Podcast - Closing Arguments: Focus and Organization
In this episode of "The Trial Lawyer's Handbook" podcast, Partner Dan Small shares insights on crafting persuasive closing arguments. Mr. Small emphasizes the importance of organization, preparation and effective time management in delivering compelling closings. He discusses common pitfalls to avoid and offers practical strategies for guiding jurors to a favorable verdict. This episode provides essential advice for trial lawyers looking to enhance their courtroom performance and maximize their persuasive impact during closing arguments.
Listen to more episodes of The Trial Lawyer's Handbook here.
Mr. Small is also the author of the new American Bar Association (ABA) book Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and What They Can Teach Trial Lawyers.
Dan Small: The purpose of a closing argument is to persuade. It's not to show off or tell stories just for the sake of telling stories, or to listen to the sound of your own voice. The closing argument is your final opportunity to persuade the jury, but your time is brief and therefore precious. In a very short period of time, you need to summarize the evidence — or absence of evidence, as the case may be — and explain why that evidence requires the conclusion you want the jury to reach is the right thing to do.
Nothing is as important as the facts. You need to organize them and present them in the most compelling way that you can. You can overcome a host of other problems if the jury thinks that the facts are on your side. The time available for closing argument is almost always limited, whether by the court or by the jury's attention spans, and almost always insufficient to touch on every issue. Your arguments should be tightly organized and planned well in advance. It should have a sensible structure, including a beginning and an end. Your words should be chosen with great care, with careful attention to pacing and delivery.
Way too many closing arguments are way too disorganized. Some are so disorganized, it's as though the lawyer never realized that he or she would have to say something at the conclusion of the trial. I have heard lawyers say things in closing like: "I had another dozen or so points I wanted to make, but I'm running out of time, so I'll have to stop here," or "Did I mention that…" or "I don't have time to talk about the other exhibits, but you'll have them with you in the jury room. You should really read them and form your own conclusions." or. "Oh, oh, and another thing I forgot to mention…" One wonders what effect such statements have on the client sitting there at the table. Certainly the effect on the jury can't be positive.
The following factors contribute to disorganized closings:
One, procrastinators run out of time to prepare. The conclusion of a trial is normally a period of hectic activity for the lawyers, including motions for directed verdict and finalizing of jury instructions. And the schedule of trials is not always predictable. Sometimes they end earlier than expected. Lawyers who assume that there will be time to prepare for the closing later are often caught short when later is now.
Number two, because closing arguments have so much to address in such a limited time, any flaws in organization or preparation are likely to be exposed.
Number three, trials are dynamic, and therefore unanticipated matters arise. Not everything can be planned out beforehand.
Number four, lawyers don't practice their closings, and in particular, they don't practice it with non-lawyers: normal people, just like the jury.
And number five, lawyers stubbornly insist on doing closings without outlines, scripts or even notes.
Jurors will have a form with them in the jury room, and the form will ask them to make specific decisions. The purpose of your argument is to guide them to the right decisions. You don't have to read the form out loud necessarily, or go through it question by question, or follow its every word, but don't ignore it either. The whole point of the trial is to get the jury to fill in the right answers on that piece of paper. Many lawyers say that the most effective way to persuade jurors is to let them reach the desired conclusion on their own. In other words, to give them the facts that compel that conclusion, but not the conclusion itself. The theory is that the jurors will feel more receptive to your argument if they're allowed to reach the decision themselves. That may be true, but it strikes me as a very dangerous approach.
Do not assume that the jury will reach the conclusion you want, just because you think it's compelled by the facts. Even if you think it's obvious, the jury may not. Tell the jurors what you want them to do. Tell them thoughtfully, intelligently, respectfully, even matter-of-fact-ly. Don't bludgeon them, but tell them. Ask them to do the right thing and tell them what it is and why it is. Remember what you're there to do: persuade. A well-organized closing that presents the facts in a clear and compelling manner, and guides the jurors to the right decision, will do just that.