As discussed above, one should not rely upon the inspiration of the moment to deliver a closing argument. A winning summation is usually the result of meticulous, painstaking preparation done well in advance of the actual delivery of the remarks. In order to insure that such preparation is not wasted, obviously, it is necessary that counsel utilize a structure in preparing his/her outline of the legal and factual issues counsel wishes to discuss with the jury.
The following elements should be present in your remarks: 1) an interesting introduction to the summation; 2) a discussion of what happened; 3) a discussion of the law and the burden of proof and why; 4) a discussion of damages; and 5) an appropriate peroration or conclusion.
In short, the closing argument should not be rambling but should be structured with a logical flow to it and with a content appropriate to the facts and legal issues involved in the case. While content many times is not as important as the actual delivery of the summation, nonetheless it is obviously important. Thus, for the content to be delivered in an effective manner, the communication style must be clear and concise and must be organized in such a manner that the jury can follow it as it is delivered. When counsel uses the “echo effect,” uses demonstrative exhibits, uses the language of the case and gives his remarks a structure, the essential elements of a winning summation are present.
1) An Interesting Introduction
With respect to the recommended structure, as indicated, counsel should initially deliver an interesting introduction to the summation. In short, the jury should hear an argument at the very beginning of the summation which captures its attention. It is recommended here that the beginning of summation mirror and/or have an “echo” effect of what hopefully was an interesting opening statement.
In a hypothetical case involving a high speed police chase, counsel for the plaintiff might give an opening statement that would read as follows:
This is a case about a police chase that should never have occurred and that resulted in the death of my client’s twenty-two (22) year old daughter, whom we contend was killed by a reckless disregard for proper police procedure by the officer involved. This case is also about the failure of the police officer and his employer, The ___________ Police Department, to acknowledge their role in this tragic loss. The evidence will show that they did have a role, a substantial role, in causing the death of this young lady and as you will hear, there will be no evidence that the victim of this tragic incident was in no way guilty of any wrongdoing herself. She was completely and totally innocent at the time of her death and lost her life partly because the police officer and his employer recklessly disregarded proper police procedures concerning the initiation and continuation of an objectively indefensible high speed pursuit.
If this kind of opening statement were given, hopefully the jury’s curiosity was piqued and their interest elevated at the very beginning of the case. Now, during summation, counsel should again describe the issue in such a manner as to get the jury’s interest and maintain it. Echo back to what was said by using the same terms, repeating the same themes. Stay on message at the beginning, but do so with impact.
2) A Discussion of What Happened and Why
After gaining the jury’s interest, counsel should then proceed to a discussion of what happened and why the defendant is liable. Here, counsel does not want to retry the entire case. Rather, counsel wants to discuss most important the facts that entitles his client to a verdict. It may be helpful to refer briefly to the pleadings and the Answer of the defendant. If you note a material fact that was denied in the Answer, this should be mentioned and then the jury should be reminded that the plaintiff has proven that the asserted fact is true.
While you should never go witness by witness in a recitation of what you proved, you should summarize the testimony and evidence offered by offering a cohesive unified theory of the case. I do not recommend that you use the term “theory of the case,” but I do recommend that you present your theory in a summarized manner tying together the most important facts and evidence supporting your claims for recovery
A Discussion of the Law and Burden of Proof
After discussing what happened and why the facts support plaintiff’s contentions, counsel should then proceed to a discussion of the law and the burden of proof. When discussing the law, counsel should use the exact same language that the Court will use in its charge to the jury. If nothing else, when the Court uses the same language in its charge, the credibility of the attorney is enhanced.
Counsel should very clearly explain what is meant by the preponderance of the evidence. This is a term of art well known to lawyers, but may not be understood by juries. Counsel might wish to remind the jury of the difference between proof beyond a reasonable doubt that they have heard discussed on television in a criminal case and the different burden in a civil case, that being proof by preponderance of the evidence. This can be done in a variety of ways including referring to the scales of justice tilting ever so slightly in the plaintiff’s favor. However it is done, it is absolutely necessary that the jury understand that the burden of proof is only that which is more likely to be true, not proof beyond a reasonable doubt.
4) A Discussion of Damages
Obviously, there must be a discussion of damages. This is addressed in greater detail later in this paper (see Subsection H, infra.), but suffice it to say, damages must be discussed in such a manner that the jury understands what it is that the plaintiff is seeking and why it is that a verdict in the suggested verdict amount would be both fair and just.
5) The Close
As to the last portion of the Closing Argument or the peroration and conclusion, once again, this must be delivered in such a way that the case is closed with a planned impact. Numerous statements can be made such as “I have worked hard at presenting the evidence for you to decide this case. I know you will decide this case as it should be decided and that you will return a verdict in favor of my client,” or “we appreciate the attention you have given us. We know you will do the job that you are charged as a jury to do and that you will return a verdict which speaks the truth in this case, that truth being that my client is entitled to a verdict in his favor;” or “I have now finished my job, now yours begins;” or “we are absolutely confident that you will do the right thing and that you will return a verdict which not only speaks the truth, but demonstrates to the defendant that they must take responsibility for their conduct.”
While these are only examples of how one can end a summation, what matters is not so much what is said, but how it is said. 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.