Chapter 9 CLOSING ARGUMENT

1 Chapter 9 CLOSING ARGUMENT INTRODUCTIONC losing ARGUMENT comes at the end of the trial. It is your final opportunityto address the jury. What should you try to accomplish? Many of you probablyview CLOSING ARGUMENT as an opportunity to sway the jury and win your casewith your powers of eloquence and persuasion. Much of the literature rein-forces the view that CLOSING ARGUMENT is directed at those jurors who arethinking of voting against you if you can only reveal to them the errorsof their ways, you will convince them to change their minds and vote for you think about it, however, this scenario is improbable. After hearingthe evidence, most jurors will already be inclined toward one side or the other;truly undecided jurors are rare. If a majority of jurors are inclined to voteagainst you based on the evidence, you are unlikely to persuade themotherwise, and you will probably lose the case.

2 This should not come as anygreat shock to you if your evidence is weak, you ought to lose the case. Itis unrealistic to think that any amount of clever ARGUMENT can turn a loserinto a winner. On the other hand, if a majority of jurors are inclined to votein your favor, based on the evidence, then you ought to win the case. Yourclosing ARGUMENT can solidify and organize your supporters, arm them withthe strongest arguments in your arsenal, help them find your opponent sweaknesses, and energize them to do battle in the jury room. This is themodern view of the role of CLOSING ARGUMENT :A lawsuit, like a chain, is only as strong as its weakest link. Contraryto popular myth, lawsuits are not won, although on rare occasions theymay be lost, as a result of a summation.

3 In fact, lawsuits are notusually won or lost during any one phase of the trial. They aregenerally won or lost on the evidence coupled with the effectivenessof the presentation by the lawyer from the moment he walks into thecourthouse until the moment the jury returns a CLOSING ARGUMENT is not for the purpose of recruiting new troops, but forarming those already on your side. You are the general who provides a battleplan to your troops, who will fight for your side in the jury room war. Youshould try to accomplish six goals:cReiterate your theory of the case and make sure the jurors under-stand it. The importance of having a clear, simple theory cannotbe overstated. It provides direction to your jurors. Whether you havepreviously done so or not, in CLOSING you must commit yourself toa single theory.

4 Alternative theories merely divide your forces intotwo groups that may start fighting with each LAWRENCE J. SMITH, THE ART OF ADVOCACY SUMMATION (2001). 373 0001 VERSACOMP ( ) COMPOSE2 ( )07/31/02 (12:51) The Trial Process: Law, Tactics and EthicsJ:\VRS\DAT\03106\ --- --- POST1 1/1 cEmphasize favorable evidence, but don t waste time with a detailedrehashing of every detail as if the jurors were too stupid to remem-ber your opponent s specific ways for the jury to resolve conflicts in your favor both affirmative reasons why your position is right, and negativereasons why your opponent s position is the law and show how the evidence satisfies all legalrequirements for a verdict in your importantly, reduce your case to a good story, including plot,motives, adventure, battles between good and evil, human weak-nesses, temptation, drama, and a moral at the you change a juror s mind?

5 Social scientists who study persuasion andhuman behavior think not. An ARGUMENT against a juror s tentative decisionmay only strengthen that juror s belief as he or she thinks up counter- arguments . The more you try, the more jurors may feel they are being manipu-lated or pressured to change their views, the more they will tend to react tothis threat by rejecting the message. See RICHARD E. PETTY & JOHN , COMMUNICATION AND PERSUASION 126 30 (1986); SHARON & JACK W. BREHM, PSYCHOLOGICAL REACTANCE: A THEORY OF FREE-DOM AND CONTROL (1981) (detailed explanation of reactance theory). Anyonewho has ever tried to persuade a four-year-old child to change his or her mindwill understand the problem. EXAMPLE OF A CLOSING ARGUMENTThe following example should give you a feeling for the scope and structureof a CLOSING ARGUMENT .

6 It illustrates most of the points raised in later it please the court; members of the have asked my client to leave the courtroom, as I had asked himnot to be here during the medical testimony. We listened to the doctorsexplaining what a dismal future he has. He is going to be in a wheel-chair, unable to walk more than a few steps because of his paralysis,a boy with no arms, only grotesque mechanical claws, for the rest ofhis life. That is a fact, and we have to accept it and base our decisionson it. Ben is only fourteen years old, and still has the hope thedream of doctors inventing bionic arms that look natural, the dreamof being able to run again. I did not want to be responsible for shatter-ing that dream by making him sit here and listen to the brutal facts:He has been sentenced to life imprisonment in a wheelchair for a crimehe didn t Some parts of the ARGUMENT come from an ARGUMENT given by James E.

7 Hullverson, reprintedin LAWRENCE SMITH, ART OF ADVOCACY SUMMATION to (1978). 374 CLOSING ARGUMENTCH. 9 0002 VERSACOMP ( ) COMPOSE2 ( )07/31/02 (12:51) The Trial Process: Law, Tactics and EthicsJ:\VRS\DAT\03106\ --- --- POST20 2/2 There has been a lot of medical and other testimony, and we wantto thank you for being attentive. The burden on you is a grave one toarrive at a fair and just verdict under all the circumstances. I will takea few minutes now to review the case as we see are three main points to this lawsuit. First, we are not dealingwith an ordinary product, we re dealing with electrical power carry electricity silent and invisible, but it can blow your armsoff or kill you in a split second. Electricity is a dangerous, ultrahazar-dous force, and the defendant Electric Company should have takenprecautions to prevent deadly currents from causing harm.

8 They didnot, so you should hold them responsible. Second, we are not dealingwith an adult who was injured, but with a boy. Ben was twelve yearsold when he was crippled. Without any warning sign, he did not havethe experience to know the small black wire was dangerous, so he isnot contributorily negligent for doing what all young boys do playingin a field near his home. And the third factor. Ben s injuries are perma-nent. He has been given a life sentence, without any possibility ofparole or time off for good behavior for which you should awardhim enough money to last him that do these factors fit together? As we look at the overall lawsuit,what are the issues? Basically, we re talking about two things: Is thedefendant Electric Company liable for Ben s injuries, and if so, whatamount of money can compensate Ben for all he has suffered andcontinues to suffer?

9 First, let s talk about whether the Electric Company is liable. Thisboils down to two questions: Was this tragedy foreseeable, and wasit preventable? The judge will read you an instruction on the law thatsays:Your verdict must be in favor of the plaintiff, Ben Ice, if you findthree things: First, that there was an uninsulated high voltageelectric wire on the utility pole, and no warning sign of any , that the Wabash Valley Electric Company knew or shouldhave known that young children were likely to climb the utilitypole. Third, that the dangerous condition could have been elimi-nated without placing an undue burden on the Electric is no question about the first element. You saw these photo-graphs of the utility pole [attorney places two photographs on easels].Witnesses pointed out the uninsulated high voltage line [attorney pointsto photograph], and the guy wire [attorney points to photograph], andyou can clearly see for yourselves that there is no insulator on the guywire and no warning sign of any kind.

10 The parties are not in disputeabout whether a dangerous condition dispute centers on the second and third elements. Should theelectric company have known that the children were likely to climbthe pole, and could the danger have been eliminated easily? In otherwords, if it was foreseeable that twelve-year-old boys like Ben wouldbe tempted to climb the utility pole, then the law requires the ElectricCompany to try to prevent it and protect them from harm. OF A CLOSING ARGUMENT375 0003 VERSACOMP ( ) COMPOSE2 ( )07/31/02 (12:51) The Trial Process: Law, Tactics and EthicsJ:\VRS\DAT\03106\ --- --- POST35 How do we know it was foreseeable that children will climb utilitypoles? You can look to the common experiences of all of us when wewere young.