This brief article was written primarily for my, Eric Roy, and my staff’s benefit. Here I point out some important tips to employ in closing argument in the plaintiff’s personal injury trial setting. Most of these ideas come from brilliant trial consultant David Ball. David Ball has written substantially on modern day plaintiff’s trial advocacy and thus I refer you to any of his publications if you seek a thorough understanding of this material.
One of the primary considerations we need to keep in mind in closing is that the time for persuading jurors is long over by the time we reach closing arguments. The vast majority of the jurors are firmly grounded in their decision prior to either plaintiff or defense counsel presenting a closing argument. Thus if you are at this point in trial don’t waste your time trying to convince jurors to join your team. The jurors who have decided for the defense are already grounded in this position and you won’t be able to persuade them this late in the trial to change over to your team. Thus the question becomes what should you do in closing if not persuade? The answer to this is that you need to be “arming your jurors”. What does this mean “arming your juror”? Well when jurors go back into deliberations they will have to hash it out amongst themselves. We need to remember that the majority of the population doesn’t make a living arguing points. Thus your jurors may not naturally be prepared to defend their positions and to win over the other jurors without some advice from their coach, you. To this end, you need to arm your jurors with the arguments they can make to defend a plaintiff’s verdict.
To do this start right off the bat by telling your jurors that they have three different jobs in deliberations. This will wake them up as they are assuming they only have one job. You wake them up so that they begin paying attention to you. Remember that by now you are late into the trial, the jurors are grounded in their positions, and they want to go home. Thus they are not paying attention to you until you make them pay attention. So tell them about their three jobs in deliberations. First, tell them they need to answer the questions the judge gives them. Second, tell the jurors they need to make sure everyone on the jury follows the law given to them by the judge. You will have already talked about this concept with your jurors in opening argument. Thus it won’t be an unfamiliar topic. Though you can go over it again briefly in closing to remind them of what they can and cannot consider in reaching a verdict. This will refresh their memories. The third thing to tell the jurors is that they will have to explain to the other jurors the reasons why they feel the way they do.
Now you have accomplished two things. First, you have awoken your jurors so that they are paying attention to your closing as they otherwise wouldn’t be. Secondly, you jurors just realized that they are going to need to explain and back up their opinions in deliberations. Thus they are now listening to you so that they can be prepared for this approaching task. To arm your jurors you tell them that “if someone says “xwz” in deliberations you ca respond by saying “abc”. This is the general concept. Essentially you feed your jurors all the counterarguments ahead of time so that they are prepared. You then go through all the examples of what you anticipate to come up by the defense oriented jurors in deliberations. So, for example if your client has preexisting conditions the defense is likely to say that “Mr. X had heart problems before the accident” to which you instruct your jurors to respond by saying “we are not allowing money for injuries he had before the accident, only harms that resulted from the accident”. This is just one of many examples. David Ball suggests that you use demonstrative boards to go with what you are saying. You can use one board for all the defenses that you anticipate coming up in deliberations and then use another large board directly next to the first board which describes how your favorable jurors can respond to the defense oriented jurors argument. This is a great idea.
When you are arming your jurors, you need to be speaking concisely and plainly. This should always be your mantra throughout trial. However at this stage it is very important because you want your favorable jurors to be able to repeat the language you are teaching them. If you use complex terminology and phrases your jurors will not only not remember what you told them but they also won’t feel comfortable speaking in a way that is not natural for them. So speak in a very ordinary manner so that your jurors can adopt your statements as their own with ease. David Ball further stresses the importance of having your jurors take notes. This is especially important here so that your jurors can really memorize these phrases. Once these jurors know what to say they will then say it in deliberations. Once one individual juror says his or her point he or she becomes entrenched in this position. It then becomes difficult for this juror to back down from a position he or she made publicly. Thus give your jurors the words to say so that they can take a position. Once other jurors hear one of your jurors echo the defenses you have taught them they will become unified as a team. You have now built yourself an army of jurors with the ability to articulate a unified position.
Although it is sometimes the last thing we get around to and sometimes difficult to do we, as plaintiff’s lawyers, need to remember to write our closing arguments down. Not only do we need to write them down but we should write them down before trial begins, long before trial begins. The reason for this is that we want to have one less thing to worry about throughout trial. It is difficult to be preparing and drafting a closing argument in the middle of trial. Moreover, you will be exhausted at this point of the trial. If you do it well ahead of time you will be confident in yourself while you are in trial, the less stress you have to deal with the more relaxed and confident you can be when conducting the remainder of trial. Moreover, if you have your closing argument prepared well in advance you will then have an outline in your head of what you will need to prove in trial. This will guide you as you depose your witnesses and prepare your direct and cross examinations. So get working on drafting your closing argument well in advance of trial