Podcast - Storytelling in Closing Arguments

Daniel Small: Trials are all about persuading people, ideally by telling a powerful story. Trial counsel should introduce the story in opening, create the pieces during the presentation of evidence and then pull it together in closing. To be as persuasive as possible, the story has to be built right, told right and shown right. Let's look at each piece.

First, build the story. The jurors are there because they're supposed to be. But that's not enough to hold their attention. There are two key questions are:

"Why am I here?"

and

"Why should I care?"

Maybe also,

"What time is lunch?"

But you can't answer that one.

The answers to these questions are commonly called the core themes of the case. Short, clear statements that give the jury an understanding of why they're there and why they should feel good about it. Develop your themes when reviewing the evidence, talking to non-lawyers about the case and working with your witnesses. Once you've found them, apply those themes at every stage. Build to your conclusion so that by closing argument, those themes are already familiar and well-founded.

Next, tell the story. Don't just summarize the evidence. Tell the story, start to finish, in a clear and meaningful way. Of course, it's important to tailor your story not only to the case, but also to the court. Different regions and courts differ wildly in how far you can go in telling your story. In the book of my trial stories that the ABA just published called Lessons Learned from a Life on Trial, I talk about the month-long drugs and multiple murder racketeering trial of Sam Cammarata that I tried in Texas. Although the trial was in federal court, the case was principally investigated by the Texas Rangers. I had a great group of rangers working with me throughout. Cammarata had been an informant, first for the DEA, then for the CIA. In both cases, using his role to further his own criminal organization. During the trial, as a prosecutor, I had to build that story of deceit. In closing, I pulled it together by talking about an octopus, which, when cornered, exudes a cloud of black ink and tries to slither away. Don't let Sam do that. It was a great analogy.

And afterwards, the Rangers congratulated me, saying, "Hey, you preach pretty good for a northern boy."

And that's part of the problem, and part of the point. Courts differ. Parts of that closing argument, although perfectly acceptable in that Texas courtroom, might well have drawn objections in courtrooms in other parts of the country. You have to carefully consider the local customs and practice and then tell your story as powerfully as you can.

Remember the keys to a good story.

First and foremost, good stories are almost always about people. There may be a document or a device or some other thing at the center of your case. But think about it. When was the last time you heard a really good story about a piece of paper or a gadget? Humanize the case. Make your story about real people. Nobody wants to rule in favor of a piece of paper or a legal fiction.

Second, make it about motive. People usually do things for a reason, and we all want to know what that reason is. We are also more inclined to believe that someone did something. If that action is consistent with a clear motive, don't just tell what happened. Tell why it happened.

Third, try to make it about right and wrong. Your client did the right thing. Here's how and why it's right. The other side did the wrong thing. Here is how and why it's wrong. Pretty simple, but very important.

Fourth, make it about justice. The story can have a good ending, or at least a better ending, only if the jury makes sure that justice is served. Show that in order to do justice, here's what needs to happen and why.

Finally, show the story. We said build the story, tell the story, now show the story. I was a teacher before I was a trial lawyer. Good teachers understand that. We all learn through all of our senses, not just our ears. The more senses we get to use, the more likely we are to be inspired or moved. Giving a closing argument with just spoken words is giving yourself a huge handicap. Don't do it. Be creative in finding ways to show your story. The choices can vary widely depending on the available courtroom technology and the case budget, but they may include:

• Transcript excerpts: Key excerpts from a testimony can be blown up, highlighted or even summarized.
• If you have a video, use it. A video can have a much greater impact than a written transcript.
• A timeline. Events happen in a particular order, and the jury usually needs to know that order. A judge, who is a friend of mine, talks about going into the jury room after a case was over and the jury not having been given a timeline by either side's lawyers, made their own on the blackboard in the jury room. You don't want that to happen. You want to be in control of your story.
• Next, summaries, facts, numbers, even key events can be shown visually through charts and graphics. Think about what point you want to make and what image would help you make it most effectively.
• And of course, exhibits. Bring a document, a photo, a map, a diagram, whatever it is — bring it to life. Blow it up. Highlight it. Don't let a key exhibit sit there lifeless in a pile of other exhibits.

There's a wonderful Native American proverb that every trial lawyer should remember. It says:

"Tell me the facts and I'll learn. Tell me the truth and I'll believe. But tell me a story and it will live in my heart forever."

That is the key to giving a powerful closing argument. Build a story, show the story and tell the story.