Effective Closing Arguments Hon. Thadd A. Blizzard, Sacramento County Public Law Library November 30, 2016
Preliminary Comments
Trials This presentation assumes we are primarily talking about closing arguments in the trial court. Occasional comments about appellate arguments will be made.
Trials Reality = What comes into evidence! If it is not evidence, it does not exist; What the lawyers say is not evidence; Keep your eye on the ball: Make sure your evidence gets in! Is there a court reporter? If not, the judge s (or jury s) notes become the reality.
The Purpose of Oral Argument To be Persuasive! This does not necessarily mean being brilliant, funny, flashy, high-tech (though these can be useful); It means leading your listener to a point of agreement. Not necessarily being impressive but being convincing.
Trial Goal: To put the pieces of the puzzle together -- Reminding the fact finder of important evidence in a logical sequence; Applying key legal concepts to that evidence; Balance: Be instructive without insulting intelligence. (They heard the evidence!)
Jury Trial The jury may have questions but can t ask; So try to anticipate where possible confusion may lie, or where it will be difficult to resolve conflicts in the evidence; The evidence was probably presented out of sequence, so put into proper order; But you have to be reliable, so the jury can trust you!
Court Trial Goal: The same (to piece the puzzle together), but a different audience The judge has probably understood the key legal concepts during the trial; The judge has probably started piecing the facts into a coherent picture; But you can help make the picture more clear!
Court Trial The judge can ask questions; Don t fear questions anticipate them! Make it a conversation about ideas ; If the judge is taking notes, don t talk too fast! If you are referring to an exhibit (for example, in a binder), let the judge find it before you talk about it!
Setting the Stage for an Effective Closing Argument Preparation! Preparation! Preparation!
Setting the Stage for an Effective Closing Argument Preparation starts with the theory of the case What are the facts that support application of the law you rely on to get your desired relief? What is the path to the castle? (If the path doesn t lead to the castle are you sure you want to go to trial?)
Setting the Stage Opening Statement Assuming your facts and law theoretically fit together Opening statements are an important tool in making an effective closing argument later. Remember, opening statements are not supposed to be argumentative, they are supposed to tell the fact finder what the evidence will show.
Setting the Stage Opening Statement But your description of the expected evidence can have subtle argumentative aspects Bring out your powerful facts; Bring out your opponent s weak facts; Use a theme if you have one. But do not misrepresent any facts! And do not to hide from bad facts!
Preparation for the Actual Closing Argument Consider your presentation from the perspective of your listeners: The jury wants you to be: Coherent; Logical; Sincere.
Preparation for the Actual Closing Argument The judge, in a jury trial, wants from you, the advocate: No surprises! Smooth sailing, fair to both sides and the jury; Respect for the rules governing arguments.
Preparation for the Actual Closing Argument The judge, in a court trial, wants you to be: Efficient, Helpful, Honest, With real guidance in making a decision.
Preparation for the Actual Closing Argument The appellate panel in an appeal wants: To know if there really is a reason to deviate from the basic presumption that the trial court was right; To know what facts in the record support your argument.
Anticipate Problems Judges dislike objections during closing arguments: They are often difficult to deal with on the fly (for example, whether an argument is supported by the evidence); It creates the possibility of an appeal issue, or, in an extreme case, a mistrial. If possible, iron out issues beforehand.
Anticipate Problems If you have charts or graphics that you intend to use during argument, show them to the other side before you use them (you don t need to if they are in evidence); Discuss out of the presence of the jury; If you need technical assistance, get that figured out in advance; Let the court know if you are going to need time to set up.
Delivery of the Argument Goals: Don t read; Don t memorize; Don t wing it ; Do appear extemporaneous, but wellprepared!
Preparation for Delivery Example of your level of preparation: Imagine you had to describe The contents of the rooms of your house; You know it, it is familiar, but not memorized or canned ; You can move easily from room to room topic to topic in any order.
Preparation for Delivery Notes: Try to have only 1 or 2 pages of notes; (additional cheat sheet of key facts or law if needed); Your notes should be an outline (not text to read out loud); If you have written a brief (e.g., for an appeal), deconstruct it back to an outline.
Delivery of the Argument Eye contact important; Try to make a genuine human connection; Ok to glance down at outline occasionally; But don t read you lose the human connection; Don t use distracting hand gestures or body movements try to relax and act naturally!
Practice! Practice out loud; In the car, walking around, in front of others, in front of a mirror; Listen to yourself as you practice Smooth out bumps in the road (awkward words or phrasing) Make sure you are not using undefined terms.
Practice! Try compartmentalizing your argument into small segments; Work on a segment over and over and try changing it slightly as you practice. Don t be rigid or try to memorize exact words just become very familiar with the concepts (the furniture in the rooms) If court trial or appeal prepare answers for likely questions.
Practice! If using Exhibits or PowerPoint Practice with them (dress rehearsal); Have all necessary materials ready, in the proper sequence (e.g. exhibits); As you practice, consider your audience: Am I speaking slowly and clearly enough? Am I moving smoothly from topic to topic? If I were the audience, could I see, hear and understand everything?
Practice! You can, as an exception, memorize your opening lines to get you going, but not your entire presentation (but then transition); Avoid being overly dramatic; Triers of fact are aware that their job is to discern what is genuine and true, not what sounds impressive; (Jurors are pretty smart! Don t try to fake them out! Judges too!)
Show, Don t Tell The task is to walk the trier of fact along a reasonable, logical, believable path, that irresistibly leads to your desired result; Don t try to force or demand your result; Don t tell the jury or judge how to think or what to decide; Let the facts and law, as laid out and woven together by you, compel a result.
Keep in Mind the Burden of Proof! From a judge s perspective (in a court trial), the deciding factor is often the burden of proof in a difficult case; In a jury trial, focus on the burden of proof jury instruction that applies in your case, and explain why you think it has (or has not) been met.
Effective Use of Key Jury Instructions Many judges pre-instruct (before argument); You can use quotations from important instructions to bolster your argument; Consider projecting some of the instruction language on the screen. (Weave it into your argument, so it is not too dry or boring!) Point out to the jury why the instructions relied upon by the other side do not apply or are not controlling.
Beware of Improper Argument Appeals to sympathy or prejudice (no); Golden Rule arguments (no); Matters outside the record (no); Attacks on opposing counsel (no); Demonstrations (ok if using evidence); Matters of common knowledge / experience (ok but don t go too far).
Use of Theme If you mentioned a theme in your opening; Or if your method of introducing or questioning evidence in the trial suggested a theme; Tie it in at the outset of your closing argument (if it rings true!) Don t overly repeat the theme but consider using it again at the very end.
Relief Sought If using a verdict form consider going through it with the jury, projected on the screen (need to make sure the verdict is finalized first); Acknowledge the jury s power to make the ultimate decision; If a court trial, make it clear and easy for the judge to rule in your favor using numbers you want (triple check numbers!)
Preparation for Oral Argument -- Appeal Step One: - Become familiar with your forum - Local rules, customs - Visit and observe proceedings, if possible
Preparation for Oral Argument -- Appeal Step Two: Know your facts Carefully review the factual record Quick review right before argument is helpful Know the applicable law Review authority (good and bad) Again, quick review right before argument
Preparation for Oral Argument -- Step Three: Appeal Practice out loud! Realize if you need to streamline to meet time limit Moot with others Some who know the case / others who don t
Preparation for Oral Argument -- Step Four: Appeal Update your legal research; Practice the segments of your arguments out of order; Make notations on your outline or cheat sheet of key facts and law (e.g. cites to record or exact page in case citation).
Oral Argument Final Points Strong Beginning Catch and hold attention (eye contact) Conviction Convey sincere belief Delivery Don t Read Don t Memorize Don t Wing It Look at Notes only occasionally
Oral Argument Final Points Extemporaneous method Carefully prepared, but not reading or memorized Flexibility Able to discuss points out of order Pacing / Clarity Not too fast (or slow)
Oral Argument Final Points Preparing for Extemporaneous Delivery Simple Outline Annotate the outline Practice Without Notes Change Outline if Needed Listen to Yourself Practice Eliminate Awkward Phrasing ( bumps in the road )
Oral Argument Final Points Be Prepared to Access Information During the Argument (if you need it); Keep Your Outline Short Just a page or two (separate cheat sheet if needed); Avoid using a Brief as an Outline. Relax, breathe! It gets easier the more you do it!
The End