Lawyers Journal

Closing argument: winging it?

The last words a lawyer utters in trial before the jury retires to deliberate emerge in closing argument. On the theory that the last word is the most important, closing argument arguably should be the most important element of trial, or at least the most important contribution the attorney him or herself can make there. If this is so, how we prepare for closing argument and how we deliver it are important questions to answer … or perhaps more directly put, important skills to sharpen.
For years, however, I did not give closing arguments quite their due. This was not for any lack of concern; rather for lack of time. The problem is closing argument always falls at a bad time during trial. Preparation for closing argument must occur simultaneously with the preparation of jury instructions and post-trial motions and/or oppositions. These also are critical steps in a trial that cannot be ignored or as easily delegated to second (or third, fourth or fifth) chair as we might hope.
Closing argument also suffers from the infirmity of requiring, at least, a fairly thorough review of the record, that is, a distillation of all the evidence that supports your position, organized in a persuasive way for the jury's benefit. If closing argument took all the energy of the 90-second closing arguments we see week in and week out on lawyer T.V. programs, then there would be no particular need to consider the issue here. Given the challenges we face in real life, however, how can we get it all done?
For the first couple decades of my legal career, I prepared for closing argument about the same way I prepare for every other serious trial court challenge - doggedly working it out into the middle of the night. Because closing argument may require the summarization and cogent organization of much, if not all, of the evidence presented, for me, at least, my preparation took me even deeper into the night before closing argument.
On the day of closing argument, sometimes with as little as 90 minutes of sleep, what used to happen is I would start slow, then gather momentum, as I "engaged my material." Then, I would get up to speed just quickly enough to Ohno across the finish line. Of course, I would have to fumble around looking for some exhibit I was sure I put in a particular file at 3 a.m. But, somehow I muddled through. Juries normally liked what I had to say, however disjointed the approach may have seemed.
Then, one day I tried a case with all the above-mentioned distractions at the time of closing argument. But, for whatever reason - perhaps because the judge was more intractable than most and made our jury instruction negotiations all the more taxing, I simply ran out of time to prepare my closing argument in the usual manner. But what to do? I came up with an idea - wing it!
Wing it? Meaning, could I just stand up in front of the jury and ad lib a closing argument, dredging from the recesses of my mind the pertinent evidence from the prior weeks of trial and put it together then and there. Who knew? But at the time, I thought it was worth the gamble.
To be fair, I wouldn't really wing it. I had transparencies made of several key exhibits in the case and prepared to show those to the jury. I also gathered other bits and pieces of tangible evidence (such as transcript pages) that I remembered were exciting at the time. This collection of paper was not at all that comprehensive however. Comprehensiveness would come, I hoped, from the oral linkages I would provide to carry the day.
But how should I present this new approach to the jury? Certainly, I expected my closing argument would be miserable, so I had to reduce the jury's expectations fast. But how?
Here is what I said: "Ladies and gentlemen of the jury, I am delighted to have this opportunity to speak to you directly once again. This is the point where I would normally deliver to you a 'closing argument'. But I'm not going to do that this afternoon, and I'll tell you why. Over the years, after trying a case, I usually sprint out into the hall before the jurors disperse and ask them what did they like the most about the trial. I secretly want them to say, 'the lawyer for the prevailing party [you]', or something the lawyer for the prevailing party cleverly did. But here's what always seems to come back instead: 'We were particularly impressed with witness X or document Y. [Or,] we didn't much like the other side's expert.'
"Then, I press: 'What about the lawyering? Did you notice anything about the lawyering that you particularly liked?' One juror (usually an older one), rather patronizingly, will say, 'Sonny, you did a very good job.' - a figurative pat on the head. My grandfather used to say the same thing to me when I was little, and I always doubted he really meant it, so I press further: 'What did you think of the closing argument?' He responds, 'We had our minds made up before the closing argument. Frankly, it took too long.' I then go home, with my victory, but a little dejected - all my last-minute scrambling and fatigue unnoticed and unappreciated."
Now, speaking directly for the benefit of this jury I continued, "This is my chance to deliver a closing argument to you, but when this trial's over and we go out in the hall, you're likely to tell me the same thing other juries have told me. Why should I break my neck to deliver a closing argument if you're just not going to appreciate it and you're not going to need it? And if you're like the juries I've seen before, you're not going to appreciate it. So I'm not going to do a closing argument!"
"However, like you, I have watched this case unfold over the last several weeks and I do have a few thoughts I would like to get off my chest. Permit me… "
Then, I commenced my closing argument. However, that closing argument was delivered a capella. It was presented as if I was crossing a rapidly moving stream driven by a generator controlled by my adversary. It felt like I was jumping from rock to rock in that stream - from document to document, to stay dry. If I stumbled and fell, I knew opposing counsel would grind me up somewhere downstream. But I did have one thing going for me. I was into the trial. I was one of the most, if not the most, involved person in that proceeding. Earlier, I had prepared substantial legal arguments, examination of witnesses, determined which documents we would use and made countless other strategic decisions. The closing argument I delivered was nothing more than a closed book test and not even all that closed. I passed real closed book tests in my earlier life. Why couldn't I pass this one too?
Well, the experience was a success. I delivered my "remarks" in a relatively smooth manner - in that I read nothing, and all along was being graded on a lower curve … a few slips could be readily forgiven. Remember, I told the jury this was not my closing argument, just my comments.
The approach made a few jurors laugh, but they all seemed to listen more attentively, and importantly, believed what I was saying. When the trial was over, the verdict was delivered. The jury had seen things just the way we had. Then, after the jurors migrated into the hall, I bounded out to ask my questions. Two or three jurors laughingly said that my closing comments were, though still not necessary, nonetheless well done.
Had I hit upon a formula that all could apply with great success? Hmm. Well, read on.
In my next trial, with the same closing argument approach, the jury found against my client. Apparently, however, I managed to persuade the judge with my "remarks," as he later vacated the verdict and ordered a new trial. Still, the strategy failed. Why? One juror said to me, "We believed your client was a bad guy; otherwise he would not have hired a lawyer as good as you." Please! The best lawyer works transparently. That was not me that day.
Another juror said that my closing argument was "too facile." A third juror said that I delivered my closing argument "too fast." Too fast? In the old days I would muddle through, searching desperately for nearly invisible (transparency copies of) exhibits in full view of the jury, then strain to read my notes written at 3 o'clock in the morning. I was anything but "too fast" then. Sometimes it's better, I guess, to be less prepared, more exhausted, more fumbling, and perhaps as a consequence somewhat more sympathetic in the eyes of the jury.
I am now looking for a third approach to closing arguments. What I described here obviously will not always work. Now, it's your turn.
Eliot G. Disner is a partner in the Beverly Hills, Calif., law firm of Ervin Cohen & Jessup. He is a trial lawyer specializing in complex business matters, including most particularly antitrust and intellectual property law. Disner may be reached at [e-mail edisner]. © Copyright 2002 by Eliot G. Disner. All rights reserved.

©2014 Massachusetts Bar Association