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 well-

prepared!

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 --

Appeal • Step Three:

– 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 --

Appeal Step Four:

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