Litigation Strategy

What I Learned from Jury Duty About Closing Arguments

This is the final of a four-part series (part I, part II, part III) by guest-blogger and attorney Tim Hallahan:

Earlier this year I sat as a juror on a five-week murder trial.   Here are some of the lessons I learned from debriefing my fellow jurors and from my own experience as Juror #101.

  • Provide a roadmap of your closing. People aren’t used to getting their information from long lectures or sermons anymore.   To keep jurors attentive and focused throughout your closing, give them an outline at the top and then remind them where you are in your presentation at each juncture.  PowerPoint can help.  Enumeration can too—e.g.,  “There are at least eight areas of reasonable doubt in this case….”
  • Stress logic in your closing. Recognizing that the jurors had heard all the evidence and taken extensive notes, both attorneys avoided the common trap of patronizing us with a long, boring recitation of the facts.  Instead, each gave a well-organized, compelling, and logical analysis of what we heard.  The DA did a good job using PowerPoint slides to accompany his presentation, though they were a bit too detailed.   It’s a struggle to listen and read dense slides at the same time. The defense attorney didn’t help his cause by ending his argument with a rambling  reiteration of many of the same jury instructions we’d already heard from the judge.
  • Assist deliberations. As we began deliberations, all we really knew was that we had to select a jury foreperson.  Once that was done, silence descended on the room.  We didn’t know what to do next.  As  solicitous of the jury as judge, lawyers, and courtroom staff had been, no one offered us any suggestion about how to approach our most important task.   The lawyers would have been well served by offering us guidelines in final argument, using the verdict form as a tool.  Suggest the approach you want the jurors to use—they might follow it to your advantage, and they’ll thank you for it.
  • Focus on witness credibility. Credibility came up in various crucial ways: The DA’s lay witnesses, some of whom were in custody, gave scattered, reluctant, and sometimes incoherent testimony, usually in response to leading questions.  Despite all of these problems, however, the information all fit together and hence was credible.  It matched the big picture the DA gave us in his opening. One witness related that he’d been attacked by the defendant in the holding cell after court the day before.  Though this inflammatory incident had no relevance to the case, the DA was able to overcome an objection by saying it went to the witness’s credibility.  That “It goes to credibility” worked so well with our judge (as it does with most judges), illustrates how important witness credibility is to judges and jurors. The defendant chose to testify and made several statements that were completely at odds with documentary and video evidence.  It killed his credibility and his case.  Be sure to prep your witnesses to avoid lying and exaggeration.
  • Be Wary of the Free Narrative. The defense attorney used a “free narrative” approach with the defendant’s direct examination, presumably because he  didn’t want to suborn what he believed would be perjury.  The result was a rambling, unstructured monologue, and a clear signal to judge, opposing attorney, and any lawyers on the jury that the defendant was lying.  Though approved by case law, the “free narrative” isn’t mandated.  It is a drastic remedy to a complex ethical dilemma—you can’t call a witness to the stand if you believe he or she will lie, but a criminal defendant has an absolute right to testify.  Before you use the free narrative, you must know for certain that your client will lie (many say because he tells you he will), and you must read and understand the relevant cases.
  • Focus on your credibility. Legal ethics and trial advocacy move in parallel paths.  You want to be the lawyer the jurors rely on during closing argument and deliberations—the one who makes them say, “If she said it, it must be true.”  All of us agreed that both lawyers demonstrated the honesty and graciousness essential to establishing that kind of credibility.   But there’s more to credibility than just being honest and pleasant.  It also involves preparation, organization, efficiency, and purposefulness in everything you do.  Lacking those qualities, you will be perceived as someone who just doesn’t care.

On preparing your closing argument, check out CEB’s book on Persuasive Opening Statements & Closing Arguments and California Trial Practice: Civil Procedure During Trial, chap 19 (3d ed Cal CEB 1995). CEB’s program Effective Opening Statements and Closing Arguments As Taught By California’s Top Trial Attorneys is available On Demand by streaming video and MP3.

We hope you gained useful insight through this four-part series. Please let us know what you think!

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