Podcast - Getting Rid of Clutter in the Closing Argument
In this episode of "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small zeroes in on the enemies of impactful closing arguments: disorganization and verbal clutter. He critiques the common pitfall of overloading jurors with unnecessary words, demonstrating how a streamlined approach can significantly bolster an argument's clarity and force. Mr. Small advocates for concise language and ditching legalese to maintain juror engagement and effectively drive home key points.
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 two principal enemies of effective closing arguments are disorganization and clutter. We've talked a bit already about the importance of a highly organized and tightly organized presentation. Now, let's talk about clutter.
Closing arguments tend to be filled with noise — excess words that add nothing to the presentation and, in fact, can get in the way of the words that do. Here's a real-life example:
"Ladies and gentlemen, you heard that evidence, and you can judge it with your own eyes and ears. Don't rely on just my assessment of it. Your memory, not mine, controls. But I submit to you that Witness X was telling the truth, trying to tell the truth as best he could. And he testified that event Y happened. And that's corroborated by documents A and B and the other evidence that we have put before you. And I suggest to you that, in fact, event Y happened."
That's 87 words, and more than half of them are filler words that don't really perform any function at all. What's the point of all those extra words? It's hard to say. Whatever the reason, the lawyer's argument winds up buried under an avalanche of clutter. The lawyer is making the jury sort through all those words, ignore the ones that don't matter and focus on the ones that do. All that extra work he or she is making the jury go through, all that noise they have to ignore, at the very least, blunts the force of the argument, and for no real reason. Not only that, but the lawyer has wasted time — maybe no more than 15 seconds, but over the course of the whole argument, the effect is probably pretty substantial.
The lawyer has also wasted another finite resource: the patience and attention span of jurors. He or she is making them perform unnecessary work and making it more likely that some jurors will start to tune out.
Why not make it simple and get to the point? "Event Y happened. How do we know that? Because Witness X was there. He saw it. And because document A shows that it happened. And because document B shows it too." That approach is better in every way: It's cleaner, easier to follow and more effective. It also frees up precious time to focus on other things, or maybe just to sit down and stop talking.
It's true that most noise happens in small increments, but it doesn't matter whether you're adding extra words a few shovelfuls at a time or unloading the whole dump truck at once. Don't do it.
Remember these basic principles:
No. 1: Get rid of extra words. Every single word you utter adds to the length and complexity of your argument. If it doesn't help, if it doesn't matter, get rid of it. All of it.
No. 2: Don't use legalese. Don't say things like "I submit to you that" or "I suggest to you that"—those are lawyer words. When's the last time you used words like that in talking with someone and trying to persuade them? Those legalese words detract from the force of your argument. If you have something to say, just say it. Instead of saying, "I submit to you that the evidence doesn't add up," just say, "Ladies and gentlemen, the evidence doesn't add up." Law school spent three years pounding a new language into your brain — legalese — and making plain English take a back seat. If you are going to try cases, throw that legalese out the window. Keep it simple and invite plain English to take the wheel.
No. 3: Don't belittle your own arguments. Don't say, "What I say is not evidence." Let the judge give those instructions, not you. It adds nothing to your argument and may well detract from it. Juror No. 6 is sitting there thinking, "Well, if it's not evidence, why is he still talking?" And don't say, "Your memory controls, not mine." It suggests that you're not sure what the facts are. Simply state the facts confidently and accurately.
In short, time is precious. So is patience. If you really want to persuade the jury, get rid of the clutter of unnecessary words.