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Seeing the Forest Through the Trees: Closing Argument and Jury Instructions

July 20, 2011 | By | , ,

DeNovo, August 2010

In 1950, Max Klein and Dan Robbins invented and developed the widely popular paint-by-number kits. These kits introduced everyday people to the unfamiliar world of artistic expression by providing them with the precise roadmap and tools to produce magnificent works of art. Previously, this feat was inaccessible to a large segment of the population due to the level of talent and sophistication required. But with paint-by-number kits, it was no longer necessary for amateur artists to understand the complicated world of color mixing and technique. Instead, they were provided with simple “shortcuts” that allowed them to produce a work of art they could feel good about.

Closing argument is like a paint-by-number kit. Similar to the amateur artists of the 1950s who lacked painting talent and knowledge, jurors often lack the professional background and industry tools to sort through the complex information and legal instructions they are bombarded with over the course of a trial. Jurors have not studied law and are not allowed to research case law when uncertain about the meaning of a word or phrase. And the human brain is simply not programmed to accomplish the task that is requested of jurors in the manner often expected. For example, jurors are provided a fraction of the time given to Seeing the Forest Through the Trees: Closing Argument and Jury Instructions by Thomas M. O’Toole, Ph.D., and Jill Schmid, Ph.D. attorneys and judges to make sense of a vast amount of case-related information.

To compound this issue, research in behavioral neurology has demonstrated that the human brain is incapable of processing more than seven pieces of information at any given moment. Additionally, studies on retention rates show that after three days, humans retain only 10 percent of the information verbally presented. Consequently, attorneys can expect that, by the time for closing arguments, jurors are overwhelmed and underprepared for what will take place in the deliberation room. This means the burden lies on the attorney to provide jurors with the proper tools for sorting through the vast amount of case facts and effectively arguing for his client during deliberations. Like paint-by-number kits, an effective closing argument can provide jurors with the shortcuts to accomplish the task at hand, while still providing jurors with confidence and psychological satisfaction. With this in mind, here are 10 tips for developing a persuasive closing argument.

1. Entertain your audience.

Like it or not, the human brain takes a break roughly every 10 minutes. There is nothing you can do to stop it. It happens, and the burden is on you to recapture jurors’ attention. Variety in the style of presentation is one of the simplest ways to accomplish this. Simple, periodic shifts from PowerPoint to video clips to exhibits on projectors and graphics printed on large boards in the courtroom cues the neurons in the brains of your jurors to refocus on, and make sense of, these environmental changes.

2. Organize with transitions.

If jurors’ brains are going to demand a break, attorneys can take control of the process by providing them structured transitions. One attorney we
worked with set five colored file folders at his table during his closing argument, each representing one of the five key issues he would discuss. When finished with one issue, he would close the file folder, walk back to the table, exchange it for the next, and return to the podium to begin discussion of the new issue. Not only did this provide jurors with brief mental breaks, it effectively structured his closing argument to tell jurors when the discussion of evidence and testimony relevant to one topic began and ended, thereby making it crystal-clear which evidence was relevant to which issue.

3. Walk through the verdict form.

Show jurors exactly how they should fill out the verdict form. Jurors who are motivated to serve as your advocates in the deliberation room must know the path to a favorable verdict — which is not always clear with special verdict forms containing numerous questions — and may not read or fully understand the written instructions. This also provides you with the opportunity to make it very clear which evidence is relevant to an issue, such as negligence as opposed to proximate cause.

4. Identify key jury instructions.

Legal terminology can often be a significant stumbling block for jurors during deliberations, especially when the everyday use of a term varies from the legal use of the term. In other instances, the lack of familiarity with a legal term can leave it wide open for interpretation. In a recent mock trial, mock jurors inaccurately equated “proximate cause” with “contributing factor” when they considered the instruction: “There can be more than one proximate cause.” This effectively lowered the burden for the plaintiffs. Attorneys can prevent adverse interpretations and uses of legal instructions by identifying key instructions and explaining to jurors how those instructions should be used to navigate the verdict form.

5. Identify key exhibits.

If everything is important, nothing is important. It is highly unlikely that jurors will sort through all of the exhibits sent back to the deliberation room, especially in cases where there are hundreds or thousands of exhibits. That presents attorneys with two options: let the jurors decide for themselves which exhibits are most important or do the work for them and identify the key exhibits that will lead them to the verdict that favors your client. One of the most effective closing arguments we have seen is one in which the attorney said to jurors: “There are only six exhibits you need to look at in deliberations.” He then proceeded to walk the jurors through each of those exhibits as the jurors took careful notes.

6. Call out key testimony.

As previously indicated, jurors will recall about 10 percent of information that is verbally presented. One way to overcome this hurdle is to provide jurors with visual “call-outs” of the trial transcript, which is most easily accomplished through PowerPoint. This refreshes jurors’ memories and ties the testimony to specific verdict form questions. (Of course, this requires that the trial transcripts are available and a member of the trial team is assigned the task of tracking the key testimony.)

7. Connect the dots.

With the benefit of having worked on a case for months, if not years, attorneys often take for granted the ease with which they understand how and why certain evidence or testimony speaks to a particular verdictform question. However, this connection is not always apparent to jurors, even after weeks or months of trial. Jurors are bombarded with tremendous amounts of information over the course of the trial, often without knowing what the verdict form questions and jury instructions will be. Asking them to determine on their own which evidence goes with which verdict question is akin to asking someone to complete a puzzle without providing the picture on the front of the box.

8. Provide comparisons on the burden of proof.

Any trial comes down to what has been proven. Each side presents their evidence and testimony, and jurors are left to determine whether the various evidentiary burdens have been met. Rather than leave this determination to jurors, simply show them. Plaintiffs and defendants alike can benefit from simple visual comparisons of what was required to be proven by law versus what was actually proven. This can be as simple as two columns (what needed to be proven versus what was actually proven) with bullet-points summarizing (ideally in sound-bite form) the key points on each. Plaintiffs want to emphasize how they have exceeded the burden of proof, and defendants want to demonstrate how plaintiffs have failed to fulfill their burden.

9. Identify the errors and implications of opposing counsel’s theory of the case.

Jurors render verdicts they find psychologically satisfying. Outlining the implications or errors associated with the opposing side’s theory of the case in comparison to your own can decrease juror motivation to find in favor of the other side. For example, in some cases jurors have found for defendants in patent inf ringement cases where the infringement was obvious, but jurors were concerned about how a plaintiff verdict might create a monopoly or eliminate a higher-quality product.

10. Recommend a process for conducting deliberations.

There are a variety of ways in which jurors can approach the deliberative process. Two primary approaches consist of a verdictdriven process, in which jurors organize deliberations by walking through each verdict form question in order, and an evidence-driven process, in which jurors begin deliberations with an open-ended discussion of the case. A procedural approach, such as the verdict-driven process, can reduce the influence of emotional elements of the case as well as rogue jurors. But keep in mind this may not always be in the best interest of your particular client.

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