How to Get What You Want out of Closing Arguments
Since early childhood, I have been a Braves fan. The last few years have been a pretty tough go, which has helped to weed out the bandwagon fans who rallied behind the team during their run of 14 consecutive NL East division titles (1991-2005). Despite the glory having run out, the Braves have still had some really good players come through the club in the last dozen years. Possibly none better than Craig Kimbrel, who got called up in 2010 and was the Braves’ closer from 2011-2014 (when he was traded). During those four years, Kimbrel was automatic. When he came into the game in the 9th Inning, it was over. He was nearly untouchable. He averaged 45+ saves per year, had an ERA of less than 1.50, and a WHIP that hovered around 0.90. He was everything a team wanted in a closing pitcher.
Being the closing pitcher in a baseball game is hard. More than the physical skills, it takes mental acuity, emotional steadfastness, and supreme confidence (and awesome, fear-inducing walkout music). Being good at delivering closing arguments at trial requires many of the same qualities.
What do you want out of closing arguments?
You may not know what you want out of closing arguments in each individual case until the close of the evidence. I was in a trucking case a couple of years ago in which the testimony about liability changed significantly during the course of the trial from what our expectations had been going in, so we had to pivot and approach our closing from an entirely different perspective. But as a strategy, what you want out of closing arguments is to communicate your case in a persuasive and informative fashion that continues to tell the story that you’ve been constructing for the jury since voir dire.
Here’s what some of the folks at Lawyer Slack had to say when I polled them:
Family Lawyer: I want to put my client in best light possible.
Canadian Government Lawyer: I want to fairly explain the statutory and case law to get the judge to zero in on the exact issue and ensure the judge and the (generally unrepresented) other side understand the Crown’s case and why it should be successful.
General Practitioner (doing mostly bench trials): To summarize the case in the strongest way to the judge using the evidence at trial. Making it clear why my client is the one in the right with specific examples.
Self-Professed “Black Hat PI Lawyer”: $$$
Criminal Prosecutor: Persuade them that my version of events makes the most sense (and that means defendant is guilty).
How do you get what you want in closing arguments?
Knowing what you want and knowing how to get it can be two very different things. Your closing argument is your time to convince the jury that you’re right. Use whatever is at your disposal. There’s an idiom among lawyers:
When the law is in your favor, pound the law. When the facts are in your favor, pounds the facts. When you don’t have either the law or the facts, just pound the table.
And it’s not far removed from the truth. Here are some thoughts from Lawyer Slack about how to get what you want in closing arguments.
Family Lawyer: Get that by emphasizing the law and relevant facts.
Canadian Government Lawyer: Draft my closing arguments first to focus my other preparation, revise it to accord with the evidence (often by labeling the uncertain parts of the evidence), and be as organized as possible throughout trial so that I can tell the story properly when it comes time to argue.
General Practitioner (doing mostly bench trials): Good organization throughout trial allowing me to cherry pick the best examples from the evidence.
Self-Professed “Black Hat PI Lawyer”: Emotional manipulation.
Criminal Prosecutor: Use the jury instructions, try not to get hung up in the details, common sense, tie together testimony of my wits, pull quotes from the defendant that support my point.
How do you know if your closing argument has been successful?
It would be too simplistic to point to the jury’s verdict or damages award and suggest it tells you whether or not your closing argument registered with the jury. Here’s a recent example. We were involved in a week-long, contentious jury trial. One of the partners delivered a very effective closing argument. Then plaintiff’s counsel got up for his rebuttal and asked the jury for a 7-digit jury award. We knew it was coming, but it was still hard to hear. Knowing there’s always a possibility the jury could agree with their evaluation of the plaintiff’s claimed injuries and damages. When the jury came back, they entered an award barely into six figures. That’s still a lot of money, but we were pleased. But here’s the real kicker – the following week, the plaintiff’s lawyer called my partner and bitterly griped, “Your closing cost me $250,000.” So that’s one way to know your closing argument was effective.
Photo by Tambako The Jaguar.