February 10, 2011
BUSINESS INSIGHTS FOR LAW DEPARTMENT LEADERS
INSIDECOUNSEL.COM
L I TIGA T ION
C ounsel C ommentary
Closing Argument — Make it
Memorable and Credible
How to deliver an effective closing statement.
by david j . bradford and craig c . martin
David J. Bradford
Craig C. Martin
Much folklore and myth surround our
perceptions of closing arguments. So
many times you will hear attorneys say
that, “I’ll tie that together in closing,”
or “I’m saving that point for closing,”
and so many times, you will hear lawyers puff about how someone is such a
great closer. Sometimes it’s even true,
but most of the time those puffing statements are just that – puffing statements.
The closing statement should not be a
surprise. The closing should emphasize
and echo the themes that the trial team
has developed throughout the trial – in
voir dire, in opening, in direct examinations and in cross-examinations. As
the thread that weaves together your
closing, the theme should be a short,
memorable statement that incorporates
key facts, suggests why your client wins
and appeals to the jurors’ values and
common sense. With the theme interlaced, the closing statement should tell
the story of the case. Portray the facts
that are likely to persuade the trier of
fact (jury, judge or arbitrator) that your
side is right and concede the facts that
are inconsistent and place those facts in
an understandable context. Your closing
argument should provide the jurors with
the tools to argue your case in the deliberation room.
The closing statement should be done
well before the trial even begins. Indeed,
the closing statement should be an integral part of the trial plan, so that the trial
team understands which witness, document or other evidence will be needed
to establish the points to be made in
closing. The closing should echo the
opening. While the opening may be
about framing the story, predicting the
evidence and establishing credibility, the
closing should be about explaining how
and why the evidence demands a particular result. The closing statement, of
course, should tell the story of the case.
When organizing your closing statement, your goal is to find the most
effective way to explain what is important and what is not. In some cases, this
may mean organizing by topic, in others,
a chronological presentation may work
best. Your strongest points should be
presented first and last, as this is when
the jurors will be most attentive. Be
careful not to end on a defensive note,
even during rebuttal. During rebuttal,
Reprinted with permission from InsideCounsel.
you should be careful to maintain your
organizational structure rather than
adopting your adversary’s. Leave the
jurors ready to walk into the deliberation
room remembering and understanding
your story.
Regardless of how you organize your
closing statement, tell the jury how you
are going to proceed and, at the end, remind them what you covered. Giving
the jurors a roadmap will make it easier
for them to follow your argument and
remember your main points. Consider
using a chart to highlight your points
or to show how the parties and witnesses are connected. Visual aids can
help to drive your points into the jurors’
memory. If you were a juror, would you
remember the document discussed two
weeks ago? You should be careful, however, not to overwhelm the jury. You
will be most effective if you present
only the most persuasive visual aids and
evidence – and if you move your adversary’s exhibits outside of the jury’s view
when it is your turn to speak.
When delivering your closing statement, follow the rules. You do not want
to lose the jury’s confidence by mak-
February 10, 2011
L I TIGA T ION
ing improper arguments or stating too
many objections. Know the time restrictions relevant to your closing statement,
whether there are limits on the use of
visual aids, and whether you will be allowed to step away from the podium or
counsel’s table. If you refer to jury instructions, then make sure that those are
the exact instructions that will be given.
Being familiar with the courtroom rules
and logistics, such as where to find the
light switch, will help you look comfortable in front of the jury.
Finally, tell your client’s story using
your personality. Although many articles provide this advice, it is critical and
therefore worth repeating. If you have a
straight-forward presentation style, then
don’t try to be a comedian or preach a
sermon. You may undermine your cred-
ibility if you look uncomfortable or look
like you are acting. An outline can help
you avoid missing important points. But
do not bore the jurors by reading from
a script, in a monotonous voice, as you
stand like a statue behind the podium.
Use your body language and gestures;
use vocal inflection and pacing; use
your memory! You should be connecting with the jurors, making eye contact
and further explaining your points when
they look confused. Practice ahead of
time in front of a mirror, your colleagues
or a video camera. Better yet, practice
in front of all three. Some practitioners
recommend that you practice skipping
between issues in your outline, so that
you are flexible with the sequence and
comfortable with each topic. Your argument will be most powerful when you
Reprinted with permission from InsideCounsel.
are comfortable, engaging and credible.
As with the opening statement, you
need to be a truth sayer during your
closing argument. Think about it: the
judge and the jury have witnessed the
evidence, heard the stories from the
witnesses themselves and reviewed the
critical documents. As the lawyer, you
must demonstrate that you understand
and appreciate the evidence, and when
you say what the evidence means, you
draw reasoned and reasonable inferences from it. The impression you want
to leave with the jury is that you understood and presented things fairly. That
will go a long way to achieving a result
you like.
Craig C. Martin and David J.
Bradford are Co-Chairs of Jenner &
Block’s Litigation Department.