Trial Attorney Blog
We thought it would be interesting for our readers to understand how experienced attorneys prepare and deliver effective Closing Arguments to juries in serious injury cases. What we have decided to do is to blog about this very interesting subject in a series of brief articles over the next several days. What follows, in fact, is a portion of a presentation delivered by one of our attorneys at a continuuing legal education seminar for the Georgia Bar.
We begin as follows:
The most gifted Trial lawyers among us are highly successful orators. We use the term gifted because such innate ability is not common among all Trial lawyers. Those who can make a jury cry and stir their emotions with natural ease and innate ability are the few among us with this gift of oratory. These are the “show horses” of our profession. For the rest of us, we have to learn to be work horses in order to be successful at giving a winning summation. If we follow sound fundamentals, just like a football team, we can still deliver a winning summation even if we are not particularly gifted. The key is good, old fashioned, hard work. If one prepares properly and uses sound fundamentals, there is no reason one cannot be successful. What follows therefore are practical suggestions on how to go about giving a sound closing argument that is likely to yield a successful result.
A. PREPARE, PREPARE, PREPARE
It is said that when Winston Churchill had to give a fifteen minute speech, he would engage in six to eight hours of preparation beforehand. When he delivered his fifteen minute address, he did so eloquently and, it appeared to those observing, effortlessly. The truth is that it was not effortless at all, but instead the result of painstaking effort in organizing thoughts and succinctly summarizing them, well in advance of the planned delivery. Churchill prepared very hard for his so called “effortless and brilliant speech,” and thus, even though he appeared to be speaking extemporaneously, what the audience was hearing was the result of extremely hard work and intense preparation.
It is no different for the successful trial attorney. If you want to give a good closing argument, you must be extremely prepared. While this is axiomatic for those of us who have done a good deal of trial work, the point cannot be overemphasized. One should not rely upon the inspiration of the moment. There may not be any.
We have all heard that summation begins the moment you take a client’s case. This is quite true. In my personal practice, when I set up my file in any given case, I set up a “Closing Argument” section at the very beginning of the case. As I work on the case through the discovery phase, I am constantly putting written ideas into my “Closing Argument” file. If I think of something in the middle of the night or during the week, during a deposition or otherwise, I memorialize my thoughts on paper and put my thoughts into the “Closing Argument” file. I do this throughout the pendency of the case, all the way up to formal preparation of a Closing Argument Outline. If the case is not settled, by the time I get into intense trial preparation, I usually have a fairly thick file of closing argument thoughts. Thus, when I sit down to prepare an outline for my closing argument, I usually have 30 to 50 “points” of pithy statements and observations that I have been making over the many months that I have been working on the case. This gives me a headstart in determining which points of argument are the most persuasive, which I should use at the beginning of my argument, and which I might wish to save for rebuttal.
In short, I am always preparing for my summation and never wait until the last minute to do so. You should do the same.
B. STAY ON MESSAGE
This is one thing that we have learned from our Republican friends and from experts like Karl Rove. It is a very effective form of communication to stay on message and repeat consistently a unified theme. In the opening statement, a theme of the case or theory of the case should have been developed.
The trial lawyer should harken back to his opening statement during summation and use some of the same language in discussing the issues. This so-called “echo effect” is very important in driving home a point. The Republicans are masters at staying on message and repeating their message constantly and consistently to their audience.
By repeating a central theme and using the same language in doing so, one is more likely to achieve the intended results of the “echo effect,” that is, implanting in the jury’s mind the message one wishes to communicate.
C. BE CONFIDENT, BE SINCERE, AND BE YOURSELF
Another fundamental of a sound closing argument is being as natural as you can be. You should never try to imitate someone else’s style or manner. You can only be yourself. The jury is always watching you very closely. Are you sincere? Are you believable? Are you trustworthy? Everything you do must communicate to the jury that you believe to the core of your being in the justness of your client’s cause. If you subliminally communicate such a belief in everything that you do in the presence of the jury, you will have a much greater chance of winning your case. J. D. Lee, a famous trial lawyer from Knoxville, Tennessee, made this observation:
“We have all seen great minds that have been wasted by not putting their knowledge into action. It is true with the trial of a lawsuit. The power of the attorney is expressed in how the attorney conducts him or herself in the courtroom. He or she is the one that brings in the big exhibits, the pictures, the drawings, moves about the courtroom with confidence and clearly shows why he or she is entitled to a verdict. This same professional advocate must display trustworthiness and integrity. The attorney does this by dress, by posture, by demeanor to court and jury and at times just by tone of voice.”
Most experts in the field believe that the manner of the delivery of a closing argument is just as important, if not more important, than the content of the summation. If a jury believes that counsel is honest and forthright and that the attorney is entirely confident in the justness of his client’s cause, the jury is more likely to side with that lawyer.
Thus, it is imperative that one be sincere at all times and that one function within his or her own personality. Attempts at mimicking other attorneys are ill advised. It is impossible to communicate effectively with a jury if one is trying to be anyone other than himself.
D. DISCUSS THE CASE WITH THE JURY, DO NOT GIVE THEM A SPEECH
In order to communicate with sincerity, there must be a body language and eye contact that flows naturally when discussing a case with the jury. The word discussion is important because one should never read to a jury or give them a speech. It is difficult to develop a personal rapport with the jury if one is speaking at someone as opposed to talking with them. While there should be an element of formality to the summation consistent with the seriousness of the cause of action, nonetheless, the summation should be conversational in tone, as if the lawyer is having a serious discussion with the jury trying to convince them of the justness of his cause.
I recommend that the trial attorney prepare a detailed outline of his comments, not a script. If you read a speech the jury will be turned off. If you discuss the case with the jury, they will listen more attentively. When you speak to someone close to you about an important matter, you do not give them a speech, you discuss the issue with them with great earnestness and sincerity. The same is true when you make a closing argument to a jury. You do not speak at them, you talk with them.
More to follow in a later entry.