By Hon. Robert Trentacosta
The following is a checklist to help you prepare and deliver a successful Closing Argument. In your first few trials, be sure to review this list until the items become familiar and habitual.
- Review the applicable jury instructions for each count or cause of action, and any defenses applicable to your case. In crafting your Closing Argument, you must know the elements you need to prove or refute.
- Review your Opening Statement. There must be symmetry and consistency between your Opening Statement and Closing Argument for you to have credibility with the jurors.
- Review your case theme and theory. By Closing Argument, your case theme and theory should be familiar to the jurors. Closing is the time to make sure that you bring the evidence together for the jurors so they will fully understand and agree with your case theory.
- Organize your argument. The basic components are: a dynamic beginning; a compelling and accurate factual story consistent with your case theme and theory; an application of the facts to the law; a strong ending that reinforces your case theme/theory; and a clear “ask” (tell the jurors what you want them to do).
- Once you have outlined the narrative, decide how you will illustrate your argument with visual aids.
- Review your trial notes to excerpt any successful impeachment of witnesses or admissions of untruthfulness. Prominently feature any untruthfulness of opposing witnesses in your Closing Argument.
- Create an outline of your Closing Argument and practice out loud.
- Anticipate opposing counsel’s arguments and craft responses, in advance of Closing, to inoculate the jury against your opposition’s claims.
- Put the outline of your Closing Argument on your laptop or on a manila folder that can be laid flat on the courtroom podium. This will give you a safety net should you lose your place. Reference to these outlines can be done at a glance and will not interfere with your delivery.
- Do not write out your Closing Argument on separate pages (that need turning) or on a legal pad (you will be flipping pages). You want to maintain eye contact with the jurors throughout your Closing. Anything that prevents you from doing so, needs to be jettisoned.
Delivery of your closing argument
- Do not read your Closing Argument. Like Opening Statement, this is a performance that must be animated, engaging and appealing to the jurors.
- Speak with confidence and conviction.
- While you may use the podium as a base for your laptop or manila folder containing your outline, step out from behind the podium, stand in front of the jurors, and speak directly to them.
- Remember you have a “magic minute” at the beginning of your Closing Argument when you will have the jurors’ rapt attention. Make your beginning memorable and consistent with your case theme and theory.
- Be scrupulously accurate when you recount facts for the jury. You may not argue facts that are not in evidence. Your credibility is key to persuading the jury to trust you.
- Use visual aids to illustrate your points. Make sure the visuals are large enough to be seen clearly by the jurors; legible and (in the case of video or photos) vivid enough to convey convincing power.
- This is an argument. Argue. Do not simply recite facts to the jury. Explain to the jurors the significance of the facts and why they support your position.
- Keep your legal argument simple and understandable. Show the jurors the elements of the crime, or cause of action, and make it absolutely clear why the facts support your position.
- If the opposition was inaccurate in their Opening Statement or made promises they did not keep, make them pay. Point out to the jury the opposition’s failures. For example, your preface may be: “Here are the promises the other side made to you in their Opening Statement. Promises that they did not, and could not keep…”. It can be especially powerful to quote from your opponent’s Opening Statement when you list the inaccurate facts or failed promises.
- Hone-in on the opposition’s witnesses that were impeached or admitted untruthfulness. If the impeachment/untruthfulness was on a key point, ask the jurors to disregard the witness’s testimony in its entirety as not worthy of the jurors’ belief.
- Don’t bore the jurors with insignificant details. If you give as much time to the trivial issues or facts as to the important ones, you will dilute your argument and become ineffectual.
- Build to a strong finish. Inject passion into your argument as you finish. For example, in a self-defense case you may argue: “We know now that Bill Williams had to make a life and death decision when he was charged by a drunken and crazed Sam Booth. Bill Williams chose to defend himself. He chose to fight. He chose to live. And ladies and gentleman, he chose to do what the law allowed him to do – defend himself and survive.”
- At the end of your Closing Argument, make a clear “ask”. Tell the jurors what you want them to do and be crystal clear. For example, “We ask you to find Bill Williams, not guilty of this charged crime.”
- In keeping with a clear “ask”, make sure you explain the Jury Verdict form to the jurors. Tell them specifically what they need to know to fill out the form to reach your desired verdict.
Closing Argument requires conscientious and determined personal preparation. You want to create an argument that is consistent with your case theme/theory and symmetrical with your Opening Statement. The argument should not be read to the jury. Deliver the argument with confidence and conviction. Make eye contact with the jurors and argue the case. Do not just recite facts, but explain the significance of the facts and why they support your case. Be honest when reciting facts to the jury and make the other side pay if they were inaccurate, or untruthful in their Opening Statement. Build to a strong conclusion and finish with a clear “ask”. Review the Jury Verdict form with the jurors to reach your desired verdict.