Podcast - Closing Argument: Opportunity and Challenge

Dan Small: By God, you've done it. You've made it through the evidence, and now comes one of the most exciting and challenging parts of any trial: the closing argument. A seemingly endless stream of TV shows and movies portray this moment with great drama. The lawyer, standing up from his chair, standing in the well of the court, faces jurors and vehemently tells them why justice demands a verdict for his or her client. He or she is turning the tide, winning the case through argument.

Indeed, closing arguments are important and often dramatic. They allow the lawyer room for persuasion, passion and drama. More than 150 years ago, the New Hampshire Superior Court described the lawyer's freedom in closing argument in this wonderful way: "His illustrations may be as various as the resources of his genius. His argumentation, as full and profound as his learning can make it, and he may, if he will, give play to his wit, or wings to his imagination." Great stuff. What could be better?

Actually, it would be better if it was "he or she," but that was 150 years ago. However, with this freedom comes danger, tempting counsel to close in a way that diminishes its impact. That dichotomy begins with the very title: closing argument. In some ways it's both, but in some ways it's neither.

First, closing. This is indeed your opportunity to close the case. Your chance to pull all the disparate strands of evidence together and weave a clear and compelling picture. It is, without a doubt, an important moment in any trial. However, lawyers being lawyers, we tend to think of the word "closing" as the vehicle for tying up every loose end and following every rabbit trail. At trial, that can be a terrible mistake. The great latitude you are given in closing means that it's easy to lose your message. Don't wallow in detail. Don't get distracted. Attention spans are short. You have a very short period of time in which to highlight what's important in the evidence, and explain why that evidence requires the conclusion you want the jury to reach.

Second, argument. Of course, you're an advocate, and you want to win. You must believe in your cause. Be passionate, even angry or emotional if it's appropriate. But in closing, you're not there to argue with anyone. You're there to persuade. The dictionary defines argument as "a heated exchange of opposite views." Nowhere in that definition is "changing anyone's mind." Indeed, we all know from our own lives that the more heated an argument becomes, the less likely it is that anyone is really listening, and the less likely it is that anyone is going to change their mind. The dictionary defines persuasion as "causing people to believe something." That's the goal, not conflict. Focus on the facts, not anger. Be the honest tour guide who takes the jury by the hand and leads it on the correct path, not the bully who tries to push jurors through by force.

The reality is that the myth of jurors changing their minds based solely on the power of closing argument is largely just that, a myth. If a juror has really made up his or her mind, even the most impassioned closing is unlikely to change it. Rather, focus on the members of the other two audiences: those on the jury who are already leaning your way and those on the jury who are truly undecided. For jurors leaning your way, give them the evidentiary ammunition, the answers to the great questions that will be raised and well-supported theories for them to take back with them into the deliberation room. For those who are undecided, help them to see the light, to know what the right thing to do is and to see you as a credible guide, an advocate that they can trust and respect because you trust and respect them.

So it is that even the phrase "closing argument" reflects some of the many challenges of this last critical phase of the trial. In the next few episodes of the podcast, we'll address in more detail the process of preparing, organizing and delivering a closing argument. But first and foremost, remember what you're there to do. Tell a compelling story based on the facts that leads the jury to your theories of the case and leads them to the right conclusion. That's all.