelling? Thank heaven we have that. And we know in this
city how important videotapes can be when people don't want to believe things even when they see on
it videotapes and you saw that yourself.
******
And even after that video, like any proud papa, you know what O.J. Simpson did? Took a picture, a
photograph with his daughter. Let's look at this photograph for a minute, if you want to see how he
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looks while he is in this murderous rage, while this fuse is going on that Darden talks about. Where is
the fuse now, Mr. Darden? Where is the fuse? Look at that look on his face liked (sic) any proud
papa. He is proud of that little girl and who wouldn't be proud of her
******
Then we know that at nine o'clock he talked to Christian Reichardt, his friend Dr. Christian Reichardt,
and you saw Chris Reichardt come in here and talk to you. I thought he made a very, very, very good
witness from the standpoint of what he had to say. He told you that O.J. Simpson sounded even
happier than usual. He was more jovial, he got his life back together and he was moving on. Isn't that
interesting? Isn't that an interesting way of looking at circumstantial evidence. Let me show you how
we differ in this case. A doctor witness comes in and says O.J. Simpson is jovial at nine o'clock on
June 12th. Pretty good evidence, wouldn't you say? I think you would love to have that. Anybody
would in a case where you are supposedly in a murderous rage. Instead of Chris Darden standing here
and saying, well, that is pretty tough evidence for us to overcome, he says O.J. Simpson was happy
because he was going to kill his wife. Now, if you believe that, I suppose I might as well sit down
now and I am probably wasting my time. I don't think any of you believe that. That is preposterous. It
flies in the face of everything that is reasonable. You have these two reasonable hypotheses, his isn't
reasonable, but assume it is reasonable, you would have to adopt this, that he is jovial, he is happy.
They make a date for that next Wednesday and O.J. Simpson returns from back east. You remember
that. That is the testimony. Mr. Darden tries to make a big thing of the fact, well, gee, you know,
golly, was he depressed about the fact that they had broken up or they had finally broke up? He said,
yeah, he had been down. He never said he was depressed. Said he was down or upset and who
wouldn't be. Remember the last questions I asked. If you had just ended a 17-year relationship and it
was over, you would feel down for a short period of time until you got your life on track. You
wouldn't go kill your ex-wife, the mother of your children. O.J. Simpson didn't try to kill or didn't kill
Nicole Brown Simpson when they got a divorce, when they went through whatever they went through
when Faye Resnick moved in.
******
In this case in opening statement I showed you Bob Shapiro's foresight and wisdom. He had these
photographs taken I think on June 15th. Instead of praising this lawyer who was interested in the
truth, the Prosecution says, well, they went to Dr. Huisenga. That wasn't really his doctor. Isn't that
preposterous. Dr. Huisenga, by all accounts, is a qualified doctor. He was the raiders team doctor. I
suppose he is supposes qualified. This is Mr. O.J. Simpson's body as it appeared on June 15th.
Wouldn't you expect to see a lot of bruises and marks on that body? You see his back. Some of these
aren't very flattering, but this is not about flattery; this is about his life. Now, on his hands--there is
some slight abrasions on his hands, but nothing consistent with a fight like this. You know it. I know
it. We all know it. We will talk more about this, this so-called fishhook cut and where he got that. It
will become very clear when we talk about demeanor where that came from. Miss Clark wants to try
and confuse that, but that is very, very clear. So with regard to Mr. Simpson's physical condition, I
don't want to just tell you to take my word, stand here and say, oh, yeah, he was in great shape on that
day or he looked good or whatever. Fortunately we had photographs again, we had graphic evidence
of this man's body. This man had not been in a life and death struggle for five to fifteen minutes.
******
And just before we take the dinner break, let's talk briefly about these witnesses from the family and
what they had to say. The first. We first called Arnelle Simpson, and you saw Arnelle on the stand.
Arnelle Simpson, the Defendant's daughter, born the day he won the Heisman trophy
******
And she told you how her father reacted when he got the news that his ex-wife had been killed. She
told you. She had never before heard her father sound like that, how upset he was, how he lost control
of himself, how distraught he was. You heard and you saw her on that stand. That is why we called
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her, so you would have better understanding, because we knew, I knew there would come a day that
Marcia Clark would stand here and say, well, you know, he wouldn't react like he does when
somebody gets this information, just like he did yesterday, because what Miss Clark forgot was I
examined Detective Phillips. And you look back through your notes. The first thing that O.J. Simpson
said to Detective Phillips was, "What do you mean she has been killed?" And then he kept repeating
himself and repeating himself, and Phillips, to his credit, said he became very, very upset, kept
repeating himself, and Phillips gave the phone to Arnelle Simpson.
So they can make--she can again theorize, fantasize all she wants. Well, he didn't ask, well, it was a
car accident? Have you ever had some bad news given to you? There is no book that you go to. The
only book you should go to is the bible or your God, whomever you believe in to help get you through
it. There is nothing that says how you would handle yourself in those times. These Prosecutors don't
understand that. They would stand here and tell you that that is preposterous. This man was upset.
And you are going to see at everything he did from that moment that he found out that his ex-wife had
been killed was consistent only with innocence absolutely that day. And so Arnelle Simpson helps us
in that regard.
******
Now, when you want to think about the depths to which people will go to try to win, when you want
to talk about an obsession to win, I'm going to give you an example. There was a witness in this case
named Thano Peratis. This is a man who's their man who took O.J. Simpson's blood. This is a man
who had a subpoena, at one point said he could have come down here and testify. They didn't call
him. By the time we wanted to call him, he's unavailable because of his heart problem, remember? So
what we did is, we read you his grand jury testimony I believe and we played for you his preliminary
hearing testimony. And in that testimony, it's very, very consistent. He's been a nurse for a number of
years. You saw him. He works for the city of Los Angeles. He says that when he took this blood from
O.J. Simpson on June 13th, he took between 7.9 and 8.1 cc's of blood. That's what he said. That's real
simple, isn't it? We knew that. He's sworn to tell the truth under oath both places, the grand jury and
preliminary hearing. Pretty clear, isn't it? Pretty clear. You remember in my opening statement, I told
you, you know, something's wrong here, something's sinister here, something's wrong, because if we
take all their figures and assume they took 8 cc's of blood, there's 6.5 cc's accounted for, there is 1.5
cc's missing of this blood. There's some missing blood in this case. Where is it?
******
It took all four detectives, all four LAPD experienced detectives to leave the bodies. They had to
notify the Coroner. They didn't have a criminalist to go over to notify O.J. Simpson. Who's fooling
who here? This is preposterous. They're lying, trying to get over that wall to get in that house. You
don't believe so? You're talking about saving lives. Remember what Arnelle said. First of all, they all
make this big mistake. They forget and they say, "Well, when we leave from the back, we go right in
that back door of the house there, go right in the back door." But they forgot. Arnelle Simpson comes
in here and testifies you can't go in the back door because remember, Kato had put on the alarm. You
had to go around the house to the front. Arnelle had to open the keypad to let them in, remember?
You think who knows better? You'd think she knows better or they know better? She had to let them
in. So they're worried about dead bodies and people being in that house and saving lives? Who goes in
first? Arnelle Simpson goes in first. These big, brave police officers, and the young lady just walks in
there first. They don't go upstairs looking. They just want to be inside that house and make her leave
to give Fuhrman a chance to start what he's doing, strolling around the premises and doing what he's
doing there.
******
Then we come, before we end the day, to Detective Mark Fuhrman. This man is an unspeakable
disgrace. He's been unmasked for the whole world for what he is, and that's hopefully positive.
******
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And they put him on the stand and you saw it. You saw it. It was sickening. And then my colleague,
Lee Bailey, who can't be with us today, but God bless him, wherever he is, did his cross-examination
of this individual and he asked some interesting questions. Some of you probably wondered, "I
wonder why he's asking that." He asked this man whether or not he ever met Kathleen Bell. Of
course, he lied about that.
******
Then Bailey says: "Have you used that word, referring to the `n' word, in the past 10 years? "Not that
I recall, no. "You mean, if you call someone a Nigger, you had forgotten it?
"I'm not sure I can answer the question the way it's phrased, sir." And they go on. He says, "Well--"
And then pins him down. "I want you to assume that perhaps at some time since 1985 or `86, you
addressed a member of the African American race as a Nigger. Is it possible that you have forgotten
that act on your part? "Answer: No, it is not possible. "Are you, therefore, saying that you have not
used that word in the past 10 years, Detective Fuhrman?
"Answer: Yes. That is what I'm saying. "Question: And you say under oath that you have not
addressed any black person as a Nigger or spoken about black people as niggers in the past 10 years,
Detective Fuhrman? "That's what I'm saying, sir. "So that anyone who comes to this court and quotes
you as using that word in dealing with African Americans would be a liar; would they not, Detective
Fuhrman? "Yes, they would”.
******
Let's remember this man. This is the man who was off this case shortly after 2:00 o'clock in the
morning right after he got on it. This is the man who didn't want to be off this case. This is the man,
when they're ringing the doorbell at Ashford, who goes for a walk. And he describes how he's
strolling. Let me quote him for you. Here's what he says:
"I was just strolling along looking at the house. Maybe I could see some movement inside. I was just
walking while the other three detectives were down there." And that's when he walks down and he's
the one who says the Bronco was parked askew and he sees some spot on the door. He makes all of
the discoveries. He's got to be the big man because he's had it in for O.J. because of his views since
`85. This is the man, he's the guy who climbs over the fence. He's the guy who goes in and talks to
Kato Kaelin while the other detectives are talking to the family. He's the guy who's shining a light in
Kato Kaelin's eyes. He's the guy looking at shoes and looking for suspects. He's the guy who's doing
these things. He's the guy who says, "I don't tell anybody about the thumps on the wall." He's the guy
who's off this case who's supposedly there to help this man, our client, O.J. Simpson, who then goes
out all by himself, all by himself.
Now, he's worried about bodies or suspects or whatever. He doesn't even take out his gun. He goes
around the side of the house, and lo and behold, he claims he finds this glove and he says the glove is
still moist and sticky. Now, under their theory, at 10:40, 10:45, that glove is dropped. How many
hours is that? It's now after 6:00 o'clock. So what is that? Seven and a half hours. The testimony about
drying time around here, no dew point that night. Why would it be moist and sticky unless he brought
it over there and planted it there to try to make this case? And there is a Caucasian hair on that glove.
This man cannot be trusted. He is sinful to the Prosecution, and for them to say he's not important is
untrue and you will not fall for it, because as guardians of justice here, we can't let it happen.
******
Why did they then all try to cover for this man Fuhrman? Why would this man who is not only Los
Angeles' worst nightmare, but America's worse nightmare, why would they all turn their heads and try
to cover for them? Why would you do that if you are sworn to uphold the law? There is something
about corruption. There is something about a rotten apple that will ultimately infect the entire barrel,
because if the others don't have the courage that we have asked you to have in this case, people sit
sadly by. We live in a society where many people are apathetic, they don't want to get involved, and
that is why all of us, to a person, in this courtroom, have thanked you from the bottom of our hearts.
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Because you know what? You haven't been apathetic. You are the ones who made a commitment, a
commitment toward justice, and it is a painful commitment, but you've got to see it through. Your
commitment, your courage, is much greater than these police officers. This man could have been off
the force long ago if they had done their job, but they didn't do their job. People looked the other way.
People didn't have the courage. One of the things that has made this country so great is people's
willingness to stand up and say that is wrong. I'm not going to be part of it. I'm not going to be part of
the cover-up. That is what I'm asking you to do. Stop this cover-up. Stop this cover-up. If you don't
stop it, then who? Do you think the police department is going to stop it? Do you think the D.A.'s
office is going to stop it? Do you think we can stop it by ourselves? It has to be stopped by you.
******
But the capper was finding those tapes, something that you could hear. Lest there be any doubt in
anybody's mind, Laura McKinny came in here, and I can imagine the frustration of the Prosecutors,
they've had the glove demonstration, they have seen all these other things go wrong and now they got
to face these tapes.
******
We owe a debt of gratitude to this lady that ultimately and finally she came forward. And she tells us
that this man over the time of these interviews uses the "N" word 42 times is what she says.
And so-called Fuhrman tapes. And you of course had an opportunity to listen to this man and espouse
this evil, this personification of evil. And so I'm going to ask Mr. Harris to play exhibit 1368 one more
time. It was a transcript. This was not on tape. The tape had been erased where he said, "We have no
niggers where I grew up." These are two of 42, if you recall. Then this was his actual voice.
(At 10:00 A.M., Defense exhibit 1368, a videotape, was played.)
This is the word text for what he then says on the tape. Now, you heard that voice. No question whose
voice that is. Mr. Darden concedes whose voice that is. They don't do anything. Talking about
women. Doesn't like them any better than he likes African Americans. They don't go out and initiate
contact with some six foot five inch Nigger who has been in prison pumping weights. This is how he
sees this world. That is this man's cynical view of the world. This is this man who is out there
protecting and serving. That is Mark Fuhrman.
Simpson Trial Page
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Closing Arguments: 10 Keys to a Powerful Summation | Young Advocates | ABA Section... Page 1 of 2
Home › Young Advocates › Articles
Closing Arguments: 10 Keys to a Powerful Summation
By Dennis S. Ellis and Adam M. Reich – September 18, 2013
An effective closing argument may turn a closely contested trial in your favor. It can move jurors who are
on the fence to your side or, more likely, provide jurors in your corner with the ammunition necessary to
turn the voting your way during deliberations. Because closing argument is your last chance to talk to the
jury and make a positive impression before ceding control to 12 strangers—admittedly a tough task for
even the least narcissistic trial lawyer—you must not squander this opportunity. To maximize the
effectiveness of your closing argument, consider the following approaches.
1. Prepare the outline of your closing argument before your opening statement. Do not wait until
the end of trial to start preparing your closing argument. Begin drafting your closing argument even
before you prepare your opening statement. This will help you develop the themes of your case and
present unified, easy-to-follow arguments throughout the trial. Conceptualize three to five “ultimate
conclusions” that you want the jury to reach. At the end of your opening statement, ask the jury three to
five corresponding questions that will lead to your desired conclusions. When it is time to close, repeat
those three to five questions and argue that the jury must reach the “ultimate conclusions” that you
desire.
2. Condense your argument. A lengthy trial is not license for an interminable rehash of everything the
jury witnessed. Like a conclusion in a brief, your closing argument should present a concise summary of
your argument and state your desired relief. Again, consider condensing your entire case into three to
five “ultimate conclusions.” Marshal the evidence and summarize how it supports these conclusions.
3. Employ a three-act structure. Organize the closing argument like a screenplay; your closing
argument should have a beginning, a middle, and an end. The beginning should identify the initial
conflict. Talk about the parties and begin developing the key characters. In the middle, present the
evidence in a favorable light, and show how the conflict was the opposing party’s fault. This should be
done whether you represent the plaintiff or the defendant. If you represent the defendant, do not just
argue that the plaintiff did not prove his or her case. Instead, convince the jurors that the plaintiff is
responsible for his or her own failures or those of the parties.
4. Know which points to emphasize. Be selective about what you emphasize during closing argument.
Emphasize that “now we know who the characters really are.” Remind the jury of the questions posed
during your opening statement and emphasize the key evidence that leads to the desired “ultimate
conclusions.” Emphasize that the point of trial is the search for truth and that your marshaling of the facts
and evidence points to only one possible conclusion, i.e., the one favorable to your client.
5. Do not ignore problems. It is foolhardy to ignore problems or bad facts. Do not act like an ostrich
with its head in the sand; identify and explain away problems for your case. But, remember that while
you need an answer for bad facts, it is important that you do not spend too much time with such subject
matter because it may cause the jury to attach undue importance to such information.
6. Use the evidence. Trials tend to involve testimony from more than one witness and more than one
exhibit. Use whatever evidence was presented at trial to your advantage. Do not paraphrase documents
or reference witness statements; instead, quote them, and display them on an overhead projector, an
easel, or a chalkboard. Highlight for the jury the key points of the trial and give favorable jurors the
material that they need to win arguments during jury deliberations. Use the actual admitted evidence to
lend credibility to your closing argument; a passing reference to what “the evidence has shown” may
cause the jury to question the accuracy of your statements.
7. Cast yourself as a steward, not an advocate. Convince the jury that despite serving as the attorney
for one side, you are merely a steward of the facts who is searching for the truth. If at the end of your
closing argument the jury believes that you presented evidence as objectively as possible and told the
truth rather than pursued a contrived agenda, you are more likely to receive a favorable verdict. One way
to encourage a neutral impression is to refrain from “tit-for-tat” arguments. Present your own view of the
facts without expressly referring to your opponent’s viewpoints or theories.
8. Identify integral jury instructions and discuss any special verdict form. It is important to highlight
key jury instructions during your closing argument. In particular, focus on any burdens of proof or
persuasion mentioned. At the same time that you are discussing jury instructions, you also should
discuss any special verdict form and show the jury precisely how they should fill it out. Sometimes, when
trying to apply the facts to the law, jurors may conclude that your recitation of the facts does not support
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the legal verdict. Help the jurors in this respect by meticulously applying the facts to the law they are
charged to follow.
9. Do not read your closing argument. Your closing argument should be fluid and somewhat
conversational. The jury needs to perceive you as loose, confident, and convincing. If you read your
closing argument from a podium, jurors are not likely to form a strong bond with you and your client.
They may distrust you, find you too rigid, or simply tune you out. To avoid this, do not read your closing
argument; rather, be spontaneous and engaging.
10. Conclude with a memorable phrase, sentence, or anecdote. Conclude your opening with a
memorable phrase or anecdote. Remind the jury not just of the important role that they play in the legal
system and the impact that their verdict will have on your client, but also the message that any verdict
will send to our society as a whole. Plaintiffs want their jurors to be agreeable, so implore all members of
the jury to consider the viewpoints of their fellow jurors, as the collective will of the panel is more
important than individual beliefs. Defendants want their jurors to feel empowered. Remind them that their
individual voices must be heard. Acknowledge that it is humbling to entrust 12 strangers with the fate of
your client, but that you are confident the facts you have presented will lead them to conclude in your
client’s favor. Finally, leave the jury with a phrase, sentence, or anecdote that they will remember when
they go to deliberate; perhaps a historic quote or something that they can rely on when considering the
case. For example, “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the
dictates of our passion, they cannot alter the state of facts and evidence.” John Adams, Closing
Argument in Defense of the Solders in the Boston Massacre Trials (Dec. 1770).
Keywords: litigation, young lawyer, closing argument, jury, evidence, verdict
Dennis S. Ellis is a partner and Adam M. Reich is an associate with Paul Hastings LLP in Los Angeles, California.
Copyright © 2016, American Bar Association. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic
database or retrieval system without the express written consent of the American Bar Association. The
views expressed in this article are those of the author(s) and do not necessarily reflect the positions or
policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the
author(s).
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APPENDIX A
§ 42:2.General rules governing closing arguments, 4 Bus. & Com. Litig. Fed. Cts. §...
4 Bus. & Com. Litig. Fed. Cts. § 42:2 (3d ed.)
Business and Commercial Litigation in Federal Courts 3d
American Bar Association Section of Litigation
Database updated November 2015
Chapter 42. Final Arguments in Jury and Bench Trials
by Marcellus A. McRae * and Daniel S. Floyd
II. Law and Procedure
References
§ 42:2. General rules governing closing arguments
West's Key Number Digest
West's Key Number Digest, Federal Civil Procedure
1970.1
The rules governing closing arguments are relatively simple, but can be easily forgotten in the heat of trial. Nothing
can bring a compelling closing argument to a standstill faster than an objection from opposing counsel (especially one
which is sustained) or a reprimand from the bench.
In federal trials, each party has the right to fully litigate each issue. This right does not guarantee a closing argument in
commercial trials, but courts usually allow it. 1 Closing arguments are a privilege left to the discretion of the court. 2
The order of closing arguments usually is within the discretion of the trial court, but is often governed by which party
has the burden of proof. 3 Counsel for the party with the burden of proof, most likely the plaintiff, 4 presents his
closing argument first. 5 The party with the burden of proof is normally afforded a short rebuttal: a “second bite at
the apple.” 6 During rebuttal, a lawyer has the opportunity to refute arguments presented in his opponent's closing
argument. 7
Case and statutory law give the court wide discretion as to the order and duration of the arguments. For example,
although closing arguments commonly are given before the jury has been instructed, courts have the authority to
schedule closing arguments after the jury instructions. 8 In addition, judges routinely place time limits on closing
arguments. The governing principle is that each attorney receive enough time to fairly present his case. 9 Judges often
consult both litigants' counsel to reach an agreement on the length of closing, but there is a greater trend for courts
to give tighter limits. Most courts give both parties equal amounts of time. 10 Ultimately, the amount of time granted
to the parties rests with the judge's reasonable discretion. 11
The scope of what lawyers may argue in their closing arguments is broad. 12 They are entitled to expound any theory
which is reasonably supported by the evidence, present their interpretations of the evidence, 13 and suggest that the
jury draw certain inferences or conclusions from that evidence. 14 Where the evidence conflicts—as it often does—
a lawyer may ask the jury to resolve the conflict in favor of his client. Attorneys can attack the credibility of those
witnesses who have been impeached at trial. 15 And lawyers are permitted to discuss the applicable law, as long as the
discussion is accurate and consistent with the jury instructions. 16 Indeed, counsel often refer to the jury instructions
in the closing argument. 17
Westlaw. © 2015 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
Footnotes
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
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§ 42:2.General rules governing closing arguments, 4 Bus. & Com. Litig. Fed. Cts. §...
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This chapter is dedicated to the previous coauthors, and fine trial lawyers, Robert S. Warren, Robert E. Cooper, and Thomas
E. Holliday, who have mentored the next generations of trial lawyers at our firm.
Streber v. Hunter, 221 F.3d 701, 733-34, 55 Fed. R. Evid. Serv. 376 (5th Cir. 2000); Matter of Generes, 69 F.3d 821, 825, Bankr.
L. Rep. (CCH) P 76689, 33 Fed. R. Serv. 3d 1082 (7th Cir. 1995) (“Generes has supplied no authority for the proposition that
closing arguments are a constitutional right in civil cases and nor have we been able to find any.”); cf. Victor v. Lawler, 2012
WL 2121331, at *5 (M.D. Pa. 2012) (finding that defendant could waive his right to be present and make a closing argument in
civil rights case). However, courts traditionally allow closing arguments. See Carlin v. Stringer, 365 F.2d 597, 599, 21 A.L.R.3d
1109 (10th Cir. 1966). In contrast, the right to make closing arguments in criminal trials is guaranteed. See Herring v. New
York, 422 U.S. 853, 858, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975) (“There can be no doubt that closing argument for the defense
is a basic element of the adversary factfinding process in a criminal trial.”); see also U.S. v. Richter, 782 F.3d 498, 502-503
(9th Cir. 2015), petition for certiorari filed (U.S. July 1, 2015) (finding that the right to present a closing argument can be
implicitly waived). Each party can waive his or her closing argument. See U.S. ex rel. Hampton v. DeTella, 39 F. Supp. 2d
1031, 1035 (N.D. Ill. 1998), decision aff'd, 221 F.3d 1338 (7th Cir. 2000). Further, a court may prohibit oral argument where
there is no material issue of fact for the jury. See generally Young v. McNeill, 78 S.C. 143, 156, 59 S.E. 986 (1907). If a court
refuses to permit closing argument, counsel should make sure that the record reflects that permission to argue was refused.
Courts have split in criminal cases over whether counsel's silence or acquiescence can constitute waiver. Compare, e.g., U.S.
v. Stenzel, 49 F.3d 658, 661-662 (10th Cir. 1995) (in which court inferred waiver because counsel chose not to request closing
argument), with U.S. v. Martinez, 974 F.2d 589, 591 (5th Cir. 1992) (“As a general proposition, before a waiver of the right to
present closing argument will be found the record must clearly demonstrate its ‘intentional relinquishment or abandonment.’
”); see also Hunter v. Moore, 304 F.3d 1066, 1071-72 (11th Cir. 2002) (affirming grant of habeas petition where petitioner's
counsel had no meaningful opportunity to object to the lack of closing argument at petitioner's criminal trial, and collecting
cases). The United States Supreme Court has held that waiving closing argument—even in a death penalty case—was not
ineffective assistance of counsel. Bell v. Cone, 535 U.S. 685, 692-93, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002). Upon review,
a court is highly deferential to counsel's strategic defense decisions, including waiver of a closing argument. Yarborough v.
Gentry, 540 U.S. 1, 6, 124 S. Ct. 1, 157 L. Ed. 2d 1 (2003) (“deference to counsel's tactical decisions in his closing presentation
is particularly important”); Moore v. Reynolds, 153 F.3d 1086, 1104 (10th Cir. 1998) (“we are unable to say defense counsel's
decision to waive closing argument was anything less than an informed strategic choice.”).
See U.S. v. Stenzel, 49 F.3d 658, 662 (10th Cir. 1995) (“We have found no cases imposing an affirmative duty on a court to offer
counsel the opportunity to argue their case.”). But cf. U.S. v. Evanston, 651 F.3d 1080, 1087-88 (9th Cir. 2011) (holding that
the district court abused its discretion in allowing supplemental argument in criminal trial, after the jury retired to deliberate,
because the argument intruded on the jury's fact-finding role).
Moylan v. Meadow Club, Inc., 979 F.2d 1246, 1251, 1 Wage & Hour Cas. 2d (BNA) 171, 123 Lab. Cas. (CCH) P 35738,
37 Fed. R. Evid. Serv. 241 (7th Cir. 1992) (“It is customary for the party bearing the burden of proof to open and close the
argument.”); Montwood Corp. v. Hot Springs Theme Park Corp., 766 F.2d 359, 364 (8th Cir. 1985) (district court properly
allowed defendant to open and close the arguments because defendant had the burden of proof on the only issue in dispute).
See also Edgerly v. City and County of San Francisco, 2011 WL 2110319, *8 (N.D. Cal. 2011), aff'd in part, vacated in part,
remanded, 713 F.3d 976 (9th Cir. 2013) (recognizing that either side could theoretically present a rebuttal argument because
both parties bore some aspect of the burden of proof, but refusing to let either side present a rebuttal because of the potential
for jury confusion); Eastern Property Development LLC v. Gill, 558 Fed. Appx. 882, 890 (11th Cir. 2014) (“To the extent
[defendant] attempts to reframe the right to open and conclude the closing argument as a substantive right belonging to the
party with the burden of proof, he is mistaken,” recognizing ultimate trial court discretion on order of argument). In criminal
trials, Fed. R. Crim. P. 29.1 fixes the order of argument as Government, Defendant, then Government rebuttal. But see
Masterson v. Thaler, 2014 WL 808165, *38 (S.D. Tex. 2014) (holding that “the order of closing argument does not follow
from the allocation of burdens, but from state statutory law”).
Moylan v. Meadow Club, Inc., supra, 979 F.2d at 1251. In cases where the burden of proof rests with the defense, courts may
permit the defense to argue first, and present a rebuttal. See, e.g., Montwood Corp. v. Hot Springs Theme Park Corp., supra,
766 F.2d at 364 (defendant had burden of proof and was allowed to argue first).
See n. 3, supra.
The plaintiff's rebuttal is discussed in greater detail in § 42:43. Whether to permit a rebuttal argument is discretionary, but
courts often allow it. Edgerly v. City and County of San Francisco, 2011 WL 2110319, *7 (N.D. Cal. 2011), aff'd in part,
vacated in part, remanded, 713 F.3d 976 (9th Cir. 2013); Fernandez v. Corporacion Insular De Seguros, 79 F.3d 207, 209-210,
34 Fed. R. Serv. 3d 1204 (1st Cir. 1996) (“The decision to permit rebuttal [in a civil action] is a procedural matter which rests
within the sound discretion of the trial judge and rarely (if ever) provides fertile grounds for appeal.”). But see Wagner v.
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County of Maricopa, 706 F.3d 942, 948 (9th Cir. 2013), cert. denied, 133 S. Ct. 1504, 185 L. Ed. 2d 551 (2013) (holding that
“if the court intends to restrict rebuttal, the litigants should be so advised prior to the argument,” and reversing where “[t]he
district court abruptly eliminated the plaintiff's opportunity for rebuttal argument”); see also 706 F.3d 942 at 954 (Smith,
J., dissenting) (“[T]he majority never explains what law gives a plaintiff in the District of Arizona an inalienable right to
rebuttal argument, much less how the district court abused its discretion in shaping closing arguments.”). See also Martin v.
Chesebrough-Pond's, Inc., 614 F.2d 498, 501, 53 A.L.R. Fed. 894 (5th Cir. 1980) (noting that “normally the party with the
burden of proof has the right to open and close,” but denying particular codefendant rebuttal); Carnegie Mellon University
v. Marvell Technology Group, Ltd., 2013 WL 4511293, at *6 n.14 (W.D. Pa. 2013) (denying rebuttal when closing arguments
had already lasted for over three hours). A court may prohibit rebuttal argument where defense counsel waives his client's
right to present a closing argument. See Carlin v. Stringer, 365 F.2d 597, 599, 21 A.L.R.3d 1109 (10th Cir. 1966) (defendant's
waiver precluded plaintiff from using his reserved rebuttal time).
See Julander v. Ford Motor Co., 488 F.2d 839, 842 (10th Cir. 1973) (“It is improper for counsel for a plaintiff to inject new
matter in his final closing argument which should be limited to a rebuttal to defense counsel's closing argument, and nothing
more.”). Counsel is limited to addressing those arguments raised by opposing counsel during his closing. See Julandar, supra,
488 F.2d at 842. Appellate courts exercise caution in setting aside a judgment because of improper closing remarks, vacating
only if the improper remarks influenced the verdict or aroused the sympathy of the jury. See also Graves v. City of Waterloo,
Iowa, 2011 WL 5563546, *5 (N.D. Iowa 2011) (noting that defendant's strategic decision not to argue damages in his closing
argument did not give plaintiff anything to rebut and foreclosed a second bite at the apple). Thomson v. Boles, 123 F.2d 487,
495 (C.C.A. 8th Cir. 1941).
See Fed. R. Civ. P. 51(b)(3) (“The court … may instruct the jury at any time before the jury is discharged.”). However,
even when counsel argues before the jury is instructed, the court must inform counsel of generally what instructions will be
given. See Fed. R. Civ. P. 51(b)(1), (2) (“The court … must inform the parties of its proposed instructions … before final
jury arguments …”); Jones v. Southern Pacific R.R., 962 F.2d 447, 450-451, 35 Fed. R. Evid. Serv. 1163, 22 Fed. R. Serv.
3d 1130 (5th Cir. 1992) (holding counsel only needs to be apprised of the substance of the instructions before argument, not
the verbatim instructions themselves). See also Ebanks v. Southern Ry. Co., 640 F.2d 675, 678 (5th Cir. 1981) (stating that
instructing jury first permits “counsel to argue effectively upon the evidence and to know in advance the guiding principles
under which the argument should be made”). But see U.S. v. Evanston, 651 F.3d 1080, 1087-88 (9th Cir. 2011) (holding that
the district court abused its discretion in allowing supplemental argument in criminal trial, after the jury retired to deliberate,
because the argument intruded on the jury's fact-finding role).
See U.S. v. Johnson, 639 F.3d 433, 442 (8th Cir. 2011) (“District court has broad discretion in controlling closing arguments.”);
Jeter v. St. Regis Paper Co., 507 F.2d 973, 980, 2 O.S.H. Cas. (BNA) 1591, 1974-1975 O.S.H. Dec. (CCH) P 19298, 35 A.L.R.
Fed. 449 (5th Cir. 1975) (“The fact that this gave Mid-South and St. Regis a combined total of allocated time greater than
Jeter's counsel does not require reversal, absent manifest injustice.”).
Bonilla v. Yamaha Motors Corp., 955 F.2d 150, 155, 34 Fed. R. Evid. Serv. 1052 (1st Cir. 1992) (“As is most often the case,
the trial court granted each party equal time for closing arguments.”). Where multiple attorneys represent one or more parties
in a case, the number of attorneys permitted to address the jury is a discretionary decision for the court. See U.S. v. Johnson,
639 F.3d 433, 442 (8th Cir. 2011) (“The district court also has broad discretion in controlling closing arguments.”). Where
coparties are represented by separate counsel, they usually stipulate as to order and duration of argument. See Jeter v. St. Regis
Paper Co., 507 F.2d 973, 980, 2 O.S.H. Cas. (BNA) 1591, 1974-1975 O.S.H. Dec. (CCH) P 19298, 35 A.L.R. Fed. 449 (5th Cir.
1975). In such cases—especially cases with multiple defendants—the time allocation can be of great import with very serious
long-term consequence to the parties. In some cases, the first named defendant is a nominal party selected first by the plaintiff
because of an alphabetical order listing of the defendants or for tactical reasons, including public relations or control over the
order of proof. In other cases, the first named defendant is the primary focus even though other defendants bear equal—if not
greater—risk of harm because of their size, exposure, or their position in the case. It is not uncommon for judges to allocate
the amount of time equally as between the plaintiff and the defendants. U.S. v. Diaz, 279 Fed. Appx. 739, 744 (11th Cir. 2008)
(saying the defendant in a criminal trial had the “opportunity to make all legally tenable arguments that are supported by the
facts of the case,” and rejecting the argument that the government's closing argument time equaled all the defendants' time
put together). It may be important, however, that the true defendant be the “lead” in any closing argument. Alternatively, it
may be more appropriate for a more nominal defendant to take the lead so as to shift the focus in order to demonstrate the
weakness of plaintiff's case. All of these are issues which must be addressed in advance so the defendants present a unified
position concerning allocation of time to the court. Depending upon the parties and their counsel, these issues can be difficult
to resolve and should be discussed both at the pretrial and trial phase. The same holds true for multiple plaintiffs.
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See Rosiello v. Sellman, 354 F.2d 219, 220 (5th Cir. 1965) (“A trial judge in the exercise of sound discretion may always
limit argument.”). As is expected, given this discretion, time limits allowed vary from trial to trial. See, e.g., Joplin v. DenverChicago Trucking Co., 329 F.2d 396, 397 (8th Cir. 1964) (40 minute time limit); Murphy v. National R. R. Passenger Corp.,
547 F.2d 816, 818, 1 Fed. R. Evid. Serv. 598 (4th Cir. 1977) (45 minute limit per side); Rosiello v. Sellman, 354 F.2d at 220
(30 minute limit); Carnegie Mellon University v. Marvell Technology Group, Ltd., 2013 WL 4511293 at *6 n.14 (W.D. Pa.
2013) (totaling over three hours).
See U.S. v. Robichaux, 995 F.2d 565, 570, 39 Fed. R. Evid. Serv. 210 (5th Cir. 1993) (“Counsel is allowed wide latitude
in closing arguments.”); U.S. v. Prantil, 764 F.2d 548, 555 (9th Cir. 1985). Additionally, the scope of closing argument is
governed by federal law, even in diversity issues. See Learmonth v. Sears, Roebuck and Co., 631 F.3d 724, 731, 84 Fed. R.
Evid. Serv. 698 (5th Cir. 2011) (citing Whitehead v. Food Max of Mississippi, Inc., 163 F.3d 265, 275, 42 Fed. R. Serv. 3d
1001 (5th Cir. 1998)).
See Harris v. Pacific Floor Mach. Mfg. Co., 856 F.2d 64, 68, 26 Fed. R. Evid. Serv. 1067 (8th Cir. 1988); Holmes v.
Secretary, Dept. of Corrections, 2013 WL 4028190, at *9 (M.D. Fla. 2013) (rejecting argument that prosecutor cannot present
a “testimony board” that contained the prosecutor's interpretation of the elements of eyewitness testimony).
See Bennett v. Nucor Corp., 656 F.3d 802, 813, 113 Fair Empl. Prac. Cas. (BNA) 616, 94 Empl. Prac. Dec. (CCH) P 44283
(8th Cir. 2011), cert. denied, 132 S. Ct. 1807, 182 L. Ed. 2d 619, 114 Fair Empl. Prac. Cas. (BNA) 1024 (2012) and cert. denied,
132 S. Ct. 1861, 182 L. Ed. 2d 644, 114 Fair Empl. Prac. Cas. (BNA) 1088 (2012) (“[T]he court may grant counsel wide latitude
in arguing inferences form the evidence presented.”); Chicago & N.W. Ry. Co. v. Kelly, 84 F.2d 569, 573 (C.C.A. 8th Cir.
1936) (“the arguments of counsel must be confined to the issues of the case, the applicable law, the pertinent evidence, and
such legitimate inferences as may properly be drawn therefrom.”); Claudio v. Mattituck-Cutchogue Union Free School Dist.,
955 F. Supp. 2d 118, 150 (E.D. N.Y. 2013) (allowing plaintiff's counsel to make an adverse inference suggestion to the jury in
closing argument against the defense that it purposefully failed to retain a specific video or destroyed the video).
See Duncan v. St. Louis-San Francisco Ry. Co., 480 F.2d 79, 84 (8th Cir. 1973); Spahr v. Ferber Resorts, LLC, 686 F. Supp.
2d 1214, 1225 (D. Utah 2010), aff'd, 419 Fed. Appx. 796 (10th Cir. 2011) (“[T]he court is baffled by [defendant's] apparent
contention that it is improper for counsel to make arguments about witness' credibility. That is exactly a purpose of closing.
Calling his clients decent and honest, saying his expert is honest, and asserting that an opposing witness' testimony is not
worth a hill of beans are precisely what [plaintiff's] counsel was expected to do at closing.”); Carnegie Mellon University v.
Marvell Technology Group, Ltd., 2013 WL 4511293, at *2 (W.D. Pa. 2013) (stating that during closing argument parties are
free to comment on the credibility of the witnesses). But see McGlothin v. Jackson, 2013 WL 5656142, *7 (S.D. Ohio 2013),
supplemented, 2013 WL 5947142 (S.D. Ohio 2013) (“During closing argument, the prosecutor and defense counsel are not
permitted to express their personal beliefs as to a witness's credibility, but they are free to comment on what the evidence has
shown and on the reasonable inferences that might be drawn from the evidence.”) (internal citations omitted).
See Ebanks v. Southern Ry. Co., 640 F.2d 675, 677-678 (5th Cir. 1981).
The role of jury instructions is discussed in § 42:7.
End of Document
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© 2016 Thomson Reuters. No claim to original U.S. Government Works.
4
APPENDIX B
Caudle v. District of Columbia, 707 F.3d 354 (2013)
117 Fair Empl.Prac.Cas. (BNA) 525, 404 U.S.App.D.C. 56, 84 Fed.R.Serv.3d 1235
KeyCite Yellow Flag - Negative Treatment
Distinguished by
Apple, Inc. v. Samsung Electronics Co., Ltd., N.D.Cal.,
February 7, 2014
West Headnotes (13)
[1]
707 F.3d 354
United States Court of Appeals,
District of Columbia Circuit.
In light of thrust of entire closing argument,
District of Columbia's objections to three
earlier “golden rule arguments” made by
counsel for District police officers, and fact
that the issue was raised when District moved
for mistrial immediately after counsel's closing
argument, a “send a message” argument
made by officers' counsel was properly before
court of appeals despite District's failure to
contemporaneously object or mention it in its
post-trial motion, in Title VII action alleging
retaliation by District. Civil Rights Act of
1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.
Frazier CAUDLE et al., Appellees
v.
DISTRICT OF COLUMBIA, Appellant.
No. 11–7107.
|
Argued Nov. 14, 2012.
|
Decided Feb. 15, 2013.
Synopsis
Background: African-American police officers brought
action against District of Columbia, alleging that police
department retaliated against them in violation of Title
VII. Following entry of jury's verdict in officers' favor,
District moved for judgment as matter of law (JMOL),
new trial, and remittitur of jury's award. The United States
District Court for the District of Columbia, Henry H.
Kennedy, Jr., J., 804 F.Supp.2d 32, denied the motion.
District appealed.
Federal Courts
Trial
1 Cases that cite this headnote
[2]
Federal Courts
New Trial, Rehearing, or
Reconsideration
A district court's denial of a new trial motion
is reviewed for abuse of discretion. Fed.Rules
Civ.Proc.Rule 59(a)(1)(A), 28 U.S.C.A.
Cases that cite this headnote
Holdings: The Court of Appeals, Karen LeCraft
Henderson, Circuit Judge, held that:
[3]
[1] as a matter of first impression, a “golden rule
argument” with respect to liability is improper, and
A new trial may be granted based on improper
jury argument. Fed.Rules Civ.Proc.Rule 59(a)
(1)(A), 28 U.S.C.A.
[2] error was not harmless as to three improper “golden
rule” arguments and one improper “send a message”
argument made by officers' counsel during closing
arguments.
Cases that cite this headnote
[4]
Reversed and remanded.
Federal Civil Procedure
Misconduct of parties, counsel or
witnesses
Federal Civil Procedure
Statements as to facts, comments and
arguments in general
The jury may not return a verdict based on
personal interest, bias, or prejudice, and an
argument asking it to do so is improper.
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
1
Caudle v. District of Columbia, 707 F.3d 354 (2013)
117 Fair Empl.Prac.Cas. (BNA) 525, 404 U.S.App.D.C. 56, 84 Fed.R.Serv.3d 1235
arguments, in Title VII action alleging
retaliation by District. Civil Rights Act of
1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.
2 Cases that cite this headnote
[5]
Federal Civil Procedure
Statements as to facts, comments and
arguments in general
A “golden rule argument,” which asks jurors
to place themselves in the position of a
party, is universally condemned because it
encourages the jury to depart from neutrality
and to decide the case on the basis of personal
interest and bias rather than on evidence.
Cases that cite this headnote
[9]
The legal standard for retaliation in violation
of Title VII, prohibiting employer actions
that would have been materially adverse to a
reasonable employee, is an objective standard,
which avoids the uncertainties and unfair
discrepancies that can plague a judicial effort
to determine a plaintiff's unusual subjective
feelings. Civil Rights Act of 1964, § 701 et seq.,
42 U.S.C.A. § 2000e et seq.
4 Cases that cite this headnote
[6]
Federal Civil Procedure
Statements as to facts, comments and
arguments in general
A “golden rule argument” with respect to
liability is improper.
Cases that cite this headnote
[10]
2 Cases that cite this headnote
[7]
Cases that cite this headnote
Federal Civil Procedure
Statements as to facts, comments and
arguments in general
Statements during closing argument of
counsel for District of Columbia police
officers, asking jurors “would you hesitate
to speak up if you knew that speaking
up would mean that your boss would
call a meeting,” and “[w]ouldn't you think
twice about complaining about workplace
discrimination,” were improper golden rule
Federal Civil Procedure
Statements as to facts, comments and
arguments in general
The “send a message” closing argument
of counsel for District of Columbia police
officers, asking jury to preserve the rights
of everyone, ensure that people besides the
officers would be free to exercise their rights
without fear, and do what was right to
ensure that justice was done, was improper,
in Title VII action alleging retaliation by
District; argument was made after district
court had sustained three objections to golden
rule arguments, and the “send a message”
argument, like the golden rule arguments,
diverted jury's attention from its duty to
decide the case based on the facts and the law
instead of emotion, personal interest, or bias.
Civil Rights Act of 1964, § 701 et seq., 42
U.S.C.A. § 2000e et seq.
Federal Civil Procedure
Statements as to facts, comments and
arguments in general
Closing argument of counsel for District of
Columbia police officers, asking jurors to
“put yourselves in the plaintiffs' shoes” in
“determin[ing] how to make plaintiffs whole,”
was an improper golden rule argument,
in Title VII action alleging retaliation by
District. Civil Rights Act of 1964, § 701 et seq.,
42 U.S.C.A. § 2000e et seq.
[8]
Civil Rights
Adverse actions in general
4 Cases that cite this headnote
[11]
Federal Courts
Harmless and Reversible Error
In determining whether an error was harmless,
the court of appeals measures the harm in
terms of whether the error had substantial and
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
2
Caudle v. District of Columbia, 707 F.3d 354 (2013)
117 Fair Empl.Prac.Cas. (BNA) 525, 404 U.S.App.D.C. 56, 84 Fed.R.Serv.3d 1235
injurious effect or influence in determining
the jury's verdict, not merely whether the
record evidence is sufficient absent the error
to warrant the jury verdict.
1 Cases that cite this headnote
[12]
Federal Courts
Evidence
An evidentiary error is harmless if: (1) the case
is not close; (2) the issue is not central; or
(3) effective steps were taken to mitigate the
effects of the error.
Cases that cite this headnote
[13]
Federal Courts
Argument and conduct of counsel
Error was not harmless, as to three improper
“golden rule” arguments and one improper
“send a message” argument made by counsel
for District of Columbia police officers,
during closing arguments in Title VII action
alleging retaliation by District, and thus, new
trial was required; the case was a close case
that hinged on determination of motive based
on circumstantial evidence, claims had serious
evidentiary weaknesses that jury resolved
in officers' favor, jury awarded officers
almost $1 million despite the tenuousness
of the damages evidence, counsel's improper
comments went to central issues in the
case concerning liability and damages, each
improper comment escalated from the last,
and the general jury instruction, to decide the
case without prejudice, sympathy, fear, favor,
or public opinion, did not eliminate the unfair
prejudice. Civil Rights Act of 1964, § 701 et
seq., 42 U.S.C.A. § 2000e et seq.
Cases that cite this headnote
*356 Appeal from the United States District Court for
the District of Columbia (No. 1:08–cv–00205).
Attorneys and Law Firms
Carl J. Schifferle, Assistant Attorney General, Office of
the Attorney General for the District of Columbia, argued
the cause for the appellant. Irvin B. Nathan, Attorney
General, Todd S. Kim, Solicitor General, and Donna M.
Murasky, Deputy Solicitor, were on brief.
Jennifer I. Klar argued the cause for the appellees. Megan
Cacace and John P. Relman were on brief.
Before: HENDERSON and ROGERS, Circuit Judges,
and SENTELLE, Senior Circuit Judge.
Opinion
Opinion for the
HENDERSON.
Court
filed
by
Circuit
Judge
KAREN LECRAFT HENDERSON, Circuit Judge:
**58 Appellees Frazier Caudle, Nikeith Goins, William
James, Sholanda Miller and Donald Smalls (collectively,
appellees) sued the District of Columbia (District), their
employer, for retaliation under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (Title
VII). During closing argument, their counsel made four
inappropriate statements—the last **59 *357 three
of which occurred after the district court had sustained
objections to the earlier iterations. The jury found in favor
of the appellees and awarded compensatory damages
to each except Miller. The district court subsequently
denied the District's post-trial motions, including those
seeking a new trial and/or remittitur. The District argues
on appeal, inter alia, that it is entitled to a new trial
because of the improper closing argument. We agree
and reverse the district court's judgment, remanding for
further proceedings consistent with this opinion. 1
I.
In 2005, the appellees worked for the First District of the
District's Metropolitan Police Department (MPD). Goins
worked in the MPD's Auto Theft Unit (ATU) and the
other appellees (FMU appellees) worked in MPD's Focus
Mission Unit (FMU). At that time, Commander Diane
Groomes (Groomes) oversaw MPD's First District.
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Beginning in late 2005, Lieutenant Ronald Wilkins
(Wilkins) became the appellees' supervisor. The appellees
began to believe that Wilkins was discriminating against
them on the basis of race. On June 16, 2006, 2 the
FMU appellees sent an anonymous letter to Groomes
complaining about Wilkins's alleged discrimination. On
June 20, Groomes called a meeting of all FMU officers
and asked whether they could “work together.” Joint
Appendix (JA) 270, 624. The meeting was tense and,
afterward, FMU officers generally had trouble getting
along. Around the same time, Goins (who did not join
in the June 16 anonymous letter) complained to Wilkins
about “unfair treatment.” JA 459, 477–80.
By the end of July or the beginning of August, Groomes
decided to reorganize FMU and ATU. On August
14 she posted vacancy announcements for FMU and
ATU, instructing applicants to apply by August 18.
Additionally, officers who wished to stay in FMU or
ATU had to reapply to keep their jobs. Appellees Caudle,
James, Smalls and Goins 3 all reapplied. 4
On August 24, the appellees drafted and signed a
complaint that alleged retaliation and discrimination by
the MPD based on, inter alia, the August 14 vacancy
announcements. They sent the letter to the District Office
of Human Rights and to the United States Department
of Justice (DOJ) but did not inform anyone at the MPD
about it.
On September 27, Groomes posted her selections for
FMU and ATU officers. Instead of being assigned to their
former positions, Goins, James and Smalls were assigned
to a new Intel Unit, 5 while Caudle **60 *358 and
Miller were assigned to patrol. Smalls worked in the Intel
Unit from approximately October 2006 until February
2008, when he was promoted to sergeant and left the Intel
Unit. Eventually, the MPD disbanded the Intel Unit and
assigned Goins and James to patrol. On February 5, 2008
—after filing charges of retaliation with the United States
Equal Employment Opportunity Commission and the
District Office of Human Rights—they sued the District.
At the end of a three-week trial and during closing
arguments, the appellees' counsel made four statements to
which the District objected and now challenges on appeal.
First, she stated:
You heard [the] plaintiffs explain
that they felt humiliated, berated,
and isolated at the [June 20]
meeting listening to their supervisors
and peers comment on their
discrimination complaint. Now, ask
yourself, would you hesitate to speak
up if you knew that speaking up
would mean that your boss would
call a meeting with your entire
office....
JA 589 (emphases added). The District objected and the
trial court sustained the objection but denied its request
for a curative instruction.
Almost immediately after the court sustained the first
objection, the appellees' counsel stated: “Ask yourself
this: Wouldn't you think twice about complaining about
workplace discrimination....” JA 590 (emphasis added).
Once again, the court sustained the District's objection but
did not give a curative instruction.
The appellees' counsel then argued:
Now, in the end it is your job
to determine how to make [the]
plaintiffs whole for what they have
had to endure. As you make those
decisions, we ask yourselves [sic] to
put yourselves in the plaintiffs' shoes.
What would it do to you to have your
complaint broadcast to your entire
office, to be the only one excluded....
JA 591 (emphases added). After the District objected, the
district court sustained the objection and instructed the
jury: “Ladies and gentlemen of the jury, this is what is
called a golden rule argument, asking you to place yourself
in the position of the plaintiffs. You should not consider
such an argument.” JA 591–92.
[1] Finally—shortly after the district court sustained the
last objection—the appellees' counsel concluded:
By protecting plaintiffs' right to
complain about unlawful conduct
without reprisal, you preserve the
rights not just of plaintiffs but of
everyone. By ensuring that plaintiffs
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117 Fair Empl.Prac.Cas. (BNA) 525, 404 U.S.App.D.C. 56, 84 Fed.R.Serv.3d 1235
are made whole for what they have
endured, you ensure that others will
be free to exercise their rights without
fear. Yours is an important job and
we trust that you will [do what] is
right and ensure that justice is done.
JA 593 (emphases added). 6
The jury returned verdicts for the appellees and awarded
a total of $900,000 in compensatory damages; $250,000
to **61 *359 Smalls, $250,000 to James, $200,000 to
Caudle, $200,000 to Goins and $0 to Miller. The court
then awarded back pay and prejudgment interest in the
amount of $14,399 to Smalls, $51,666 to James, $36,454 to
Caudle, $36,785 to Goins and $0 to Miller. The court also
enjoined the District from engaging in further retaliation
and awarded the appellees their litigation costs.
II.
[2] The district court “may, on motion, grant a new trial
on all or some of the issues ... after a jury trial, for any
reason for which a new trial has heretofore been granted
in an action at law in federal court.” Fed.R.Civ.P. 59(a)
(1)(A). We review the district court's denial of a new trial
motion for abuse of discretion. See Daskalea v. District of
Columbia, 227 F.3d 433, 443 (D.C.Cir.2000). A new trial
is unwarranted if the trial error is harmless. See United
States v. Whitmore, 359 F.3d 609, 624 (D.C.Cir.2004).
administered unequally as between the rich and the poor”
warranted mistrial).
[5] The appellees' counsel made four inappropriate
statements during her closing argument. The first three
are “golden rule” arguments. A golden rule argument—
which asks “jurors to place themselves in the position of a
party,” see, e.g., Ins. Co. of N. Am. v. U.S. Gypsum Co., 870
F.2d 148, 154 (4th Cir.1989)—is “universally condemned
because it encourages the jury to depart from neutrality
and to decide the case on the basis of personal interest and
bias rather than on evidence.” Granfield v. CSX Transp.,
Inc., 597 F.3d 474, 491 (1st Cir.2010) (quotation marks
omitted); see also Arnold v. E. Air Lines, Inc., 681 F.2d
186, 199 (4th Cir.1982) (“The Golden Rule and sympathy
appeals are ... obviously improper arguments.... Having
no legal relevance to any of the real issues, they were
per se objectionable....”); Har–Pen Truck Lines, Inc. v.
Mills, 378 F.2d 705, 714 (5th Cir.1967) (“The real danger
is that the sympathy and the feelings of the jury will be
encouraged and aroused so that the jury will decide the
case and award damages out of relation to actual fault
and actual damage.”). For example, it is impermissible (1)
to ask jurors how much the loss of the use of their legs
would mean to them, Leathers v. Gen. Motors Corp., 546
F.2d 1083, 1085–86 (4th Cir.1976); (2) to tell jurors “do
unto others as you would have them do unto you,” Klotz
v. Sears, Roebuck & Co., 267 F.2d 53, 54 (7th Cir.1959);
or (3) to tell jurors, in a reverse golden rule argument, “I
don't want to ask you to place yourself in [the plaintiff's]
position,” Loose v. Offshore Navigation, Inc., 670 F.2d
493, 496 (5th Cir.1982).
While all circuits that have considered the issue have held
a golden rule argument improper if made with respect
[3] [4] A new trial may be granted based on improper to damages, there appears to be, as the district court
**62 *360 noted, a circuit split regarding whether such
jury argument. See, e.g., United States ex rel. Miller v.
argument
is improper if made with respect to liability. At
Bill Harbert Int'l Constr., Inc., 608 F.3d 871, 897–98
least four circuits have found such a golden rule argument
(D.C.Cir.2010) (per curiam) (“[A]rguments to the jury
permissible. See, e.g., McNely v. Ocala Star–Banner Corp.,
about a defendant's wealth are grounds for new trial.”);
99 F.3d 1068, 1071 n. 3 (11th Cir.1996); Johnson v.
see also Wash. Annapolis Hotel Co. v. Riddle, 171 F.2d
Celotex Corp., 899 F.2d 1281, 1289 (2d Cir.1990); Shultz
732, 740 (D.C.Cir.1948). The jury may not return a
v. Rice, 809 F.2d 643, 651–52 (10th Cir.1986); Burrage v.
verdict based on personal interest, bias or prejudice and
Harrell, 537 F.2d 837, 839 (5th Cir.1976). On the other
an argument asking it to do so is improper. See, e.g.,
hand, the Third Circuit has rejected the liability-damages
Miller, 608 F.3d at 897–98 (references to defendant's
distinction. Edwards v. City of Phila., 860 F.2d 568, 574 n.
wealth improper because “[t]he only way the information
6 (3d Cir.1988) (“We see no rational basis for a rule that
could have affected the jury was to prejudice it”); Riddle,
proscribes the ‘Golden Rule’ argument when a plaintiff
171 F.2d at 740 (jury argument “that justice should be
argues damages, but permits it when the defendant argues
A.
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liability.... [because the] same concerns are present in
both situations—the creation of undue sympathy and
emotion” (quotation marks and brackets omitted)); see
also Ins. Co. of N. Am., Inc., 870 F.2d at 154 (suggesting
but not holding that defense counsel's opening statement
—“ asking the jurors to consider whether any of them
would like to be accused of fraud based upon the evidence
which they were about to hear”—was improper); Joan W.
v. City of Chicago, 771 F.2d 1020, 1022 (7th Cir.1985)
(“[The Plaintiff] urges that the Golden Rule argument is
not objectionable when it refers only to the assessment
of credibility. There is no reason for such a distinction
because the jury's departure from its neutral role is equally
inappropriate regardless of the issue at stake.”).
[6] We join our sister circuits and hold that a golden
rule argument is improper and may thus serve as the
basis for a new trial. 7 Further, we do not recognize
a per se distinction between a golden rule argument
relating to damages and the same argument regarding
liability. Courts forbid golden rule arguments to prevent
the jury from deciding a case based on inappropriate
considerations such as emotion. See, e.g., Stokes v.
Delcambre, 710 F.2d 1120, 1128 (5th Cir.1983) (“The
rule's purpose is to reduce the risk of a jury decision
based on emotion rather than trial evidence.”). It is
no more appropriate for a jury to decide a defendant's
liability vel non based on an improper consideration than
to use the same consideration to determine damages.
Accordingly, we agree with the Third Circuit that a golden
rule argument made with respect to liability as well as
damages is impermissible.
(emphasis added). The appellees argue that the statements
are permissible because they explain the legal standard for
retaliation under Burlington Northern & Santa Fe Railway
Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d
345 (2006). But **63 *361 the Burlington Northern
standard—which forbids “employer actions that would
have been materially adverse to a reasonable employee”—
is an objective standard. 548 U.S. at 57, 126 S.Ct. 2405
(emphasis added). Because it is objective, “[i]t avoids the
uncertainties and unfair discrepancies that can plague a
judicial effort to determine a plaintiff's unusual subjective
feelings.” Id. at 68–69, 126 S.Ct. 2405. As the district court
necessarily found in sustaining the objections, however,
the appellees' counsel's statements did not describe an
objective standard. Rather, they asked the jurors to decide
how each of them—not a reasonable person—would feel
if he were in the appellees' situation.
[10] The fourth statement, while not a golden rule
argument, is also inappropriate. The appellees' counsel
stated:
By protecting plaintiffs' right to
complain about unlawful conduct
without reprisal, you preserve the
rights not just of plaintiffs but of
everyone. By ensuring that plaintiffs
are made whole for what they have
endured, you ensure that others
will be free to exercise their rights
without fear. Yours is an important
job and we trust that you will [do
what] is right and ensure that justice
is done.
[7] [8] [9] We conclude that the appellees' counsel's first
three above-quoted statements are golden rule arguments.
JA 593. This is a so-called “send a message” argument
The third statement, addressed to damages, is plainly
that, alone, might not be grounds for reversal,
improper; she asked the jury to “put yourselves in the
Carter v. District of Columbia, 795 F.2d 116, 138–39
plaintiffs' shoes” in “determin[ing] how to make plaintiffs
(D.C.Cir.1986). Here, given the fact that the appellees'
whole.” JA 591. This is a quintessential invocation of
counsel made this argument after the district court had
the golden rule and the district court was correct to
sustained three objections to golden rule arguments—
sustain the objection and instruct the jury to disregard
her send a message argument was also inappropriate
it. While the propriety of the first two statements is
because, like the golden rule arguments, it diverted the
a closer question, we nonetheless conclude that they
jury's attention from its duty to decide the case based on
also constitute golden rule arguments addressing liability.
the facts and the law instead of emotion, personal interest
The appellees' counsel stated, inter alia, “would you
or bias.
hesitate to speak up if you knew that speaking up would
mean that your boss would call a meeting,” JA 589
We next address whether the improper statements warrant
(emphases added), and “[w]ouldn't you think twice about
a new trial.
complaining about workplace discrimination.” JA 590
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117 Fair Empl.Prac.Cas. (BNA) 525, 404 U.S.App.D.C. 56, 84 Fed.R.Serv.3d 1235
in protected activity by complaining about “unfair
treatment” to Wilkins; however, Goins's testimony on
B.
this point was equivocal at best. Goins stated that he
complained to Wilkins by “tell[ing] him certain things I
The district court concluded that a new trial was
didn't agree with.... [w]henever I felt unfair treatment.”
unnecessary because “any minimal prejudice that might
JA 459. He admitted, however, that he never referred to
have arisen from counsel's comments” was cured by the
racial discrimination. On cross-examination, the District's
fact that (1) the court sustained prompt objections to the
counsel asked Goins: “[Y]ou never complained of unfair
three golden rule arguments; (2) after the third iteration,
treatment based upon your race, correct?” to which he
the court instructed the jurors to disregard it and (3) in its
responded: “I never said directly, but, indirectly, within
general jury instructions, the court directed the jurors to
my complaint, it was voiced, yes, sir.” JA 478. When
“decide the facts of this case only from a fair evaluation
pressed on the point, he admitted “I might not have
of all of the evidence without prejudice, sympathy, fear,
said it directly that it was racial treatment.” JA 479.
favor, or public opinion.” Caudle v. District of Columbia,
Goins also stated that he complained about “unfair
804 F.Supp.2d 32, 53 (D.D.C.2011) (quotation marks
treatment” at staff meetings, but the District's counsel's
omitted).
cross-examination confirmed that he “never said ... that
[11]
[12]
[13] In determining whether a new trial race discrimination was at play” or that “white officers are
being treated one way and black officers are being treated
is warranted, we must determine whether the error is
another way.” JA 479–80.
harmless. We do so by
measur[ing] the harm in terms of
whether the error had substantial
and injurious effect or influence
in determining the jury's verdict,
not merely whether the record
evidence is sufficient absent the
error to warrant [the jury verdict].
Consequently, an evidentiary error
is harmless if (1) the case is not
close, (2) the issue not central, or (3)
effective steps were taken to mitigate
the effects of the error.
Ashcraft & Gerel v. Coady, 244 F.3d 948, 953
(D.C.Cir.2001) (quotation marks and citations omitted).
The appellees' counsel's improper argument was not
harmless. First, this was a close case. Like many retaliation
cases, it hinged on a determination of motive based on
circumstantial evidence. Their claims also had serious
evidentiary weaknesses that the jury resolved in their
favor.
*362 **64 For example, at trial, the appellees presented
two alternative theories to support Goins (to whom
the jury awarded $236,785) having engaged in protected
activity that was known to Groomes at the time she
allegedly retaliated against him. See Talavera v. Shah,
638 F.3d 303, 313 (D.C.Cir.2011) (retaliation claim fails
if employee does not engage in protected activity known
to supervisor). First, they argued that Goins engaged
Alternatively, the appellees argued that Groomes knew—
at the time she allegedly retaliated against Goins—that
Goins engaged in protected activity by signing the August
24, 2006 complaint. The appellees testified, however, that
they did not send the August 24 complaint to the MPD
or inform anyone at the MPD about the letter; rather,
they sent the letter to DOJ and the District Office of
Human Rights. Groomes and others testified that they
were unaware of the letter at the time of the alleged
retaliation.
Furthermore, despite the fact that the appellees' damages
evidence was tenuous at best, the jury awarded almost
one million dollars. See Whitehead v. Food Max of Miss.,
Inc., 163 F.3d 265, 278 (5th Cir.1998) (“That the awards
were improperly influenced by passion and prejudice is
indicated by their size.”). 8
Second, the appellees' counsel's comments went to central
issues in the case. See Carter, 795 F.2d at 132 (issue central
because “whether the defendants engaged in misconduct
with respect to their arrest of the plaintiffs was ... the
overarching question in the case”). There was only one
theory of liability in this case—retaliation—and the first
two comments were directed at a contested element of
retaliation. The third comment went to damages—central
to the verdict—and the **65 *363 fourth comment went
to both damages and liability.
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Caudle v. District of Columbia, 707 F.3d 354 (2013)
117 Fair Empl.Prac.Cas. (BNA) 525, 404 U.S.App.D.C. 56, 84 Fed.R.Serv.3d 1235
Third, while the district court attempted to mitigate the
prejudice by sustaining objections and giving a curative
instruction, we do not believe the prejudice was so easily
removed. This is not a case in which counsel made
a single misstatement and ceased further misstatements
after the district court sustained an objection. Compare
Stokes, 710 F.2d at 1128 (no plain error because “no
repeated impermissible use of the argument technique”),
with Whitehead, 163 F.3d at 277–78 (multiple improper
arguments, including golden rule argument, warranted
new trial). Instead, the appellees' counsel made four
impermissible statements—each escalating from the last—
three of which came after the district court had sustained
the District's objections. In a similar context, we stated:
Evidence need not be reinforced and
reiterated again and again for it to
be prejudicial enough to warrant
a new trial. Here, it is enough
that there were several inappropriate
references to multiple different
companies' wealth, especially given
that the Government's counsel
emphasized the wealth of the
Harbert companies in his closing
statement and insinuated that the
money would be in better hands if it
were taken from the defendants.
Miller, 608 F.3d at 898.
Nor do we agree that the district court's general
jury instruction—to decide the case without prejudice,
sympathy, fear, favor or public opinion—eliminated the
unfair prejudice to the District caused by the appellees'
counsel. This instruction is given in virtually every trial;
it was not in any way directed at her argument. See, e.g.,
3 KEVIN F. O'MALLEY ET AL., FEDERAL JURY
PRACTICE & INSTRUCTIONS: CIVIL § 103:01 (6th
ed. 2011) (including, as a pattern jury instruction: “The
law does not permit you to be controlled by sympathy,
prejudice, or public opinion.”). As the conduct of the
appellees' counsel in this case was egregious, we conclude
that the generic instruction did not sufficiently counter the
prejudice. 9
Counsel has an obligation—as Justice Holmes put it—
to “play the game according to the rules.” 10 Here, the
appellees' counsel did not. She made four inappropriate
arguments; three after the district court had sustained
objections. As the district court's efforts to cure the
resulting prejudice were, in our view, insufficient, we
reverse and remand for further proceedings consistent
with this opinion.
So ordered.
All Citations
707 F.3d 354, 117 Fair Empl.Prac.Cas. (BNA) 525, 404
U.S.App.D.C. 56, 84 Fed.R.Serv.3d 1235
Footnotes
1
2
3
4
5
6
The District also argued that the district court erred (1) in not granting judgment as a matter of law on Goins's retaliation
claim because Goins did not engage in protected activity known to his supervisor at the time he allegedly suffered
retaliation; (2) in not granting a new trial because of unduly harsh spoliation sanctions it imposed on the District and (3) in
not granting a new trial because it improperly excluded certain evidence that the District treated the appellees favorably
in other respects. We do not reach these issues.
Unless otherwise indicated, all dates are in 2006.
The parties dispute whether Goins applied to FMU or ATU.
Miller did not submit a reapplication. She had sought a transfer from FMU to patrol so she could work a day shift. She
was transferred to patrol but not to the day shift. By the time she was notified of her transfer, it was too late for her to
apply to stay with FMU.
Before posting her decision, Groomes offered Goins, James and Smalls positions in the Intel Unit, which they accepted
(they testified that they did so only because Groomes told them they would not be returning to their former positions).
The parties dispute whether assignment to the Intel Unit was a demotion or a promotion.
The District did not contemporaneously object to the fourth statement, nor mention the fourth statement in its post-trial
motion, although it did raise the issue when it moved for a mistrial immediately after the appellees' closing argument.
We conclude that the fourth statement is properly before us in view of the three earlier objections, the thrust of the entire
closing argument and the contemporaneous mistrial motion.
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
8
Caudle v. District of Columbia, 707 F.3d 354 (2013)
117 Fair Empl.Prac.Cas. (BNA) 525, 404 U.S.App.D.C. 56, 84 Fed.R.Serv.3d 1235
7
8
9
10
We explain infra that the district court may grant a new trial only if the golden rule argument affects substantial rights,
see Fed.R.Civ.P. 61.
The damages evidence was less than compelling. Smalls—who was ultimately promoted to sergeant—testified that his
“blood pressure went up,” he “couldn't sleep” and the events “just consumed [his] thoughts.” JA 550. James testified that
he cried, felt depressed and humiliated and had “headaches, stomach pains, [and] verbal altercations with [his] wife.” JA
140. Caudle testified that “certain colleagues [ ] stare at me funny and some of them ... question your work ethic,” he was
“humiliated” and “[i]t was difficult trying to rest, you know, the more you think about it—you get headaches, but it was very
hard, though.” JA 515; see also JA 524 (Caudle admitting he never saw a doctor about headaches and lost sleep). Goins
testified he got “a lot of headaches,” “went to [his] doctor ... to make sure there wasn't nothing besides maybe just stress”
and that talking about the case “is like opening up an old wound.” JA 473–74; see also JA 489–90 (Goins admitting he
had headaches periodically for non-work reasons). Nevertheless, the issue of damages is not before us.
We fear that the denial of the District's mistrial motion in the jury's presence may have lessened the likelihood that the
jury took seriously either the district court's curative instruction or its general jury instruction. We therefore suggest that
it might have been better had it been done outside the jury's presence.
***
I said to [Justice Holmes]: “Well, sir, goodbye. Do justice!” He turned quite sharply and.... replied: “That is not my job.
My job is to play the game according to the rules.”
Judge Learned Hand
Michael Herz, “Do Justice! ”: Variations Of A Thrice-told Tale, 82 VA. L.REV. 111, 111 (1996) (quoting Learned Hand,
A Personal Confession, in THE SPIRIT OF LIBERTY 302, 306–07 (Irving Dilliard ed., 3d ed. 1960)).
End of Document
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
9
APPENDIX C
Rule 3.5 Impartiality And Decorum Of The Tribunal
A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;
(b) communicate ex parte with such a person during the proceeding unless authorized to do so by law
or court order;
(c) communicate with a juror or prospective juror after discharge of the jury if:
(1) the communication is prohibited by law or court order;
(2) the juror has made known to the lawyer a desire not to communicate; or
(3) the communication involves misrepresentation, coercion, duress or harassment; or
(d) engage in conduct intended to disrupt a tribunal.
DR 7-106
Trial Conduct.
(A)
A lawyer shall not disregard or advise his client to disregard a standing rule of a tribunal or a
ruling of a tribunal made in the course of a proceeding, but he may take appropriate steps in
good faith to test the validity of such rule or ruling.
(B)
In presenting a matter to a tribunal, a lawyer shall disclose:
(1) Legal authority in the controlling jurisdiction known to him to be directly adverse to
the position of his client and which is not disclosed by opposing counsel.
(2) Unless privileged or irrelevant, the identities of the clients he represents and of the
persons who employed him.
(C)
In appearing in his professional capacity before a tribunal, a lawyer shall not:
(1) State or allude to any matter that he has no reasonable basis to believe is relevant to the
case or that will not be supported by admissible evidence.
(2) Ask any question that he has no reasonable basis to believe is relevant to the case and
that is intended to degrade a witness or other person.
(3)
Assert his personal knowledge of the facts in issue, except when testifying as a witness.
(4) Assert his personal opinion as to the justness of a cause, as to the credibility of a
witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but he
may argue, on his analysis of the evidence, for any position or conclusion with respect to the matters
stated herein.
(5) Fail to comply with known local customs of courtesy or practice of the bar or a
particular tribunal without giving to opposing counsel timely notice of his intent not to comply.
(6)
Engage in undignified or discourteous conduct which is degrading to a tribunal.
(7)
Intentionally or habitually violate any established rule of procedure or of evidence.
APPENDIX D
Presenter Biographies
E. Martin Estrada
PARTNER, MUNGER, TOLLES & OLSEN LLP
LOS ANGELES, CALIFORNIA
E. Martin Estrada is a Los Angeles-based partner with Munger, Tolles
& Olson. His practice is focused on trials, complex litigation, internal
investigations, and appeals. He represents major corporations before
both federal and state courts in a variety of areas, including antitrust,
environmental regulation, securities, banking and competition law.
Mr. Estrada, a former federal prosecutor and supervisor in the U.S.
Attorney’s Office, is an experienced litigator who has tried over 20
federal criminal trials, argued a dozen appeals before the U.S. Court of
Appeals, and handled numerous legal and evidentiary hearings in
federal and state courts. He has received many awards and recognitions
for his work, including the California Lawyer Attorney of the Year
(CLAY) award in the area of criminal law, the U.S. Department of Justice’s prestigious
Director’s Award for Superior Performance, and the Federal Bar Association’s Younger Federal
Lawyer Award, awarded to the country’s top government attorneys. In 2016, Mr. Estrada was
named one of California’s Top 40 Lawyers Under 40 by the Daily Journal.
Merrick L. (“Rick”) Gross
SHAREHOLDER, CARLTON FIELDS JORDEN BURT, P.A.
MIAMI, FLORIDA
Rick Gross is a Miami-based partner with Carlton Fields. He has a
multifaceted commercial litigation practice, including aspects of banking,
real estate, creditors’ rights, bankruptcy, securities, and business torts
litigation. He has more than 26 years of legal experience, and has
litigated and tried cases in federal and state courts in Florida and
throughout the United States.
Mr. Gross is actively involved in the leadership for the American Bar
Association (ABA) Section of Litigation. He currently serves as a CoChair of the Section’s Membership and Marketing Committee, and
formerly served as a Division Director, Committee Co-Chair and
Meeting Co-Chair within the Section. In addition to his work with the
ABA, Mr. Gross has served as President of the Dade County Bar Association and as Chair of the
Constitutional Judiciary Committee and Business Law Section for the Florida Bar. He was
named as a top lawyer by The Best Lawyers in America, Florida Trend, Florida Super Lawyers,
and South Florida Legal Guide.
Rebecca C. Kibbe
PARTNER, K&L GATES LLP
MIAMI, FLORIDA
Rebecca Kibbe is a Miami-based partner with K&L Gates. She
focuses her practice on product liability and toxic tort defense,
specializing in asbestos defense. Ms. Kibbe has defended product
manufacturers and premise owners in products liability and general
liability matters.
As part of the firm’s Toxic Tort and Product Liability practices, Ms.
Kibbe serves as both national and local trial counsel. She oversees the
management and defense of defending thousands of toxic tort claims
pending throughout Florida through all phases of litigation on behalf of
manufacturers, and has represented Life Fitness a division of
Brunswick Corporation in products liability matters during the past three years throughout
Florida.
Ms. Kibbe has experience practicing general commercial litigation. She has represented both
plaintiffs and defendants in cases on a wide variety of claims including breach of contract, fraud,
defamation, and civil liability for cyberstalking.