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Don’t Go There in Your Closing

158997762Closing argument gives you a chance to restate the primary issues, summarize the evidence, and explain the law. You’ve got wide latitude in making your closing argument, but don’t let this freedom lull you—there are some things you just can’t say in your closing.

Although California law does not require you to be absolutely logical in your closing argument, you can’t misstate the evidence or invite the jury to speculate on unsupported inferences. And your personal opinions are never appropriate.

Enjoy the creative freedom inherent in your closing, but steer clear of the following arguments, which constitute misconduct:

  • Arguing for a large amount of punitive damages by suggesting that the money awarded would go to consumer groups. Notrica v State Compensation Ins. Fund (1999) 70 CA4th 911.
  • Arguing inferences for evidence that was admitted for a limited purpose only. Evid C §355.
  • Arguing facts not in evidence or asserting as fact matters within counsel’s personal knowledge. Brokopp v Ford Motor Co. (1977) 71 CA3d 841, 862.
  • Arguing the importance of a court-excluded document and asking jury to draw negative inferences because it wasn’t admitted in evidence. Hansen v Warco Steel Corp. (1965) 237 CA2d 870, 877.
  • Alluding to personal knowledge of a case. Garden Grove Sch. Dist. v Hendler (1965) 63 C2d 141.
  • Arguing facts not justified by the record and suggesting that the jury could speculate about unsupported inferences. Cassim v Allstate Ins. Co. (2004) 33 C4th 780, 796.
  • Referring to verdicts of other juries. Loth v Truck-A-Way Corp. (1998) 60 CA4th 757, 767.
  • Referring to judgments given in similar cases. Salgo v Stanford Univ. Bd. of Trustees (1957) 154 CA2d 560, 579.
  • Expressing a personal belief in the credibility of a witness. People v Roberts (1966) 65 C2d 514, 520, modified on another point in In re Roberts (1970) 2 C3d 892.
  • Referring to a party’s wealth or poverty, unless it’s directly relevant to an issue in the case, such as punitive damages. See e.g., Du Jardin v City of Oxnard (1995) 38 CA4th 174.
  • Requesting that the jurors place themselves in the “plaintiff’s shoes.” Beagle v Vasold (1966) 65 C2d 166, 182 n11.
  • Appealing to prejudice based on a party’s race, religion, ethnicity, or nationality when it’s irrelevant to the issues. See Kolaric v Kaufman (1968) 261 CA2d 20, 27.
  • Appealing to the sympathy or prejudice of the jury by referring to or disparaging a party’s war record. Dumas v Stocker (1989) 213 CA3d 1262, 1270.
  • Appealing to jurors’ self-interest to persuade them to enlarge or mitigate their verdict. Brokopp v Ford Motor Co. (1977) 71 CA3d 841, 861.
  • Commenting that the defendant is insured against liability, when arguing negligence or other wrongdoing. See Evid C §1155; Neumann v Bishop (1976) 59 CA3d 451, 469.
  • Referring to (on liability issue) settlements between the plaintiff and others on the same claim pending against the defendant. See Shepherd v Walley (1972) 28 CA3d 1079, 1083.
  • Referring to the remarried name of a party’s widow in a wrongful death case. Cavallaro v Michelin Tire Corp. (1979) 96 CA3d 95, 106.
  • Addressing a juror individually by name. Neumann v Bishop (1976) 59 CA3d 451, 473.
  • Implying that if opposing counsel uses inconsistent theories, he or she doesn’t believe in the case. People v Bell (1989) 49 C3d 502, 537.
  • Arguing the income tax consequences of compensatory damages, unless taxes are at issue. Rodriguez v McDonnell Douglas Corp. (1978) 87 CA3d 626, disapproved on other grounds in Coito v Superior Court (2012) 54 C4th 480, 499.
  • Implying that the court endorses one party’s allegations. Cassim v Allstate Ins. Co. (2004) 33 C4th 780, 798.

For everything you need to know about the content of a closing argument, turn to CEB’s California Trial Practice: Civil Procedure During Trial, chapter 19. CEB’s Persuasive Opening Statements & Closing Arguments is another excellent resource with sample transcripts of trial lawyers presenting closing arguments to court and jury. Also check out CEB’s program Effective Opening Statements and Closing Arguments As Taught By California’s Top Trial Attorneys, available On Demand.

Related CEB blog posts:

© The Regents of the University of California, 2013. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

3 Responses

  1. […] have a lot of latitude in making their closing argument, but there are nonetheless impermissible arguments during closing and thus openings for opposing counsel to object. Even if you’re right, […]

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