Trial Attorney Blog

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

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In order to communicate with sincerity, there must be a body language and eye contact that flows naturally when discussing a case with the jury. The word discussion is important because one should never read to a jury or give them a speech. It is difficult to develop a personal rapport with the jury if one is speaking at someone as opposed to talking with them. While there should be an element of formality to the summation consistent with the seriousness of the cause of action, nonetheless, the summation should be conversational in tone, as if the lawyer is having a serious discussion with the jury trying to convince them of the justness of his cause.
I recommend that the trial attorney prepare a detailed outline of his comments, not a script. If you read a speech the jury will be turned off. If you discuss the case with the jury, they will listen more attentively. When you speak to someone close to you about an important matter, you do not give them a speech, you discuss the issue with them with great earnestness and sincerity. The same is true when you make a closing argument to a jury. You do not speak at them, you talk with them.

Another fundamental of a sound closing argument is being as natural as you can be. You should never try to imitate someone else’s style or manner. You can only be yourself. The jury is always watching you very closely. Are you sincere? Are you believable? Are you trustworthy? Everything you do must communicate to the jury that you believe to the core of your being in the justness of your client’s cause. If you subliminally communicate such a belief in everything that you do in the presence of the jury, you will have a much greater chance of winning your case. J. D. Lee, a famous trial lawyer from Knoxville, Tennessee, made this observation:

“We have all seen great minds that have been wasted by not putting their knowledge into action. It is true with the trial of a lawsuit. The power of the attorney is expressed in how the attorney conducts him or herself in the courtroom. He or she is the one that brings in the big exhibits, the pictures, the drawings, moves about the courtroom with confidence and clearly shows why he or she is entitled to a verdict. This same professional advocate must display trustworthiness and integrity. The attorney does this by dress, by posture, by demeanor to court and jury and at times just by tone of voice.”

Most experts in the field believe that the manner of the delivery of a closing argument is just as important, if not more important, than the content of the summation. If a jury believes that counsel is honest and forthright and that the attorney is entirely confident in the justness of his client’s cause, the jury is more likely to side with that lawyer.

It is a very effective form of communication to stay on message and repeat consistently a unified theme. In the opening statement, a theme of the case or theory of the case should have been developed.
The trial lawyer should harken back to his opening statement during summation and use some of the same language in discussing the issues. This so-called “echo effect” is very important in driving home a point. The Republicans are masters at staying on message and repeating their message constantly and consistently to their audience.
By repeating a central theme and using the same language in doing so, one is more likely to achieve the intended results of the “echo effect,” that is, implanting in the jury’s mind the message one wishes to communicate.

What follows are excerpts from an article one of our lawyers wrote about Closing Arguments. We have previously posted Trial Techniques articles about effective cross-examination. As this article is broken ito separate parts, we will post the various subsections and suggestions in separate posts over the next several weeks. We hope this will be helpful to you if you are a practicing atorney and ,if a potential client, will give you insight into what a Trial lawyer should do to effectively represent your interests:

The most gifted Trial lawyers among us are highly successful orators. I use the term gifted because such innate ability is not common among all Trial lawyers. Those who can make a jury cry and stir their emotions with natural ease and innate ability are the few among us with this gift of oratory. These are the “show horses” of our profession. For the rest of us, we have to learn to be work horses in order to be successful at giving a winning summation. If we follow sound fundamentals, just like a football team, we can still deliver a winning summation even if we are not particularly gifted. The key is good, old fashioned, hard work. If one prepares properly and uses sound fundamentals, there is no reason one cannot be successful. What follows therefore are practical suggestions on how to go about giving a sound closing argument that is likely to yield a successful result.

A. PREPARE, PREPARE, PREPARE

In a wrongful death case, a jury will be instructed that they should return a verdict for the “full value of the life of the decedent.” This means not only any economic damages caused by a premature and wrongful death, but also “non-economic damages.” How is this calculated and how should jury be instructed to reach such an award? Interestingly enough, the jury will be instructed that they should rely upon their “enlightened conscious” in making such determinations.
If a 28-year old is killed and has a life expectancy of 46 years, as an example, one way to argue for the loss of the “intangible value” of life itself is to urge the jury to make an award based on each lost year of life. If, for example, the jury should determine that the value of life in Georgia for a 28-year old looking forward to his or her future is $100,000.00 per year, then the damages would be 46 years X $100,000.00 or $4.6 million. Is $4.6 million an adequate award for the loss of human life for an otherwise healthy 28-year old whose life is abruptly and wrongfully ended due to the negligence of a third party? Obviously, reasonable minds could differ over the sum to be awarded in such a case. Should it be $150,000/yr., $200,000/yr or some lesser sum?
Baseball players are sometimes paid 10, 20, 30 million dollars a year. Good basketball players can make hundreds of millions of dollars. Is one year of labor in the NFL worth 46 years of the value of a average man’s life? These are the kinds of debates juries have to engage in when determining “the full value of the life of the decedent.” Again, the intangible value of life itself is probably the most difficult aspect of the calculus in these cases, but nonetheless, the intangible value of life is worth far more than is the economic loss caused by a wrongful death. Yes, the wrongful death results in a loss of income and yes, the loss of income is part of the measure of damages, but the intangible value is the greater value and thus the greater difficulty for any jury.

As stated in earlier blogs, in Georgia, the measure of damages for a wrongful death is “the full value of the life of the decedent.” One component of the full value of the life of the decedent is the loss of earnings and loss of income. If a 28-year old dies while earning $40,000.00 per year and he/she will work until age 70 (which is another 42 years) one simple way to calculate the loss of wages would be 42 years times $40,000.00 per year. However, such a simple equation might not account for future raises, future benefits and a better revenue stream as the decedent proceeds in their career path.
A jury sometimes can be aided by the testimony of an economist, who can show the jury based on statistical data what an earnings history would look like for someone with a similar background and education, what kind of benefits they could expect to earn, etc. Of course, in today’s economic times, a jury also has to determine whether an income stream would remain unabated, whether the decedent would likely receive raises, etc. While there are no clear cut answers to these difficult questions, nonetheless, juries do have to determine what the “economic loss” is in a wrongful death context. In the hypothetical wrongful death case a 28-year old, has been killed while earning $40,00.00 per year. What would constitute fair compensation for the loss of such a promising life if the person was already earning $40,000.00 per year and had even brighter future prospects? Whether an economist is employed or whether the Annuity Mortality Table is utilized simply to argue for compensation over the remaining 42 years of the life of the decedent, either way, the calculus is not definitively defined, but is instead left to “the enlightened conscience” of fair and impartial jurors seeking justice in a wrongful death case. That is the measure – counsel must help the jury use this measure if fair compensation is to be achieved.

When someone is killed due to the negligence of a third party, a wrongful death action can be filed in order to recover the “full value of the life of the decedent” as determined by the “enlightened conscience” of fair and impartial jurors. The measure of damages is defined exactly this way under Georgia law. That being, what amount of compensation would provide adequate reimbursement for “the full value” of the life of the decedent. This seems almost impossible to calculate because one can put no price tag on the value of human life. We all have only one life to live and if our life is wrongfully terminated due to the negligence of a third party, no amount of money can ever compensate for such a loss. Nonetheless, in our legal system, juries are instructed that they should award the full value of the life of the decedent as demonstrated by the evidence if they find that a person died due to the negligence or misconduct of a third party.

In determining the full value of the life of any decedent, the jury has to look at the background of the decedent, what they had accomplished in their life, what their prospects were for the future, etc. They have to look at the age and health of the decedent, their economic potential, their earnings history, etc. Obviously, all such considerations are complicated if the decedent is a child, is elderly or someone who is disabled. Thus, the law advises the jury that they should look not only to the tangible losses caused by the wrongful death (that being a loss of income) but also the intangible value of life itself, that being what the decedent lost at the time of their death.

Georgia law is unique in that it measures damages not from the standpoint of the surviving members of the decedent’s family, but rather from the standpoint of the decedent himself/herself. The jury is supposed to look at what the decedent lost, that being relationships with family members, marriage, relationships with children, loss of income, loss of earning potential and loss of the joy of life itself. Again, this is a very difficult calculus for any jury but nonetheless this is exactly what juries in Georgia are told to do.

Negligent security cases typically arise in the context of a victim of a criminal assault either at an apartment complex or motel. If the apartment complex provides security but negligently does so, and a tenant is attacked at a time an attack is foreseeable, an apartment complex can be held liable even if the damages were perpetrated by a criminal third party. Similarly, in a motel setting, if the motel is aware that their tenants are at heightened risk of attacks from criminals and fail to take appropriate security measures to protect their guests, under certain limited circumstances, the motel owner can be liable for an attack upon the customer.

Under Georgia law, generally, there is no duty to protect invitees from the criminal acts of third parties. For such a duty to exist, a plaintiff must demonstrate foreseeability. Foreseeability is heightened and superior knowledge by the owner or occupier of the dangerous condition created by a third person. When a victim seeks to demonstrate knowledge on the part of a defendant by presenting evidence of prior crimes allegedly known to the owner/occupier, substantial similarity between the crimes is required. In other words, if someone is the victim of a rape then forced entries into motel rooms, other rapes or other similar crimes will typically be required to be proven in order to demonstrate that it was foreseeable that a guest of the motel may have been attacked by a criminal third party absent adequate security for their protection. As stated, generally, there is no liability for third party criminal acts because such acts are deemed to be intervening acts sufficient of themselves to have caused the damages and injuries without the contributing influence of the landowner/occupier.

In today’s crime ridden society, it is obviously foreseeable that anybody can be victimized by crime at any time or place. What is legally necessary in these cases is superior knowledge. If a motel owner knows that their guests have been subject to numerous crimes on their property and fails to take steps to either warn their guests and/or protect them, there can be liability because of the superior knowledge of the landowner/occupier. Similarly, if an apartment complex is aware that tenants are at risk of being raped or attacked by criminals because of superior knowledge of criminal activity on property they own, they too can be held civilly liable for damages caused by the rapist. Of course, before they can be held liable, they must also be negligent, that is failing to provide adequate security in the face of such superior knowledge.

It was announced today that Ford Motor Company has recalled 2005 and 2006 year model F-150 pickup trucks because of problems with unexpected and unintended airbag deployments. According to the National Highway Traffic and Safety Administration, the recall involves approximately 150,000 F-150 pickup trucks. It appears that front airbags have been deploying unannounced. Obviously, this could lead to an accident if the airbag deploys while the vehicle is being driven or otherwise causes a distraction that might cause a driver to lose control. Ford officials have stated that an improperly installed wire in the steering wheel may be the cause of the random unanticipated airbag deployments. Hopefully, all of these vehicles will be repaired without further incident because otherwise a serious collision could occur.
Any owner of a 2005/2006 F-150 pick up truck should immediately take the vehicle in for inspection and repair. Otherwise, an airbag could deploy at a most inconvenient time which could result in a serious accident.