How a Litigation Consultant Can Help You With Your Closing Argument
Usually, the vast majority of the time that a litigation consultant will spend with a trial team focuses on jury selection, mock trials, witness preparation, opening statement and expert testimony. A litigation consultant will usually spend less than ten percent of his or her time in supporting a trial team in its development of the closing argument. This is very curious, because closing arguments are a critical part of any trial. They are the last words jurors will hear out of your mouth, and they are the punctuation mark on your case and the story you have developed.
This short-change in time is probably because by this point in litigation, the arguments are fairly well formed and many of the litigation graphics used at closing argument will be variations of those used in opening statements or during the case in chief. We've written about preparing good opening statements and the importance of storytelling before, but closing arguments deserve their own discussion.
The closing argument differs from the opening statement in several key ways:
1. Argument is allowed and encouraged
2. Evidence can be shown (again) to judge and jury
3. Demonstrative evidence can include conclusions or argument in titles
4. A complete story can be told
5. Credibility of witnesses can be discussed
6. The facts can be easily applied to the law
A good litigation consultant will tell you to be very careful not to create an appealable issue by referring to facts not in evidence or offering your opinion of the merits of the case, opinion about opposing counsel, or offering opinion about the credibility of a witness or violating the golden rule. If opposing counsel makes such a statement, an objection should be made -- or it may be considered waived. Of course, any violation of the golden rule (i.e. asking jurors' to step into the plaintiff's shoes) must be avoided, or a mistrial may be quickly declared.
Closing statements are ripe for summation litigation graphics that recount all the wonderful proof of your case presented over the course of trial. New trial graphics should be prepared to illustrate how overwhelming your proof was and how credible and comprehensive your expert witnesses were. Closing is an excellent time to put some dollar signs and damages amounts in front of the jurors’ eyes to drive home what they should do in the jury room. Likewise, prepare a closing graphic of the verdict form they’re about to get and show them exactly how you want it filled out. You want the jurors walking out of the courtroom with rich memories of your best points so they can argue your case when they hit deliberations.
Below are 15 videos and tips that a good litigation consultant will agree are helpful to any litigator's preparation and delivery of a winning closing statement.
- Learn from the Greats: The ABA put on a great program in 2009 featuring Robert S. Bennett, David Boies, Willie Gary, Robert Morvillo and Judge Denise Cote. [a non-flash version is here and an iTunes version is here]
- Avoid Going 90 in a School Zone: Appellate Attorney Kim Boldt reminds us of the importance of preserving error; closing arguments often go awry when lawyers are on a roll - what she smartly describes as, "before you know it, you're going 90 in a school zone.”
- Start Strong, End Strong: In this summary portion of a 12-part video series, Judge Daniel Bay Gibbons offers a good overview of the key points of a closing. He reminds us to start strong, end strong, and avoid classic unethical behavior during closing. The other 11 parts are also available on YouTube.
- If It Does Not Fit . . . Johnny Cochran's classic, “if it does not fit, you must acquit” closing. It is a good lesson in arming your strong jurors with the language they'll need to argue during deliberations.
- Memorize Your Closing Statement: Gerry Spence offers a sample closing. He has a lot of presence, but anyone's passion will come through better when an opening or closing is not being read.
- Practice - A Little at a Time: Frequent NITA faculty member Marsha Hunter makes the case that you should practice in small chunks.
- Use metaphor in closing statements: We recently created a directory of metaphors and analogies for lawyers.
- Use your opponent’s materials against them. In this clip, litigator Allen Foster (assisted by an A2L trial technician using TrialDirector) makes a closing statement during a World Bank arbitration and begins by using his opponent's materials in his presentation. The contrast between his presentation and his opponent's (at the end of the clip) is noteworthy particularly since Mr. Foster and his client prevailed.
- Use an illustrated closing argument notebook. See how District Attorney David Walgren uses a notebook with his demonstrative exhibits. He shares the law and talks about how the facts apply to it, in two hours in this well-delivered closing in the Michael Jackson doctor case.
- Do something memorable: Another well-delivered closing argument by plaintiff's attorney Mark Lanier in a Vioxx case. He does a good job of diffusing the “CSI Effect” and discussing the concept of preponderance of the evidence and calls Merck's executives “Desperate Executives.”
- Don’t read your closing: Yes, we've said this twice, because it is that important.
- Ask for what you want: Mock juries usually begin analyzing damages the way they were presented by the side they most agree with. Give your jury a baseline from which to work for damages. If the right answer is $0, then say so and show why. If the right answer is $5 billion, then say so, and show them the math at a high level that shows why this is true. Behavioral psychologist Susan Weinschenk reminds us why asking is so critical.
- Tell Great Stories: See A2L's article on being a better storyteller.
- Give a Great Opening: See A2L's article on opening statements.
- Revisit lessons learned in the mock trial: If you conducted a mock trial, lessons were learned. Many of these lessons were likely applied during opening, but don't forget to do the same during closing arguments. Here is an A2L article on mock trials as well.
Whether you work with a litigation consultant or not, we encourage you to put emphasis on the closing statement. While it is not as important as your opening, it is your best opportunity to help the judge or jury organize the way they will analyze the case.
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