Dr. Noelle Nelson

Closing the Deal: A successful close reinforces the theme that has been developed throughout the trial (originally published in The Daily Journal, Verdicts & Settlements)

A winning close starts with a powerful opening. The more accurate and potent the case theme is conveyed during opening arguments, the easier it is to create a persuasive closing argument.

A compelling closing argument comes full circle: in the opening, the lawyer says, "I will show X." Through direct and cross-examinations, the lawyer shows X, and in closing, the lawyer tells how X was shown. If these three objectives are accomplished, the inescapable conclusion should be a verdict in the lawyer's favor.

This is one reason why studies show that jurors rarely change their mind from their original impression after opening statements. If closing argument is the logical outgrowth and conclusion of what was promised in opening statement, the jurors' opinion will be the same at both points in the trial. Keeping this in mind, four key elements should be left with the jurors at the time of closing.

1) A thorough review of the case

Review who did what to whom and why. Lawyers should take care to organize references to witnesses, testimony and evidence so that they fit neatly into their interpretation of the facts. By doing so, lawyers fulfill their original promise to the jury, "and we will show that…" which both strengthens the power of the lawyer's arguments and enhances credibility. The purpose of this review is to arm the jurors already favorably disposed to the lawyer with facts, explanations and arguments (reasons) with which they can convince those jurors who are unsure or not already favorably disposed.

Logic is extremely important in a closing argument. Although jurors make their decisions at an emotional level, they must be able to back those decisions at a logical level. Closing argument is the best opportunity to provide the jurors with that logic.

Attorneys must go over important testimony in sufficient detail. Jurors like to be reminded of important points. Instead of tediously reading the transcript of what a witness said, however, lawyers should tell the jury what a statement meant and place it in the context of the case "story." Verbatim repetition of a witness's words should be saved for some truly sterling revelation. It is helpful to jurors to remind them of how a witness looked, or behaved, when the witness testified. References to testimony and evidence should be organized so they are easy to follow and fit into the case story.

In reviewing why events happened as they did in the case, motive must be explained in reference to the overarching case theme. The lawyer's explanation of the motive must be plausible, and fit in with the current norms and mores of the community. If the jurors can't understand or appreciate the motive, they won't accept it.

Testimony can be most effectively presented closing on a chart. Charts can "bottom line" the evidence, which provide easy-to-understand correlations between testimony and evidence and demonstrate the logic leading to the lawyer's conclusion. In addition to these benefits, visual aids require that the jurors participate in the process of the lawyer's argument. Showing the jurors a visual requires more involvement than if the jurors used the more passive act of hearing. The more involved the jurors are in the decision-making process, the more they will hold to that decision.

2) Solid reasons to vote in the lawyer's favor

Attorneys must give the jurors a reason why they should return the verdict desired. It is unwise to leave the specifics of that verdict up to the jurors' imaginations. The more explicitly attorneys tell the jurors what they want, the better the chances of getting it.

Answering the following questions will help lawyers generate strong motivators for the jurors: Why is returning a verdict in the client's favor desirable? How does it insure that the jurors "did the right thing"? How does it further the cause of America, peace, mankind, our way of life, for example? Does it make the world a better place? What will be the effect or consequences of the decision? The jurors need to feel good when leaving the courthouse; they need to feel that they were on the side of justice. The impact of their decision as advancing a worthy cause should be spelled out for them.

Attorneys should not waste time explaining to jurors why opposing counsel should lose. Jurors find it distasteful for lawyers to attack opposing counsel. However, pointing out inconsistencies in testimony, showing that opposing counsel failed to deliver what was promised, and outlining the flaws in opposing counsel's logic are all very helpful to jurors. Weaknesses in the attorney's own case should be admitted so they can be appropriately and briefly defused. The attorney's main focus should be the positive reasons why the client's cause is just.

3) Elucidation and integration of jury instructions

Jurors polled in focus groups and jury debriefings point out again and again that one of their greatest stumbling blocks at arriving to fair and just decisions is jurors' lack of understanding of the jury instructions and how those instructions should apply to the case. Lawyers must help jurors make sense of the arcane and obscure language used, and furthermore help the jurors understand how these instructions fit with the lawyers' case.

For example, take the common instruction regarding "negligence." Jurors often interpret the term as meaning deliberately, intentionally failing to do something one should have done. This is, after all, the most common use of the term in our everyday parlance. Unless clearly instructed that the intent to inflict harm is not a prerequisite of a finding for the plaintiff, the jurors, for example, might absolve a physician's incompetence because "the doctor didn't mean to hurt the patient."

In addition, even when jurors understand the words themselves, they can fail to see how the instruction applies to a lawyer's case. What is obvious to lawyers is often cryptic to jurors. Lawyers should seek throughout trial to relate testimony and evidence to the key terms of jury instructions, and remind jurors at closing of how they accomplished this. A "bottom-line"-type chart will easily reinforce the connection.

It is a truism that the lawyer who provides the most clarity and logical explanation of a situation is the lawyer who will prevail. Although this is important throughout the trial, it is critical at during closing arguments. Improper handling of jury instructions can damage an otherwise wonderfully prepared and presented case.

Helping jurors understand the instructions also enhances lawyer credibility. When lawyers speak of the seriousness and importance of jury instructions, they are respecting the authority of the judge. The lawyers become respected by association. Jury studies demonstrate that juries are significantly impressed by closing arguments that integrate and analyze the evidence according to the judge's instructions.

4) Emotional impact and rapport

Emotions are what drive decision-making. Lawyers must leave the jurors with a sense of their profound conviction of the absolute rightness of the clients' cause. Emotional tone should be appropriate to the issues at hand; melodrama is unnecessary and ineffective. Vivid, descriptive words and examples are more effective to access emotions than a tone of emotional excess. Analogies are excellent in a closing argument as long as the lawyers has evaluated them ahead of time to be sure opposing counsel won't turn them against the lawyers' cause.

Closing argument represents the lawyer's last opportunity to create rapport with the jurors. Feelings of similarity and familiarity can be reaffirmed, especially at the beginning of the closing argument. The lawyer who has taken notes throughout the trial of unusual or interesting occurrences during trial can now speak about some of those shared experiences during the close.

The use of a natural, conversational tone with appropriate changes in pitches is best. Lawyers who remember they are the jurors' guide through the complexities of a trial will stay with them throughout this very important moment in the case, and not distance themselves by suddenly turning "preacher" on them. Avoid thanking the jurors in unctuous terms. Lawyers who are sincere and state their appreciation in a brief, simple manner will find the most favor with jurors.

Closing arguments show how the facts of the case point to only one inescapable conclusion--one that happens to coincide with the attorney's case theme. Like the conclusion of a good mystery novel, however, the attorney's closing argument will only be effective and believable if the attorney has been able to establish a strong case theme at opening and reinforce the theme with compelling facts introduced throughout trial.

© 2006 The Daily Journal Corporation. All rights reserved.


© 2016 Noelle Nelson All Rights Reserved