Podcast - In Closing Arguments, Don't Forget to Ask
In this episode of his "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small discusses effective strategies for closing arguments in trials. Mr. Small emphasizes two key principles: not asking for more than necessary to win the case and clearly articulating what you want from the jury. He stresses not only the importance of clearly explaining the desired outcome, but also how to avoid common pitfalls in closing arguments.
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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.
It's time for closing argument. And so it's time to ask for what you want. In a quote attributed to Mahatma Gandhi, among others, "If you don't ask, you don't get." But wait a minute. Have you given enough thought to what you're really asking for, how you should ask for it and what you should not ask for? There are two key ideas to keep in mind here: Don't ask for more than you need, and do ask for what you want.
First, don't ask for more than you need. Winning a trial is hard enough. Don't set the bar higher than it needs to be. Don't ask for more than you need to win the case. Here are some common traps.
No. 1: Angels and demons. There may be cases in which your client is an angel and the other side is a demon. But that's really rare. Litigation involves human beings, and human beings are almost never that simple. Chances are, your client is not perfect, and his or her actions were not perfect. Don't try to hide those imperfections. You want to portray your client as favorably and sympathetically as you can. But that doesn't mean that the jury has to be convinced that the client is an angel. Don't make that the standard. Real human beings, warts and all, can also be sympathetic, and they can win cases. Similarly, you may need the jury to find that the other side did something wrong. But do you really need the jury to find that the other side is a demon? Maybe they just made a mistake or yielded to temptation or had a lapse of judgment. It's hard to convince people that someone is really that bad. If you take on that burden and fail, you're just hurting your case unnecessarily.
No. 2: Impeachment. So you caught a witness for the other side in a prior inconsistent statement. Great, but don't get too caught up in your own success. No matter how convinced you may be, it's hard to convince others that someone is deliberately lying. Most people hesitate to make that kind of judgment and they're willing to give someone the benefit of the doubt. Unless you really need a witness to be seen as a liar, and you're very sure that you proved it, don't take on that burden. A witness can be mistaken or incorrect without being a liar.
No. 3: Broader issues. Trials often touch on broader societal issues, but you're not there to cure society's ills. You're there to win a specific result for a specific client. If you happen to do some good as a side effect, congratulations. But too often when lawyers try to turn their case into a cause, they make it more difficult for themselves and for their client. Do you really need to prove that all big companies lie? Or that all doctors are greedy? Probably not. And who knows how the jury will receive it? Maybe one of them has an uncle who's a doctor and a nice guy. It can be tempting to broaden the case. Sometimes a broad charge helps to make the narrow one more credible. But again, don't take on more of a burden than you need to win the case. There is a time and a place for addressing societal problems. Generally speaking, a trial is not the place.
Second, do ask for what you want. In some cases, the decision you want from the jury is simple and straightforward. For example, in a criminal case, guilty or not guilty. But often it's more complex, more nuanced and more problematic. So when you ask for what you want, do so carefully and clearly.
No. 1: The consequences of the case. What is it you and your client actually want the decision to be? What does it really mean to "make my client whole" or "do what is right?" Think about what the consequences will be if you win and what the consequences will be if the other side wins. Then make both things clear to the jury.
No. 2: Verdict forms. In some cases, the verdict form is only a few lines there, meaning apparent to all. That's what most jurors are expecting. Up or down, yay or nay. But often it's not that simple. And in even a moderately complex case, the verdict form can go on for pages and pages. How is the jury supposed to know what is right and what you really want unless you tell them? Take the time to walk through the verdict form. It may be a good outline of your closing argument, too.
No. 3: Money. In most cases — civil cases, at least — the remedy is money. Don't be shy or uncomfortable asking for it. Of course, you can't really make your client whole, but it's all we have and all the jury is allowed to award. Don't be afraid to talk about it openly.
Lawyers get caught up in the excitement of closing, arguing the facts, the witnesses, the right and wrong. But don't forget the ask. Don't ask for more than you need, and do ask for what you want.