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Four Keys to a Successful Closing Argument

FOUR KEYS TO A SUCCESSFUL CLOSING ARGUMENT [1]

Roy L. Comer, Esq.

1.ARM THE JURORS WITH LAW AND FACTS

Some people say that the jurors have already made up their minds by the time closing argument arrives. Therefore, if you haven’t already “argued" your case through the jury selection, opening statement, direct examination and cross examination, it is probably too late to save the case with your “best" argument during closing argument.

Nonetheless, closing argument is the easiest part of the trial, isn’t it? After all, you don’t run the risk of overstating the case (as is true during opening statement). Closing argument is the opportunity to simply summarize what has already been said by the witnesses and been shown the jury by the exhibits. Thus, some people say that closing argument is overrated.

Other people say that the importance of closing must not be underestimated. Even if the jurors have made up their minds, you do not want to give them a reason to change against your client due to your dull and uninspiring performance. A close case can be won or lost with the last persuasive words of passion and logic.

Your goal is the remind them of the evidence and law that makes their deliberations easy. What was it about the case that inspired you to take it to trial in the first place?

You can do this effectively by showing the jury the specific elements of your claim or defense by highlighting excerpts of the actual jury instructions that apply to your case, and remind them of the facts—testimony or documents—that satisfy each of those elements. The judge had given his/her imprimatur to the law. Now you get to argue it as it applies to the facts and explain why the only verdict that delivers substantial justice is a verdict in your client’s favor.

2.MAKE A LIST OF IMPORTANT TESTIMONY DURING TRIAL

Your winning closing argument will not rehash the testimony of every witness called. Instead, it will focus on the important testimony, and to the extent you are able, you will use the exact words—vivid descriptions or damaging concessions—that support your claim or defense. Your closing argument will be bolstered by the actual evidence, not simply your flowing rhetoric. If you’ve chosen wisely, these phrases will have stuck in the minds of the jurors, and as you repeat them, their minds will go where you have wanted them to go from day one—convinced of the justice of your cause.

3.COMPLETE THE “PROMISES" OF YOUR OPENING

Unless something has gone horribly wrong, your winning closing argument will capitalize on the ideas stated during your opening statement. Jurors tend to remember what was said early in the case, and a failure to emphasize your indications of what the evidence will prove reveals a glaring weakness in your case.

4.STAY ON POINT AND POSITIVE

You have done your job; let the jury do theirs. Resist the desire to spell it all out for them again. Trust the job you did and their common sense. If you represent the plaintiff, don’t fall for the trap of trying to answer the defendant’s challenges or rhetorical questions during your rebuttal—stay “on message" and weave your response to those challenges (if warranted) in the body of your rebuttal. Don’t squander the last word—capitalize by repeating your most persuasive and powerful argument to which the defense will have no response.

[1] This article liberally borrows from Read, D. Shane, Winning At Trial(NITA 2007) and probably contains ideas from of the Resources listed herein, too numerous to mention.

Additional resources provided by the author

RESOURCES

COMER’S LIST OF ADDITIONAL RESOURCES
• Ball, David Ball on Damages, The Essential Update, (NITA)
• Ball & Keenan, Reptile (Trial Guides)
• Bergman, Trial Advocacy in a Nutshell (Thomson/West)
• Cotchett, California Courtroom Evidence, (LexisNexis)
• Fine, The How-To-Win Trial Manual (5th Ed. Juris Publishing)
• Friedman & Malone, Rules of the Road, (Trial Guides)
• Friedman, Polarizing the Case (Trial Guides)
• Gitchel, Trial Advocacy Basics (NITA)
• Hegland, Trial and Clinical Skills in a Nutshell (Thomson/West)
• Hermann, The Curmudgeon’s Guide to Practicing Law, (ABA)
• Imwinkelried & Leach, California Evidentiary Foundations (Lexis/Nexis)
• Jeans, Litigation-3 Volumes (Michie Co.)
• Judicial Council of California Civil Jury Instructions (Thomson)
• Lisnek, Courtroom Power (PESI Law Publications)
• Lubet, Modern Trial Advocacy (2nd Ed., NITA)
• Lubet, Expert Testimony (NITA)
• Lucas & McCoy, The Winning Edge (Lawyers & Judges Publishing)
• MacCarthy on Cross Examination (ABA)
• Mauet, Trial Techniques (5th Ed. Aspen Law Publishers)
• McElhaney, McElhaney’s Litigation (ABA)
• McElhaney, McElhaney’s Trial Notebook (ABA)
• Morrill, Trial Diplomacy (Court Practice Institute)
• Perdue, Who Will Speak for the Victim (State Bar of Texas)
• Read, D. Shane, Winning at Trial (NITA)
• Sandler & Archibald, Model Witness Examinations (2d. Ed., ABA)
• Stern, Trying Cases to Win Series (Wiley Law Publications)

ENCYCLOPEDIC REFERENCES
• California Practice Guide, Civil Trials and Evidence, (Thomson)
• California Practice Guide, Civil Procedure Before Trial, (Thomson)L

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