by Kenneth P. Nolan

The spotlight is on. The audience is hushed, anxious. The evidence is in. The witnesses (who never listen and always disappoint) are gone. Now it's time to orate, to persuade, to prove to judge and jury that you have been correct for all the many past weeks.

It's closing argument, time to break the bounds of evidentiary and black-robed restraint, time to jump up and down, rant and rave. Time to make sense of the intellectual and emotional roller coaster the jury has been riding. Time to make the complex simple, time to convince the jury that you are right, that they should decide for you, if not your client.

Sure, closing arguments are fun. This is the reason you entered law school-at last, you can dance around the courtroom and perform; you can be Gregory Peck as Atticus Finch. The judge has finally shut up, your opposing counsel's whiny objections will be limited, and some of the jurors may even be awake-you hope.

But, despite their appeal, closings are not easy. All the facts and evidence must be gathered and placed under the blanket of the law. The subtleties of proof must be explained. the jurors reminded of weeks-old testimony, and important evidence highlighted. The argument must be clear, concise. and persuasive -and, if you fail, you lose. In fact, the freedom and emotion of closing argument can be a trap. Though you can let go, there must be an underlying discipline and attention to detail.

Therefore, whether from fear or ego, you should consider the following points when you seek a captivating closing and victory-or at least when you want to give yourself a chance of success:

1. Prepare. Do not accept the old maxim that the jury has decided the case after opening statement. Start preparation on your closing before trial. Develop themes that you will introduce in jury selection and repeat throughout trial. Remind the jury in closing of these themes and how you have proven them.

Keep notes during trial. Have a separate part of your trial notebook marked Closings. If your adversary makes a promise in his opening statement that he does not keep, note it and mark it for the Closing section. If a witness makes an admission that helps you, mark it with a "C:' At the end of each trial day, compile all the "C" material into the Closings section. When testimony is complete, you can then cull what is important and tailor your argument. All the minor inconsistencies and admissions then will be readily accessible. Use them to bludgeon your enemy. But this will only work if you keep notes. During trial, your mind is racing: Where's the witness? Where did I put that important case I Should I ask this or that? If you do not write these things down, you will forget. So-review all evidence and testimony. List the points you must cover in your outline.

You may be asking yourself "Why all this paper?" Why the compulsive behavior? After all, the greats never used paper; they spoke for hours in wonderful, clear paragraphs. As we say in Brooklyn, "Fuhgeddaboud it." If you were that good. you'd be doing it; you wouldn't be reading this. In fact, if you were so smart, you would have gone to medical school. Keep your outline on the desk, lectern. even in your hand. Refer to it when you speak. Put your ego in your pocket. That is better than forgetting an essential argument because you didn't want your young associate to believe that you are not the second coming of Edward Bennett Williams.

2. Have the Pre-Charge Conference Before Closings. You must know what the judge will charge the jury before you close. You must know the exact wording of the Interrogatories given the jury You must mold your argument to the law and the jury interrogatories. Use the same definitions in your closing. that the judge will give the jury in the charge. Make it seem that when the judge gives the charge, she is echoing and agreeing with your closing.

If the contested issue in the case is proximate cause, emphasize this in your closing. Suppose the judge intends to charge proximate cause as: "An act or omission is a proximate cause of an injury if it was a substantial factor in bringing about the injury, that is, if it had such an effect in producing the injury that reasonable people would regard it as a cause of the injury." You should tell the jury that the defendant's actions were "a proximate cause" of the injuries, that the actions were "a substantial factor," that "reasonable people" such as you jurors would agree that those actions caused Jeanne Gambino's fractured leg. Repeat in your closing the words "proximate cause, substantial factor, reasonable people"-the very phrases used by the judge (who is the only person the jurors trust):

3. Prepare Written Requests to Charge. Submit these to the judge, and mark them as an exhibit. Make a record on the law to be charged. If the judge does not charge what you want, object. When in doubt, object. Object in the conference, object in writing, object in court on the record. Don't be afraid to object, even if the judge screams, "Mr. Nolan, you have already objected three times. You've made your record. Now, sit down and shut up." Object again-politely, of course.

You do not want to lose on appeal because you failed to object to the charge. Browse any volume of appellate decisions; you will find many cases where the appellate judges took the easy road and dismissed the appeal because of counsel's failure to object-in the right way or at the right time. It is not enough to object. Put on the record exactly what you think should be charged. Insist that the judge make a record of both your objections and of what you want charged. Be persistent, and do not be intimidated.

4. Practice. Your outline must be written-but not read. Your argument must be developed-but not only in your mind and on paper. You must listen to how the argument sounds. Don't mouth the words. Say them aloud. Try the argument in front of your mirror, in your car. What you think, in the silent recesses of your mind, that you will say and what you actually say are often totally different. What reads well doesn't necessarily sound good.

Once you have a bit of confidence, practice in front of an audience-your spouse or ordinary people like your jurors. Practice before someone who will be honest and has common sense. This generally excludes your partners-they may be too arrogant and ignorant of the real world (in other words, too much lawyers) to know good from bad. In New York, it's the subway test. If they ride the R train to work, they live in the real world and recognize lawyer jive. Bounce your closing off R-train people. They are like jurors.

5. Use Language that the Jury Understands. Toss out the legalese-the subsequents, prior to's and other words heard only in law offices or saloons that charge $4 for a glass of white wine. The average juror watches Roseanne. reads the tabloids, roots for da Bears, and has more common sense than the judge. Speak the language they understand. It is impossible to overestimate how much the sealed environment of college, law school, and years of practice has removed you from how most people talk. Even phrases you think are obvious will not communicate. Some years ago, a celebrated trial lawyer used the term "red herring" a number of times in his closing. After the verdict, interviews revealed that none of the jurors understood the term. Some wanted to know what evidence had concerned fish-and what a colored fish had to do with the case. What is obvious to you, may not be to the jurors.

If you have any doubt whether the jury will understand a word or phrase, practice before someone who did not spend three boring years in law school. Do not use your secretary Part of her job is lying to you; how many times has she said that you look like you lost weight? Get ordinary people, leading ordinary lives. If three understand the phrase without explanation, then you can use it.

Justice Joseph Levine, head of the medical malpractice unit in the trial court in Brooklyn, New York, tells of another judge who instructed his jury that, if they had a question during deliberations, they were to write it on a piece of paper and have the foreperson sign it. Later the note was returned to him with more than one signature. When questioned, the jurors responded, "Well, you said four persons should sign it." Use only words that USA Today would use in its headlines. You may have more education, but they don't teach street smarts at Yale.

6. Be Aggressive. Be Positive. Tell the jury what you have proved. Put your adversary on the defensive. If you begin defending your client, then you have lost. Use the active voice. "We proved that Dr. Loewinger was at fault in the following ways: . ." Or "We told you that we would prove that Mrs. Cole was not at fault and that's what we did. For example: . . . ." Even if your case has weaknesses, do not start by admitting them. Begin strong and positive. You will have plenty of time to make concessions.

You must be confident in summarizing the evidence and the facts. Repeat the key elements of your case. Even though the jury has heard the facts over and over again, go through the essential elements of your case and show how the evidence has proven each. Refer to the testimony, documents, and law that support your argument.

Emphasize the tangible. Wave the contract or the letter in front of the jury. Read such items, enlarge them for all to see. "I told you that I would prove that the Newbee Corporation agreed to purchase ... Exhibit 25 in evidence states as follows ... Not only does this written contract, signed by the corporation's president, Suzanne Fisher, prove the agreement was in effect, but you heard President Fisher admit--right there, on the witness stand-that the contract was in effect. Remember when I asked her ... and she replied ... That is from page 427 of the trial transcript."

Emphasize all testimony crucial to your case. Use admissions, "Even defendant's own expert, the guy they paid $4,000 to come here to court, admitted that Bill Bayer suffers pain when he walks. Even defendant's expert admitted .... Each admission you trumpet is a Joe Frazier left hook to the body. Hammer away until the head falls. Read them, sing them, parade them about. Admissions, like any weaknesses, are to be exploited. Now is not the time to waffle or straddle, to be a Bill Clinton who didn't inhale. You do not have to shout or be sarcastic, but be aggressive, and keep those fists moving.

Another thing: If at all possible, forget subtlety, detail, and nuance. Drop all the niceties that you put in briefs and that delight law school professors. Probably jurors won't understand. If they do, it will take so much of their attention that they will be confused or forget about the rest. Stick with clear, simple ideas. If closing argument were music, it would be a rock-and-roll record with a 4/4 beat you can dance to. It would not be a Bach cantata-as lovely as that might be in some other setting.

7. Use Demonstrative Evidence. Words are sacred in our profession. Like priests, we use them to preach to client or court, providing advice we tend to believe has an almost spiritual origin. We listen to the confessions of our clients and colleagues whose sins we can resolve (with the help of a friendly jury), if not forgive. It is all words.

But this is a visual society, nurtured by Beaver Cleaver, Archie Bunker, and Dr. Hawkeye Pierce. News, sports, tragedy, death are seen, not read. To ignore this reality, to cling to mere words in closing argument is to tempt boredom if not defeat. Pictures, graphs, and film overshadow words until you're Mario Cuomo. Use them. Enlarge the key admission in the trial transcript and read along with the jury. Show them that photo of the accident scene one more time. Intersperse your talk with a model of the head to remind the jurors of the reality of the injury.

Today, words are ephemeral, things are real. It may be sad, but perception is often reality. Use demonstrative evidence to teach, to emphasize, to keep the jury's attention. It may not be necessary, but like my Irish grandmother's chicken soup, it doesn't hurt.

8. Remind the Jury How You Kept the Promise You Made in Opening. Credibility is paramount, both for witnesses and for you. In opening, you will tell the jury what you intend to prove, what the evidence will show. Now closing-is the time to remind the jury that you have kept your promise; show them that you have been honest and did not exaggerate. Be specific: "In opening, I told you that we would prove that Mr. Gutman is permanently, profoundly injured, that his mental capacity has been affected. We have proven this-from his testimony, his wife's, his co-worker's, Tom Bauer, his treating doctors, Drs. Malloy, Schneider, and Russo. . ."

It is also the time to remind the jury-if there is a basis for it-that your adversary failed to keep her promise. "You know jurors, when Mrs. Clancy made her opening statement, she promised to prove to you three things. I remember because I wrote them down: Just five days ago, she said she would prove (1) that Mr. Cook suffered no out-of-pocket loss of wages and medical bills; (2) that he made a remarkable recovery, and (3) his two shoulder surgeries had nothing to do with his accident. Now I waited-you probably did too during all the testimony and documents, waiting to team if Mrs. Clancy would keep her word to you. She did not. Even Mrs. Clancy's own expert orthopedist, Dr. Schwartz. agreed that Mr. Cook's two shoulder surgeries were the result of the incident, that the car crash was a proximate cause of those surgeries as well as the pain . . . ."

You simply must keep your bond with the jury. Lawyers are regarded as highly as cockroaches on the kitchen floor. Do not reinforce this belief by lying to the jury. If your adversary does so, ram it down his throat-in a nice way, of course.

9. Be Emotional. Or Not. A jury must be entertained. During trial, your ability to do this is limited. The witnesses' testimony is dry and convoluted. Nothing comes out in a logical order. The room is hot and the acoustics are terrible. The lawyers bicker or confer mysteriously with the judge. The jury dreams of being anywhere but these cramped, uncomfortable seats with the worst people in the world-lawyers. But closings are-or can be-entertainment. If jurors fall asleep during your closing arguments, give up. Change professions. Become the accountant that your mother always wanted. An entertaining closing, however, is not always simple. You do now have the freedom to raise your voice, to walk about, to slam your fist on the table, to call the plaintiff someone "who thinks this lawsuit is Lotto." But be careful. Don't force the theatrics.

You must be yourself. If you are emotional and love to scream and yell, then do it. If you are calculating and controlled, then that is your closing. Any decent trial lawyer is both. Learn from others. Watch Court TV or the masters, but do not attempt to be someone else. You are yourself, for good or bad. You will be a competent, intelligent advocate. Like everyone else. Admit it, no one will ever write a book about you. So what if you never move a juror to tears? You will be successful if you work hard, know your file, and be yourself. Of course, it does help if you have a good case. But when in doubt, use your instincts.

10. Look the Jurors in Their Eyes and Ask Them to Give You What You Want. Standing cold at a podium reading a closing is not good form. You should have developed a rapport and sense of trust with the jury by the time you get to closing. If you haven't, it's probably too late. To win, you must convince them. If you cannot look each juror in the eye when you ask for $10 million, your verdict will reflect that.

The jurors may know what your goal is during trial. But you must not assume that they do. Tell them exactly what you want; ask them to return a verdict finding no negligence on the part of your client. Or to return a verdict finding negligence against each defendant and awarding $2.3 million. If you don't tell them what you want, how will they know? Be clear and specific. If allowed, blow up the jury interrogatories and complete them with the jury. Fill in how you want them answered. Do not hesitate, and do not be shy.

11. Thank Them and Sit Down. Good closing arguments are important, of course, but when it is time to stop, do so.

Litigation Magazine
Summer 1994, Volume 20 Number 4

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