Closing Argument

Closing Argument

Closing Argument

Original Cochise County Courthouse, Tombstone Courthouse Historical Park, Arizona, 1882. 

Objective:

The closing statement is the attorney’s final statement to the jury before deliberation begins. The attorney reiterates the important arguments, summarizes what the evidence has and has not shown, and requests jury to consider the evidence and apply the law in his or her client’s favor.

What to know before drafting a closing

  • What happened from your side’s point of view?
  • What is your theory of the case?
  • What are the key elements that have to be proved (by you or the other side)?
  • What do you anticipate the evidence will show?
  • What are the important facts your side’s witnesses will testify to?
  • What themes (words and phrases that convey emotions) do you want to emphasize?
  • Who has the burden of proof and what is it?
  • What do you want the jury to do?
  • How much time do you have? (usually 5 minutes)

Anatomy of a Closing Argument : The Basics

If you are the prosecution or plaintiff you must reserve time for rebuttal before you start your closing argument. Check your Mock Trial rules.

  1. An Introduction:
    • Attorney identifies themselves (or not)
      • Some attorneys begin with something like:“Your Honor, members of the jury, my name is (full name), representing the prosecution/defendant in this case.”
      • If they have already been introduced,  many attorneys just go right into their opening to save time, create drama, and make it look more like a real trial.
    • Using a hook to begin
      • The closing attorney has a lot more flexibility than the opening attorney
      • Closing is a persuasive argument
    • Briefly review what has to be proved (by you or the other side)
  2. Theory of the case
    • One or two sentences which tell the jury what the evidence has shown in the context of your theory of the case
    • “The evidence has shown by a preponderance of evidence that my client, Landry Lopez, was fired for reporting an illegal activity to his employer, the restaurant Buddies Burgers.”
    • Could be combined with a brief overview of what the evidence has shown using general statements or through a descriptive story
  3. A brief review of what you (or the other side) must prove or disprove
    • This is essentially the elements of the case
    • Do not delve too deep into legal terms or you will lose the jury’s attention
    • Talk about burden of proof 
  4. Tell the jury what the evidence has (and has not) shown and how the elements that need to be shown have (or have not) been proven
    • Focus on the key issues 
    • Identify witness testimony and exhibits supporting each issue
    • Tell a the client’s story 
    • Reinforce case themes
    • Help the jury tie things together in their mind 
    • The organizational structure will vary depending on the case
  5. A conclusion
    • Discuss the burden of proof  (some put this near the beginning)
      • “This is a civil case and Plaintiff Landry Lopez must prove his case by a preponderance of the evidence.” (Explain briefly and illustrate with hands what a preponderance of the evidence means)
    • Restate the theory of the case
      • “Oregon’s whistle blower law exists to protect, and encourage, employees to report illegal activity in the workplace. Mr. Lopez engaged in such whistle blower activity and was fired for doing so. “
    • Tell the jury what you want
      • “For these reasons, after you have heard all the evidence, at the end of this trial we will ask you to return a verdict in favor of Landry Lopez.”
      • “At the end of the trial the State of Oregon will ask you to find the Defendant guilty of . . .”
      • “Based on the evidence you will hear, at the end of the trial the Defendant will ask you to return a verdict of not guilty.”

Tracking the evidence at trial

  • Closing attorneys can only talk about what evidence came in at trial
    • Witness statements are not evidence (unless they were admitted to impeach a witness)
    • Exhibits are not evidence unless admitted
    • What an attorney said in their opening statement is not evidence
  • What the closing attorney anticipates the evidence will be may not happen at trial
    • Witnesses may forget key evidence
    • Attorneys conducting the direct and cross examinations may forget questions
    • Attorneys may forget the last step of offering an exhibit into evidence
    • Testimony and exhibits may be kept out the judge after the other side objects 
  • Consequently, it is important to track what evidence comes in during the trial
  • Ways to track evidence include:
    • Memory (fallible)
    • Notes (cumbersome and hard to access)
    • A master outline to checking key items off of as they come in (better)
    • Keeping a flow chart (better) 
  • Outlines:
    • Prepare in advance
    • List the key facts for each witness
    • List all exhibits
    • Do not go into too much detail (makes things hard to find)
    • Contain blank space for notes on actual witness testimony and quotes
    • Contain blank space for the opposition’s cross examination 
  • Flow Charts are:
    • Prepare in advance
    • List the key facts for each witness
    • List all exhibits
    • Do not go into too much detail (makes things hard to find)
    • Contain blank space for actual witness testimony and quotes
    • Contain blank space for the opposition’s cross examination 
    • Includes places to track other sides’s theory of the case and arguments in openings and closings

Going Deeper: Ways to Improve the Closing Argument:

The attorney doing the closing argument is being judged both on the substance of the closing and on their performance (public speaking ability).

How to improve the substance:

  1. Whether to use an outline or write out your closing:
    • Practicing attorneys differ on this
    • The choice may depend on
      • The attorney’s speaking style
      • The attorney’s comfort level with impromptu speaking 
      • The attorney’s ability to memorize a speech
      • Other roles the attorney might have in the case
    • In either case, the closing argument must be modified based on what evidence comes in
    • Using an outline
      • Certain parts can still  be memorized (intro, conclusion, etc)
      • Body of the argument can be easily modified as trial progresses 
      • Delivery style may seem often more natural 
      • More difficult to use rhetorical devices
      • More difficult to implement themes in the body of the speech 
    • Using a written speech
      • Most of the speech is memorized
      • More difficult to modify based on the what happens at trial
      • Delivery style is often more formal
      • Easier to use planned out rhetorical devices
      • Easier to implement themes in the body of the speech 
  2. How many other roles should the closing attorney have?
    • The closing attorney  must track what evidence comes in 
    • Having other roles makes it more difficult for them to do this
    • It is especially difficult for a prosecution/plaintiff attorney to do cross examination and a closing because this is when they should be putting together their thoughts for closing argument
  3. Keep revising the outline of your your closing argument  until it is exactly as you want it
    • Closing arguments go through many edits and revisions 
    • Seek out the input from others
    • Try things out – if they don’t work, don’t use them
  4. Read the opening statement 
    1. Is it consistent with the theory of the case used in closing?
  5. Read the direct and cross examinations
    1. Are they consistent with the theory of the case used in closing?
    2. Has evidence been left out that is needed for closing argument? 
  6. Consider a hook to begin your closing
    • A hook is a sentence or short paragraph which serves as an attention grabbing device
    • See section on advance public speaking techniques
  7. Keep telling your client’s story 
    • Use descriptive, emotional content 
    • Use active voice
    • Use language that reinforces your themes
  8. Use past tense when talking about what the evidence has shown 
    • Proper phrasing includes statements like:
      • “The evidence has shown that . . .
      • “The facts have shown that …”
    • Use a few of these lines but don’t overdo it. 
    • You can just as easily say :
      •  In her testimony Landry Lopez told you . . . “
  9. Everything you say should have a purpose
    • Don’t ask questions (it allows the jury to come up with answers you might not want)
    • Do not waste your time on unimportant things 
  10. State the facts affirmatively – do not negate the other side’s facts or position
    • The more you repeat something the more it is remembered and believed
    • If you say the evidence will show that “Mrs. Smith did not run the red light” the ‘not’ is lost.
    • The jury remembers the phrase “ran the red light”
    • Instead say the evidence will show “Mrs. Smith came to a complete stop at the signal.”
    • The jury remembers “came to a complete stop at the signal.”
  11. Make strategic decisions on how to attack and challenge the other side’s witnesses
    • Depends on the witness
      • Are they a sympathetic witness who just got it wrong?
      • Are they deliberately lying or lacking in credibility?
    • Be professional with opposing counsel – attack  the facts and witness, not the other attorney
  12. Personalize your side’s witnesses
    • Personalize your witnesses by using their names
    • Depersonalize the opposition’s witnesses with language like ‘Defendant”  or  “Plaintiff”
  13. The Prosecution in a criminal case is the Government
    • Don’t be shy to take on this role
    • Refer to yourself  “The State of ___”  not just the “prosecution.”
  14. Talk about facts that are not in dispute (look at the stipulations)
    • “There are certain facts in this case that are not in dispute . . . “
    • “The defense/prosecution have agreed . . .”
    • “The parties have agreed that . . .” 

How to improve the performance:

  1. Practice
  2. Find your focus, energy and commitment
  3. Memorize your overall outline and the portions of the closing that you can
    • Memorize  movement, inflections, and gestures  to the extent you can
    • If notes are needed
      • Use them sparingly
      • Use a legal pad or clip board so they do not flop around 
  4. Talk directly to the jury 
    • Don’t be afraid of the jury
    • Look them in the eye
    • Educate them about the case
    • Move closer (5-10 ft.) but not too close
    • Be natural so as to keep their attention
  5. Strive to appear honest and helpful
    • Do not be overly aggressive in your argument style
    • Being overly aggressive can make one less believable
    • Help the jury – assist them in evaluating the evidence in a persuasive way
    • Do not shout except to make a particular point
    • Use rhetorical devices to persuade
  6. Use conversational language that is engaging
    • Let the type of case dictate your style and tone
    • Example: A prosecutor might want to be more forceful whereas a defendant might want to evoke sympathy
  7. Use legal terminology sparingly
  8. Use body posture and movement deliberately and consciously
    • Maintain upright body posture (do not slouch)
    • Keep shoulders back to show confidence
    • Stay balanced
    • If you move make the movement coincide with transitions between points
    • Try not to change position more than 7 times in 5 minutes
    • Try not to fidget or have unnecessary gestures or body movements
  9. Use gestures 
    • Use gestures to create interest and drama
    • Gestures include the give, the show, the tell, and signposting
    • Don’t shy away from pointing to individuals in the court – the type of point may vary
      • If you are the prosecution and point to the defendant it will be using a harder accusatory “tell” gesture with a pointed finger
      • If you are pointing to your own witnesses it will be using an inviting open handed “give” gesture  
  10. Act professional and confident – even if you are nervous

Resources

Preparation Sheet

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Closing Argument Preparation Sheet

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How to do a Closing Argument (Professor Rose)

Opening Statement and Closing Argument, Judge David Barker

How to do a Closing at Mock Trial – Defense

Jerry Spence Closing Argument for Defense in a Criminal Case