Closing Arguments: Trial Techniques for Serious Injury Cases

We continue here with our previous discussion about how experienced trial counsel prepares and delivers closing arguments before juries in serious injury cases. See prior entries of 3/13 and 3/15/07. We continue as follows:
You must close your summation with confidence and with an ending appropriate to the tone of the case that will have the desired impact. Once you have concluded, sit down with an air of confidence that you have clearly won your case.
In every winning summation there is both the logical and rational aspect of the presentation. Where the facts are placed in perspective by counsel, the jury is furnished with ammunition to advocate your side of the case in the jury room. But there is also the emotional side. Counsel must convince the juries in the justness of his client’s cause and want them to believe that when they return a verdict in favor of the plaintiff that they will be promoting the ends of justice. Through a sincere, honest and forthright approach to the case, counsel can best appeal to the jury’s emotional sense of right and wrong at the conclusion of his or her remarks. Obviously, a tone has to be set throughout the closing argument which is consistent with the facts of the case. When counsel concludes his remarks, however, it is necessary that the jury viscerally feel that the plaintiff is entitled to a verdict and that it would be right to return a verdict in favor of the plaintiff. Thus, the structure of a closing argument, while inherently logical, must allow for an appropriate expression of emotion consistent with the facts in dispute.
It is recommended that counsel memorize both the beginning and ending of his summation. While it is not recommended necessarily that counsel memorize the remarks to such an extent that they are delivered in a wooden fashion, nonetheless, a memorized beginning and ending allows counsel a sufficiently dramatic beginning and ending to drive home the justness of his case. It also prevents a flat ending to the case and maximizes the ability to have the intended impact on the jury’s collective psyche.
F. USE THE RULES GOVERNING THE CASE
In giving a closing argument, it is essential that counsel use the legal language of the case. The court will be instructing the jury on various principles of law that could be absolutely crucial in the jury’s determination of the facts. Thus, when discussing a case with the jury, counsel should use the language of the case. Counsel should use and explain terms such as “preponderance of the evidence,” “proximate cause,” “breach of duty,” “failure to exercise ordinary care,” “negligence,” and “damages.” If, for example, a central issue in the case is whether the plaintiff was contributorily negligent, that term should be used (exactly as will be charged by the Court) and explained as are other terms of art.
Many cases have unique questions of law that ultimately will control a jury verdict. It is absolutely essential that counsel use the language of the case from the beginning of the case through its end. Hopefully, the key language of the case was used in Opening Statement. Utilizing “the echo effect” during summation, counsel can use the same language of the case during summation in convincing the jury that their view of the evidence should be such that the issues are resolved favorably to the client.
G. USE DEMONSTRATIVES AND TRIAL EXHIBITS
Every good trial lawyer knows that a jury remembers best that which they both hear and see. Accordingly, demonstrative exhibits should always be used during closing argument. Sometimes demonstrative exhibits are necessary in order to emphasize a point about liability. Sometimes they are used to emphasize principles of law.
Effective demonstratives can also be used to discuss damages. A good closing argument might use demonstratives in all of these areas. In short, a well prepared demonstrative exhibit will assist counsel in making his point while at the same time assisting the jury in remembering it.
Of course, in addition to using demonstrative exhibits, actual trial exhibits should be shown to the jury just as a demonstrative exhibit would be shown. If a particular exhibit is important, the exhibit should be referred to by number and shown to the jury and its importance to the case should be discussed. An actual trial exhibit (blown up) can be used as a demonstrative exhibit in this fashion where counsel uses the exhibit to demonstrate to the jury why it is that the evidence supports his client’s contentions on any contested issue in the case.
H. REMEMBER WHY YOU ARE THERE
In a hotly contested liability case, it is often easy for counsel to forget that the reason they are there is to achieve a favorable monetary verdict for their client. It is tempting sometimes to spend far too much time discussing liability thereby leaving counsel with little or no time to discuss damages. The reason we are in Court is to try to get a verdict to compensate our client for the damages they have sustained. Obviously, we have to discuss liability. However, we should never discuss liability exclusively and should always reserve a sufficient amount of our time in summation to devote to the subject of damages.
If the case is a close one and it is necessary that counsel discuss liability extensively, I would suggest that counsel discuss liability at least seventy percent (70%) of the time and reserve thirty percent (30%) of his time for damages. If counsel believes that liability is fairly strong, counsel might wish to divide his arguments between fifty-five and sixty-five percent (55-65%) liability and thirty-five to forty-five percent (35-45%) damages. If liability is strong, the counsel might wish to reverse this percentage and focus more on the damage equation to the case. Whatever the issues involved, however, counsel must be organized enough to allocate a sufficient percentage of his time to discuss the damage question such that the jury knows what it is counsel is asking for and why it is that the damage position of the plaintiff is both fair and just.
When discussing money with the jury, I would recommend that counsel always give the jury a range of suggested verdicts. If the jury is not given a range of suggested verdicts, then they have to come up with their own range and they may not pick a range that you will like. By giving a jury a range as to what would be appropriate, this gives the jury something to rationally discuss in the jury room.
For example, in a wrongful death case, if a young person is killed and liability is clear, and the individual had a substantial wage record, by using the Annuity Mortality Table, you can help guide the jury toward a fair range of lost wage reimbursement based on the Annuity Mortality Table and the types of wages the decedent was earning at the time of his or her death. Further, when discussing the non-economic portion of the case, counsel can talk about how much the individual’s life might be worth on an annual basis. Is life worth $25,000.00 per year? Is it $50,000.00 per year? Is it $100,000.00 per year? By showing the jury what the verdict range would be based upon its answer to that question, the jury can then begin to focus on $25,000.00 per year times a 50-year life expectancy or 50 – $100,000.00 per year times a 50-year life expectancy.
In short, I think a jury should be given a range to work with so that they have some basis for discussing damages when they enter the jury room. If you do not give them a suggested range for the type of money that you think would be a fair and just result, you many end up with a result that is less than favorable for your client.
I. SPEAK FROM THE HEART
As stated above, it is most important that counsel appear to be completely sincere in everything he says and does. The best way to do this is to speak from the heart and tell the jury exactly what you think. If the jury senses that counsel is speaking candidly in a forthright manner about the issues in the case, the jury is more likely to have confidence in what is being said.
If you speak from the heart, by definition, you are being yourself. If you speak from the heart, by definition, you are being sincere. If you speak from the heart, a jury will recognize that you are doing so. This can only help your client because the jury is more likely to side with the attorney who strikes them as being the most fair, the most believable and the most genuine. Make sure that this person is you by speaking from the heart.
J. DON’T VIOLATE FUNDAMENTAL RULES
As discussed above, counsel should utilize the structure in delivering his/her summation. If counsel is disorganized in his approach, the jurors will not follow the arguments made and subliminally will believe that counsel is not entitled to a verdict. Again this is a fundamental rule of a winning summation.
Although the fundamental dos are sometimes easy to recognize, there are some fundamental don’ts as well. For example, do not select an issue that an intelligent juror will recognize as being disingenuous or phoney. Never misstate or overstate the evidence. Do not attack a lawyer personally. Do not attack a party or a witness in the case if the attack is not warranted. Do not talk too fast. Do not oversell your case. Do not use big “lawyerly” words. Avoid undue repetition, this includes talking too long. Do not mumble. Do not criticize the Court. Do not personalize your adversary, and instead refer to the “defendant” or the “corporation,” while referring to your client by his first or last name.
Do not rely too much upon the inspiration of the moment. Do not mimic others. Do not demean or criticize unfairly. Strike hard but no foul blows. Finally, do not let your opponent outwork you. As stated, if you are not a show horse, you must be a work horse and practice good fundamentals if you are to be successful.
K. WHEN APPROPRIATE, REMIND THE JURIES OF THEIR OATHS
In the typical negligence case, it is not necessary that a jury be reminded that they have taken an oath to set aside any prejudice or biases they have and to render a verdict solely on the evidence and the law presented to them. However, there are cases of a more controversial nature where it might be necessary for counsel to consider reminding the jury of its oath. Examples would include medical malpractice cases and other controversial cases such as high speed police pursuits.
We all know about the propaganda campaign waged by the medical lobby and the Chamber of Commerce relative to caps on malpractice awards. As many observers have already noted, we do not need tort reform in Georgia because it has already occurred. The juries have been polluted by the massive propaganda campaign being waged against our clients. Thus, when a jury steps in the jury box, they may be fearful that if they return a verdict for a plaintiff, that they may be putting a doctor out of business or causing other doctors to leave this state. They may also be fearful that they will be participating in a “jackpot justice, lottery situation” where the plaintiff is made rich, as his attorney, while the poor doctor is sent home to pay the judgment himself. While we know that this propaganda is not true, nonetheless, juries have been so exposed to it that they may actually believe some of these falsehoods.
Accordingly, it might be necessary for counsel to advise the jury during summation that they promised during voir dire that they would follow the law and the evidence and that they should not disregard their oaths for fear of the collateral consequences of a just verdict.
L. BE AN AMBASSADOR.
As we all know, trial lawyers are under assault by the business community. We are accused of being sleazy, money hungry ambulance chasers. I need not further discuss this nationwide propaganda campaign, but suffice it to say, our public image has been and continues to be at risk. Accordingly, it is imperative that as trial attorneys we conduct ourselves as ambassadors for justice when we appear in a courtroom.
The best way to get a favorable result in any case is to exude confidence and to practice the highest standards of professionalism. This is a fundamental rule of trial practice. The plaintiff’s lawyer cannot afford to be viewed with skepticism by the jury. The jury must trust the trial lawyer and his sincerity.
Accordingly, it is absolutely vital that counsel exude professionalism in everything he does. The manner of one’s dress, the extent of his preparation, the manner in which he conducts himself, his competence and his demeanor all reflect on our profession as well as the case before the jury.