Advanced Trial Handbook

Closing Arguments Discussed

The closing argument is one of the most important parts of a trial, as the entire trial leads up to the summation. The argument is especially significant if the outcome of the trial is too close to predict. At that point, all that matters is the attorney's last minute attempt to persuade the jury to find in favor of his or her client.

During the summation, all of the evidentiary pieces should be brought together and the case should be presented in a strong, fluid, and persuasive manner. All points that help prove the elements establishing the theory of the case must be fully explained. The closing should be performed in a simple, yet precise way.

The podium should not be used. Instead, walk around freely. The use of a podium blocks communication and sends a message to the jury that there is something between you and them. Closing argument should be presented without notes or with as few notes as possible. If notes must be used, then use flash cards or very well organized papers so that you are not fumbling through documents when closing the case. Stand no closer than six feet from the jury. If you get too close, you will be encroaching on the jury's comfort zone and may cause them discomfort.

Begin the closing argument with a basic greeting. Almost all trial attorneys will thank the jury for their patience and attention before formally beginning the summation. This should not be done in a patronizing way, but sincerely and honestly. You should also explain what the summation is all about. A road map should be given to the jury explaining what is going to be done and how it will be accomplished.

Use simple and plain English. Leave legalese at the office. Avoid using excessively flowery language or complex legal terms. If complex scientific, medical or legal terms must be used, make sure that those words and terms are completely explained and defined well before they are used in context during the closing argument.

Next, discuss the difference between a civil and criminal trial. The jury should understand that a civil trial is not conducted like a criminal trial and that at the end of the civil case, no one will go to jail or lose any privileges. The jury should understand that monetary damages are being sought.

After that, discuss the standard of proof. Compare and contrast the standard of proof in civil cases from that of criminal cases. Examples of how the standard of proof works in civil cases should be provided. For instance, the trial attorney should explain that the greater weight of the evidence is like the scale of justice. That is, if the scale tilts to one side just a little bit, that is enough to be considered the greater weight of the evidence. Other examples may be used,such as the difference between 51% and 49%. These examples will help the jury understand the standard of proof and how to decide the case.

Follow that discussion with a complete and interesting explanation about the basis of the lawsuit. A short summary of the theory of the case and the establishing evidentiary facts should be presented to the jury at that point. Deliver this portion of the closing as if telling a story.

After the general picture has been fully illustrated, break down the case by elements in the order that they will be presented to the jury in the instructions. For example, in a negligence case, the attorney should explain what the elements of liability are and how the elements were met or not met in the case. Show how the evidence supports the theory of the case.

The testimony of the witnesses and the documented evidence supporting the claim should be discussed at that point as well. It important not to rehash all the evidence presented during trial. If the entire case is presented during closing, this will become too boring and the jury will be put to sleep. Instead, point out the highlights of the testimony and the key pieces of the evidence in the trial.

Never misstate the evidence or your position in the case. Jurors do not forget these things, and collectively remember everything that happens in the trial. Jurors can and will forgive a lawyer if he is kind and honest, but if they think the lawyer is lying to them or misstating the evidence or the law, the jury will never forgive that lawyer and the client may suffer as a result.

Make sure that demonstrative evidence is used when explaining the key points in your case. The jury will need to see and hear the important parts of your argument. The use of demonstrative evidence greatly increases the effectiveness of the closing argument. It will allow the jury to fully understand the case.

It is important to anticipate the arguments that may be made by the other side. Prepare to rebut those arguments before they are made. Nevertheless, avoid attacking the other side's attorney directly. Juries do not appreciate this type of argument and it often backfires. Under all circumstances, do not engage in a personality battle with the opposing party or counsel.

After completely discussing the elements of the case and your client's right to prevail in the lawsuit, move on to discuss damages. This is extremely important and cannot be rushed or discussed in a haphazard or unorganized way. At least 35% of the time allotted for closing argument should be devoted to a thorough discussion of the damages. After the damages presentation, the jury should be fully convinced that your client has sustained significant harm and should be compensated. If properly presented, a significant verdict may result. Conversely, if representing the defense, the argument should focus more on the liability aspect of the case.

The defense should discuss damages in a pure logical and mathematical way. The defense should remind the jurors not to reward the plaintiff, but solely to compensate the Plaintiff and only if liability exists. Some defense lawyers believe that no particular amount should be discussed during closing argument when defending damages. This has proven to be effective for many defense attorneys, but it is also a very dangerous practice. If the jury plans to award the plaintiff a compensatory award, and the defense does not discuss specific amounts, the jury may feel obligated to award the amounts suggested by the plaintiff's attorney. Instead, a defense attorney may want to argue that no damages should be awarded, but that if damages are awarded, the amounts should be based on realistic figures. A sincere and conservative discussion of damages should then follow.

After damages are discussed, you should conclude the closing argument with a strong ending. The heart of the case should be proclaimed, followed by a request that the jury find in favor of your client. Thank the jury for their attention, then sit down at counsel table and appear confident that justice will be served.

Always remember to deliver the summation convincingly, clearly, and in an organized manner. Great closing arguments are rarely spontaneous. They require proper preparation, organization, practice, and inspiration. If delivered properly the closing may make all the difference in the result of the trial. Thus, you should devote sufficient time and effort to properly prepare the closing argument.

Personal Beliefs Should Not Be Asserted During Closing Argument

When presenting closing argument to the jury, you should never assert your personal belief about the facts in the case or about anyone's credibility at trial. A trial lawyer who states what she thinks about the case or about the witnesses' credibility during closing arguments will violate the law. Such conduct may even require reversal of the case as discussed in more detail below. A lawyer may not vouch for the credibility of a witness or even opine that a witness should be believed or not believed based on counsel's statement to the jury that the witness was telling the truth. Sequin v. Hauser Motor Co., 357 So.2d 1089 (Fla. 4th DCA 1977). It is also improper for a trial lawyer to state that she believes that her client was seriously injured during an accident. Albertson's, Inc. v. Brady, 475 So.2d 986 (Fla. 2d DCA 1989). Further, it is forbidden to state a personal belief during closing as to whether a party acted reasonably or unreasonably in causing the accident being litigated. See Moore v. Taylor Concrete & Supply Co., Inc., 553 So.2d 787 (Fla. 1989).

A trial lawyer must never state her opinion of the opposing party or opposing counsel during closing argument. In cases where the plaintiffs' attorneys have verbally attacked the opposing attorney and opposing parties as being liars, despicable and guilty of committing fraud upon the court and the jury, the Third District Court of Appeals has consistently reversed the cases and granted new trials. Owens Corning Fiberglass Corp. v. Morse, 653 So.2d 409 (Fla. 3d DCA 1995); Kendall Skating Center, Inc. v. Martin, 498 So.2d 1137 (Fla. 3d DCA 1989); Sun Supermarkets, Inc. v. Fields, 568 So.2d 480 (Fla. 3d DCA 1990).

Rather than alleging that the opposing party, opposing counsel and the opposing party's witnesses are liars, a trial lawyer should simply point out the inconsistencies in the opposing side's testimony, the bias and lack of credibility that the evidence has shown, followed by a simple question presented to the jury focusing on who the jury should believe. The plaintiff's witnesses appear credible and have good qualifications and backgrounds, and if the defendant's witnesses have made inconsistent statements or have questionable motives for testifying the way they did during trial, the plaintiff's attorney should then compare and contrast the testimony of the plaintiff's witnesses against the defendant's witnesses and ask the jury "who they are going to believe." By handling the credibility problem of the opposing side in this fashion, the attorney may highlight what the problems are with the opposing side's witnesses without basing it upon the attorney's own opinion.

During closing argument, remember to keep your personal beliefs out of the presentation. Instead, direct your comments to the evidence and the law and explain to the jury what conclusions should be reached without stating what "you believe."

Teach the jury, use logic, tell stories, but do not provide the jury with your personal opinions about the case. If you do, your case may be reversed.

The Golden Rule

During closing argument, the attorney for the plaintiff may not ask the jury to place themselves in the place of the plaintiff when deciding how much the plaintiff should be awarded as compensation for the legal wrong in question. If this occurs, the defendant's attorney needs to immediately object and move for a mistrial since this would be considered a violation of the "Golden Rule".

If an argument strikes at that sensitive area of financial responsibility and requests the jury to consider how much they would like to receive under similar circumstances, then the argument violates the "Golden Rule". Metropolitan Dade County v. Zapata, 601 So.2d 239, 241 (Fla. 3d DCA 1992). Trial attorneys may not ask the jury to measure the plaintiff's pain and suffering by putting themselves in plaintiff's shoes. Schreidell v. Shoter, 500 So.2d 288 (Fla. 3d DCA 1986), rev. denied. 511 So.2d 299 (Fla. 1987. The jury should not be asked to mentally go through the same pain and suffering that the plaintiff went through in deciding what damages should be awarded. National Car Rental System, Inc. v. Bostic, 423 So2d 915, 917 (Fla. 3d DCA 1983); State Farm Mutual Automobile Ins. Co. v. Curry, 608 So2d 587 (Fla 4th DCA 1992).

On the other hand, it is permissible to ask the jury to consider what damages the plaintiff has suffered. It is also proper to ask the jury to place themselves in the position of compensating the plaintiff for the injuries the plaintiff sustained. Simmonds v. Lowery, 563 So.2d 183 (Fla. 4th DCA 1990). In Simmonds, the plaintiff's attorney during closing argument requested that the jury "think about what you would pay someone for one day of what you hear she [plaintiff] has to go through and for the rest of her life." There, the court found that the argument was not a "Golden Rule" violation since it simply requested the jury to consider how much they would pay the plaintiff for damages, rather than asking the jurors to how much they would want to recieve if it was their case. The court found that plaintiff's counsel merely asked the jury to do what jurors are required to do - that is, compensate the plaintiff for injuries sustained once a finding of liability has been made. Id.

If the argument is not directed towards damages, the argument may not constitute a "Golden Rule" violation. In Metropolitan Dade County v. Zapata, 601 So.2d 239, 241 (Fla. 3d DCA 1992), an automobile rear end collision negligence case, the appellate court found that it was permissible for the defendant's counsel to discuss the possibility of the jurors driving a car and realizing that they were about to hit a car in front of them that had suddenly and unexpectedly stopped. The Fifth District Court of Appeals found the argument to be permissible because it was not directed to damages. Id.

In order to preserve an objection to a "Golden Rule" violation, defense counsel must immediately object to the argument. Schreidell, 500 So2d at 233. The motion for a mistrial should also be made at the time that the improper argument is made. If it is not made contemporaneously with the statement in question, the objection may be waived unless it constitutes a fundamental error. Newton v. South Florida Baptist Hospital, 614 So.2d 1195, 1196 (Fla. 2nd DCA 1993). Schreidell, 500 So.2d at 233. If the error is so fundamental as to extinguish a party's rights to a fair trial, then a new trial me be warranted even in the absence of a timely objection or motion for mistrial. Silva v. Nightingale, 619 So.2d 4, 5 (Fla. 5th DCA 1993).

A contemporaneous motion of mistrial should be made to preserve an appeal on any objection to an improper "Golden Rule" comment made during closing arguments. Griss v. Griss, 526 So.2d 697 (Fla. 3d DCA 1988). The motion for mistrial may be made when closing argument is finished, but must be made before the jury begins to deliberate. Id. Nevertheless, it is recommended that the objection and motion for mistrial be made contemporaneously with the objectionable statement to avoid any inadvertent waiver of the issue.

When making closing arguments to the jury, it is important that the trial attorney not ask the jury to place themselves in the litigant's shoes. Instead, refer to the "reasonable person" or explain that if the word "you" is said during closing argument, that it does not mean the "jury" but only means people in general. See Metropolitan Dade County v. Zapata, 601 So.2d 239, 241 (Fla 3d DCA 1992). If a "Golden Rule" violation occurs, the opposing party must immediately object to the impermissible statement; otherwise, the objection may be deemed waived.

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