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Voice of Experience: "Does closing really make a difference?"
The Advantage: 3.05: V.2, 1st edition
Does your closing argument really make a difference? Yes, but probably not for the reasons you think.
In our December 2004 issue of The Advantage, we explained that despite common wisdom, jurors do not make up their minds after opening statements. However, by closing, jurors usually say they have made an initial decision about who’s right and who’s wrong—who won and who lost. For those few who have not completely made up their minds, they have either drawn some conclusions about “what happened,” or are strongly leaning toward one side or the other. Closings rarely produce opinion change; instead, they are more likely to crystallize an already formulated opinion.
How, then, can your closing make a difference? Closing is your last opportunity to speak to the jury—your last opportunity to make sure that yours in the story (or framework) that sticks. Instead of focusing on trying to “sell” your case, which you should have already done, closing should be used to arm the jurors with evidence and arguments they can use to sway other jurors during deliberations. Essentially, you are both inoculating the jurors who are on your side to any counter arguments they might hear, and you are arming them with the information they need to persuade the undecided jurors. To win, you need strong advocates in the deliberation room who will advance your arguments and themes in the face of opposition. By giving jurors who are already on your side the tools they need to argue on your behalf, you can extend your presence to the jury room and gain a competitive advantage.
Here are a few tips for crafting a successful closing argument.
Keep It Short. One of the most common criticisms we hear from jurors in post-verdict interviews is that closings are too long. By closing arguments, the jurors are anxious to discuss the case with each other, and don’t want their deliberation delayed any longer. Make sure you are clear and organized; avoid tangents, unnecessary redundancies or rambling. Your closing should not go through the minutia of the case. Instead, your closing should be filled with summaries and short, memorable theme-oriented arguments.
Use Theme-Oriented Phrases. As cliché as it has become, Johnny Cochran’s infamous tagline, “If the glove doesn’t fit, you must acquit,” was an effective theme to help solidify a defense verdict. Arm the jurors with your themes by providing them with short, memorable phrases that are repeated several times. You want these themes to become the answer to any jurors’ opposing arguments. If you have a room full of jurors parroting back your themes, you have done your job well. For example, Juror A says, “But there was a warning label on the package!” Juror B responds “Yes, but this was an accident that never should have happened” (your theme). Or, Juror A says, “But the product was defective!” Juror B responds, “Sometimes accidents happen” (your theme).
Include Summaries of the Evidence. An effective way to condense the closing and arm jurors with your framework is to provide them with concise summaries of the evidence. You can do this verbally, but bullet-point summary charts are even more effective. Jurors like lists, and they are more likely to copy concise lists into their notes than general arguments. For example:
• Remind jurors of the three most important reasons why the plaintiffs failed to prove the accident was a proximate cause of harm to the plaintiff
• Show the jury the eight reasons the defendant is negligent
• Excerpt the three most important points from your witness testimony
• Create a summary of the damages or alternative damage figures
Tell the Jurors What They Have to Do. Solidify your position by helping the jurors do their job, and motivate them with powerful language. Walk them through the verdict form and tell them how they should answer each question. Use assertive language that ties the evidence to the verdict form questions. Too often we hear attorneys argue, “If you feel the defendants were negligent, then you should answer this question ‘yes.’” Instead, phrase your comments more assertively and argue, “You learned that the defendants failed to warn customers, avoided the simple fix, and put profits over safety. This evidence clearly proves that the defendants were negligent. The answer to this question is ‘yes.’”
While this list is not exhaustive, utilizing these tips will improve your closing and will help create advocates in the jury room.
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