Preparing And Delivering The Defense Closing Argument

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					      Preparing And Delivering
    The Defense Closing Argument
                                              W. Ray Persons

            The closing argument is your final address to the jury—and your best opportunity
                   to persuade them to find for your client and show them how to do it.

PREPARATION OF THE closing argument be-                     to present in summation. The closing argument
gins as soon as you start working on a case.                is the crowning point in the trial, and if done
From the very beginning, you start formulating              properly, it can be any advocate’s finest hour.
ideas for structuring a persuasive defense. You
refine that process throughout the pleading and             THE OBJECTIVE: PERSUASION • To deliver
discovery phases of the case, and during the en-            a forceful closing argument you have to start by
tire trial you prepare the jury for what you plan           considering its objectives:

W. Ray Persons is a partner with King & Spalding LLP, in Atlanta. This article is based on a paper the author pre-
pared for a seminar sponsored by the ABA’s Tort and Insurance Practice Section.

56     The Practical Litigator                                                                May 2005

• First, it is your opportunity to explain the sig-     cate speaks on behalf of her client for purposes
nificance of the evidence, to offer reasons in          of ennobling, instructing, rallying, leading and,
support of conclusions and inferences. It is also       above all, persuading;
the time to discuss credibility, the law, and the       • Focus. The advocate aims directly at the tar-
right verdict. The Litigation Manual, 455 (ABA,         get and takes the jury, step by step, all the way
2d ed., 1989);                                          through to climax. John Stuart Mill defined the
• Second, an effective closing argument pre-            art of the orator: “Everything important to his
sents a positive theory of the case, explicitly, log-   purpose was said at the exact moment when he
ically, and not defensively. The theory should be       had brought the minds of his audience into the
simple and understandable, and should incor-            state most fitted to receive it”;
porate the same theories that have been em-             • Phrase. Successful advocates are phrase-mak-
ployed throughout the trial;                            ers. They enliven their arguments to help
• Third, the closing argument must not only             achieve conviction. They employ simple, mem-
engage the jurors intellectually, it must have          orable phrases such as “if it doesn’t fit, you
emotional appeal as well;                               must acquit,” “safety above profit,” and “do the
• Fourth, in the closing argument, you must             right thing”;
tell the jury why it should find in favor of the        • Pulse. The structure upon which the argu-
defendant.                                              ment is constructed needs life. Good courtroom
                                                        speeches have a beat, a changing rhythm, a
Attributes Of Persuasion                                sense of movement that gets the audience mov-
   Like all courtroom speech, the closing argu-         ing with the speaker. Here is an example from
ment has as its primary aim that of persuasion.         Demosthenes: “When they brought suits
To be persuasive, the closing argument must             against me—when they menaced me—when
have the following attributes:                          they promised—when they set these miscreants
• Structure. Forensic speech has structure—or           like wild beasts upon me ...”; and
as William Safire would call it, “thematic anato-       • Delivery. The words, ideas, propositions, and
my.” An example of this simple organizing               themes are all effectively delivered in a manner
principle is the old adage “tell ‘em what you’re        that is appealing to listeners. The advocate puts
going to tell ‘em, tell ‘em, then tell ‘em what you     his audience at ease and has contact with them.
told ‘em.” Structure is as essential to speech as a     His belief in his case and his cause become con-
skeleton is to the human body. It is on the struc-      tagious to the jury.
tural framework that speakers hang thoughts             See Bertram G. Warshaw, The Trial Masters 148
and ideas;                                              (Prentice-Hall, 1984).
• Theme. A critical ingredient. In the end, the
advocate must answer in a word or sentence the          PREPARATION OF THE DEFENSE CLOS-
question of the person who couldn’t be there:           ING ARGUMENT • A closing argument is not
“What was this case about?” Sometimes called            a spontaneous outpouring of emotion and off-
the “proposition,” it must be perceived and un-         the-cuff eloquence. A good closing argument re-
derstood from the outset;                               quires careful and thorough planning. The suc-
• Purpose. The advocate speaks for good rea-            cessful argument requires that you have a well-
son. She does not speak to sound off, feed her          thought-out theory of the case that leads to a
ego, or flatter or intimidate a crowd. The advo-        verdict in your favor. This theory should be de-
                                                                                 Closing Argument       57

veloped early, after you have investigated the          to make sure that you have all the materials
facts but before you make any other decisions           ready—notes, exhibits, charts, and demonstra-
about how to try the case.                              tive aids.
                                                           The closing argument must do certain things
The Outline                                             to be effective. Among these are the following:
   The most effective way to prepare your clos-         • Present a logical structure. Whether it is chron-
ing is to develop a detailed outline or a full          ological, by issue, by witness or in some other
statement of your argument. It forces you to            order, the closing must have a structure that
think through each argument and each problem            makes sense;
in advance. As defense counsel, you must also
                                                        • Present the theory of the case. The closing argu-
anticipate the plaintiff’s various theories and
                                                        ment should present the theory of the defen-
positions. You must predict the most persuasive
                                                        dant’s case in an explicit way and demonstrate
and compelling argument the plaintiff’s lawyer
                                                        why your theory most logically incorporates
could present and develop a method for coun-
                                                        and explains both the contested and the undis-
tering it. When you are satisfied with your ar-
                                                        puted facts adduced at trial;
gument, reduce it to a simple outline rather than
run the risk of reading a narrative to the jury.        • Argue the facts. Dazzling oratory will not
This outline is not the final version of what you       carry the day. Your must rely on facts to per-
will actually deliver to the jury. It will be refined   suade the jury. This involves more than a simple
based on developments at trial.                         recitation of the testimony. It requires analysis.
                                                        Juries decide cases on the basis of impressions
Development During Trial                                —what they think the truth is—based on the
    Most of your closing argument can be pre-           way the parties have presented the evidence.
pared before trial. However, there always will          Effective trial lawyers selectively pick and em-
be a few unanticipated events that occur during         phasize the parts of, and inferences from, the
trial. A good working outline can be supple-            evidence which, when presented as an integrat-
mented by a few notes as the trial progresses.          ed whole, creates an impression that convinces
Statements made and concerns expressed by ju-           the jury that their side should win;
rors during voir dire can provide clues to points       • Use exhibits and demonstratives. Your outline
that should be emphasized in argument. Any              should contain references to key exhibits which
overstatements or exaggerations made by                 corroborate and highlight the main points of
plaintiff’s counsel in her opening statement can        your argument. The same holds true for dem-
be noted. The demeanor of a witness can be              onstrative aids such as blow-ups, diagrams, an-
highlighted. The exact words used by a witness          imations and posters;
can be written down so they can be quoted ver-          • Weave jury instructions into the argument.
batim. If any evidence is unexpectedly exclud-          Closing arguments which selectively utilize in-
ed, such can be noted so that it is not inadver-        structions have a greater impact on the jury. By
tently referred to in closing. And of course, the       suggesting that the court’s instructions of law,
same applies to requests to charge that the court       as well as the facts, support your side, a doubly
refuses to give.                                        effective argument can be crafted. Argue the
  The final preparation of your closing argu-           facts and then argue that they support a partic-
ment can be done either at a recess on the last         ular legal principle. The key to this approach is
day of trial or the night before. This is the time      to follow the factual argument with a recitation

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