Be yourself. Trying to mirror others or delivering a closing argument which is not genuine and from the heart is a certain path to failure. Find your own style and do not try to be someone you are not. A jury will always see through your act if you are not being yourself. Great trial lawyers, such as Gerry Spence, have a certain style, their style, find yours and do not try to be more than who you are.
Thank the jury. It is very important to thank the jury for its service at the start of the trial and at the start, or at least the end, of the closing argument. It is both courteous and a reminder to the jury as to why they are there and what their job will be once you have finished your argument. If the jury feels appreciated, they will be more likely to listen. If a jury feels unappreciated, there is a greater risk that they will simply want to go home rather than spend the time to come to work through the evidence and issues to achieve a just result.
Have a conversation. Delivering a closing argument is not all fire and brimstone, although it certainly can have a place in a closing argument. Closing argument is your opportunity to tell your client’s side of the story; to glue the evidence together to explain why your client should prevail. Although you are arguing your case, be cautious in presenting it in a way that you cause the jury to feel like you are telling them what to do. By conversing with the jury, you will appear as one of them and they will not feel like they are being spoken down to. You need to argue your case, certainly, but in a way that empowers them to hand down justice in their own terms.
Speak to the entire jury. The use of the lectern in delivering a closing should be avoided at all costs. It is important to feel at ease with the jury and comfortable speaking to them without the barrier of the lectern. Approach the jury box, look the jurors in their eyes and attempt to connect with each and every one of them. Of course, it is important to check with the judge prior to the closing to ensure he/she does not have some courtroom rule that requires you to remain at the lectern. If such a rule exists, do what you can to stand to its side to again avoid that barrier between you and the jury. If you are able to walk the courtroom and approach the jury, keep in mind your court reporter and make sure you speak loudly and clearly without a microphone so your, what will be historic closing argument, is fully and forever memorialized.
Don’t talk like a lawyer. Using legal terms may impress your peers, your family, but it will fall flat and turn off nearly every jury. It may also lead to confusion which rarely leads to a favorable verdict. Keep in mind that you are speaking with people that likely have very little experience with the law, let alone in the setting of a trial. If you want the jury to understand your argument, make it as easy as possible for them by using simple language understood by all.
Remind the jury that this is a civil case. It is important that the jury understand the difference between a civil case and a criminal case. Television, movies and others unrealistic depictions of legal settings often involve criminal cases. Embedded in jurors mind may very well be what they have seen and heard through that medium. By explaining the differences between a civil and criminal case, you will be focusing the jury on the appropriate burden of proof and how they should view the evidence.
The first minute. It is imperative to catch the jury’s attention right from the start. Do not be afraid to be energetic and enthusiastic and, by all means, stay away from the podium or lectern if possible. Be firm and confident, not apologetic or defensive. From the outset of your argument, the jury needs to know you are confident in your win and understand from you why you should win. This will provide the jury a context from which to judge the rest of your argument. Also, because a jury’s attention span will fade as your argument gets longer, you want the first words out of your mouth to resonate.
Never read a closing argument. If you want the jury to believe in your claim or position, you must know it inside and out. By the time you reach your closing argument, an opening statement has been given, evidence presented, witnesses have testified and been cross-examined and you have argued for or against directed verdict motions. At this point you know your case. While you may not believe yourself possible, you can sum up your client’s position and argue your points without a single piece of paper. If you must have an aid, use just small cards or bullet-points on a single piece of paper.
Restate your story. The most important aspect of the closing argument is to tell your client’s story. That story must be practical, incorporate all of the evidence and make common sense. You must reinforce your story throughout your closing. In telling your client’s story, when it comes to key events keep the rule of three in mind. Tell a jury something once, they hear it, tell them twice, they begin to see it, tell them a third time and they believe it.
Ask for input. Above all, remember that your story must resonate with common sense. One helpful tip is to run the story by others, preferable non-lawyers and not by someone who may not be forthright and honest with you. If you cannot persuade your neighbor on the next bar stool that your argument makes more sense than your opponent’s, it is unlikely you will persuade a jury.
Identify the elements. Identify the elements of the claim walk the jury through each piece of evidence applicable to each element. The easiest way to do this is with use of the jury instructions. By the time closing arguments are made, final jury instructions have been decided. Walk the jury through those instructions, plugging in each piece of evidence which supports that element, in as much of a story fashion as possible. This will be the same exercise the jury will engage in during its deliberations. Having done this for them before the deliberations gives them a clear road map to follow.
Use the jury instructions. It is important to highlight and review the instructions with the jury. They are, after all, the road map the court will tell the jury they will have to follow. Knowing that in advance, you may as well walk them through the same process they will be instructed to follow in their deliberations. By review and referring to the instructions, you will be helping the jury to understand your legal theory and it will make their job easier. It is important that the jury know what you want them to do during their deliberations.
Acknowledge weaknesses. There are very few cases that are without some blemish or weakness. If it is a blemish, one that could potentially interfere with success, do not shy away from it, rather acknowledge it and explain it. The last thing you want a jury to think is that you are hiding something or, worse, not being honest. Identify the weaknesses and then explain why they do not affect the success of the claim.
Shape your opponent’s closing. An effective technique to impact your opponent’s closing argument, one they have perhaps scripted out and had no intention of going off script, is to identify your opponent’s weakness and tell the jury to listen to what they will say about them. The goal is to force counsel to address these issues, but be sure you have a reasonable expectation that the response is either not there or not believable. Should counsel not accept your challenge and fail to address the issue with the jury, it leaves the jury with the impression that, yes, this was a problem for your opponent and one that could not be explained.
The last shot. Knowing when to draw attention to the weaknesses in your opponent’s argument is as important as knowing how to do it. As the plaintiff you should raise your opponent’s weaknesses when you first address the jury, not during your 5 or 10 minute rebuttal phase. As the defendant you, of course, only have one opportunity to raise that issue. Be careful, many judges will stop you from raising arguments for the first time in your rebuttal phase, as the plaintiff.
Know and incorporate the facts. Incorporate all or as much of the evidence as possible. For your argument to resonate with the jury, it important that you incorporate all or as many of the facts in your theory as possible. By incorporating as much of the evidence as possible and explaining why your theory makes the most sense, it will be easier for the jury to both understand and believe in your argument, but more importantly easier to reject your opponent’s argument.
Appeal to emotion. No matter your story, in the end, jurors innately want to do the right thing. Recognizing what the jury is thinking and feeling and appealing to those thoughts and emotions is critically important. Understanding your jury certainly takes time and requires constant attention from the very start of the trial. Review your notes from voir dire, recall the jury’s reactions to the witnesses, the testimony and other evidence . In your closing argument, use the knowledge and understanding to appeal to the feelings of the jury.
Visual aids. Visual aids can be an effective way of communicating your closing argument to the jury. Visual aids also serve to hold a jury’s attention. Make sure that the jury can see the aids clearly and if you are going to use visual aids such as videos, PowerPoint presentations or audio equipment, make sure it works before you start your closing argument. Finally, if you are not technologically savvy, have someone in the courtroom who is.