The 5 closing arguments in every trial
Best practices for defense counsel
One way to escape the artificial constraints that some lawyers place upon themselves is to look at the trial as a series of closing arguments. Some junctures of the trial are trickier than others (e.g. voir dire), but five general styles of closing arguments can assist in liberating the conservative trial attorney from thinking only ''inside the box." Here are five opportunities to make closing arguments during the trial:
1. Voir dire. Once the venire enters the courtroom, persuasion begins. The art of persuasion involves general demeanor and nuances of conduct - standing up when the jury enters, facial expressions, and interactions among members of the trial team all affect jurors' assessment of your case. The most impressionable and sensitive period for jurors occurs at the very outset, at the start of voir dire. In some courts where counsel is given the latitude to conduct long and thorough questioning, attorney-conducted voir dire can tilt the psychological playing field in ways that are outcome determinative. Arguments can, and should, be woven into voir dire in subtle and unobtrusive ways. Thus, the first arena in the battle for the jury - the initial place in which influence over the jury should be exercised - is in voir dire. Although this is not a recommended time to incur the ire of the judge, it is a critical strategic point at which finely tuned suggestions can serve as subliminal arguments.
2. Opening statements. The second arena is illustrated clearly by this example from the Exxon case. Opening statements represent valuable opportunities for choosing critical points to cross the line and strategically insert arguments. Perhaps objections will be made, but by the time the trial is complete, jurors will have heard so many objections, they will not remember.
Jurors do not add up objections or the judge's rulings on them in order to decide who is "winning." Jurors typically do not even understand why objections are being made, and, as a result, objections frequently are lost in their memories within the morass of legal technicalities that float by them every day in trial. Two considerations are relevant here. The first is to be careful to choose your spots. Although breaking the rules is necessary, there is an optimal region between too much and not enough - like adding spice to a dish or sugar to your coffee. Second, composure and demeanor are of paramount importance. The use of guerilla warfare does not dictate that trial counsel become strident or abrasive. This is psychological warfare and tact, timing, and tone are key weapons in the assault.
3. Objections. The third place for argument is in objections. Although some courts prohibit speaking objections, many do not. Those that do prohibit them seem to compromise continually, and speaking objections still are made even in the presence of admonishments by the court during the heat of battle. In these environments, speaking objections should be made anyway when a strategic emergency presents itself. In courts that do not ban speaking objections, failure to make arguments routinely in front of the jury prevents the persuasion engine from firing on all cylinders.
4. Witness examination questions. Examination of witnesses constitutes the fourth realm of argument. Ironically, jurors often are instructed that the question posed to a witness does not represent evidence, whereas the answer does. In terms of jury psychology, however, the question itself often is more important than the answer because the question is evidence for the juror. Consider the following example in which an expert, John Riley, is being cross-examined:
Q: Mr. Riley, do you know what the tellers CDCFD signify?
A: No, I’m sorry, I do not.
Q: Those were your grades in your first year of graduate school, weren't they?
There is no information here in the answer. The information is in the question. There are countless situations during a trial in which the question occupies jurors’ interests and lodges in their memories - not the answer. The judge can admonish jurors to treat only the answer as evidence, but these instructions are inherently futile and do not alter fundamental principles of juror psychology.
In another jury trial, a small software company sued a telecommunications corporation for fraudulent inducement to enter into a contract. The software company was the only vendor, among dozens of others that offered similar services to which the telecommunications corporation had awarded a contract. However, before the contract decision was made, the principal of the plaintiff software company had offered special "treats" to the telecommunications corporation officers who would sign the contract, including exotic boating excursions to foreign countries and hard-to-obtain tickets to concerts and sporting events. Nonetheless. the jury was left wondering why this particular vendor had been awarded a contract while its competitors had not.
The jury did not assimilate the importance of the personal relationships and corresponding "treats” that led to the award of the contract because the plaintiff succeeded in conveying the false impression that the software company had unique intellectual property that the telecommunications corporation needed and, as a result, was the only software company to receive a contract. These beliefs naturally supported the plaintiff’s position that the telecommunications corporation had fraudulently induced the signing of the contract. Mirror or "shadow"' jury results indicated that the real jury did not piece together the crucial information that the software company had induced the telecommunications corporation to award a contract, not the other way around. Consequently, the lead trial lawyer was advised to ask the principal of the software company in cross-examination, "You got that contract by providing African safaris and football tickets, didn't you?" He responded, " I can't do that.'' When asked why not, he replied, "He [the principal] would just deny it."
As a result, during post-trial jury interviews, the jury made it clear that it never did put together the obvious relationship between the special favors and the awarding of the contract. The jury's large damage award for fraudulent inducement ultimately was based on the supposition by jurors that the software company was somehow ''special" in the eyes of the telecommunications corporation because of its intellectual property, when in reality there was nothing unique about the software at all.
Again, the "evidence" is in the question, not the answer. It would not have mattered whether the principal denied the significance of the special favors given to the telecommunications corporation's officers. Jurors at the time did not have enough facts to conclude that the inducement to enter into a contract was instigated by the plaintiff, not by the defendant. The question would have implanted this critical information in jurors' minds, causing them to decide for themselves who induced whom in this relationship. The trial attorney in this instance assumed that the jury would remember the answer, but, on a psychological level, the jury needed to hear the question. Moreover, the refusal even to ask the question incorrectly presupposed (apparently) that the jury would be required to or simply would accept at face value a naked denial by the witness. Of course, the opposite is true. NLRB v. Walton Manufacturing Co., 369 U.S. 404 (1962).
When witnesses are on the stand, jurors are typically struggling to connect the dots in the case. There is so much information in contemporary litigation that the map coordinates must continually be supplied to jurors, from voir dire through witness examinations and all the way to the very end of trial. The text of the queries from a key witness examination should read very much like the actual closing argument at the end of the case, complete with suggestions as to how the evidence should be construed and what its significance truly is.
5. Closing arguments. By the time of the actual closing argument, jurors often have made up their minds about the case. From this vantage point, the impact of the preceding four areas of "argument" can be seen as pivotal: Because jurors' minds are largely closed by the concluding portion of the trial, the earlier forms of argument must be effective.
Final arguments typically are used by jurors only to buttress their already existing views of the case; jurors are not converted by closing arguments, but they do store ammunition for their subsequent deliberations during this phase of the trial. As a result, all the lawyer can do at this point is to ''arm" the jurors to be able to hold out during the deliberation process. Suggestions to defense litigators to make arguments in front of the jury during trial frequently are met with responses such as, "We'll have to save that for closing argument." Jurors generally do not make decisions at this juncture in the case. Every trial has a window of opportunity for persuasion. By the time of closing arguments, this window often is closed. The mind of the juror is like a drawbridge on a castle: Once the bridge starts to rise (well before the end of trial), there is no longer a means to enter.
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