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Object with Care During Closing

57280160Attorneys 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, objecting during a closing may not be a smart move.

One of the most difficult tactical choices to make during trial is whether to make objections, particularly during opposing counsel’s closing argument. Jurors don’t take kindly to objections when another attorney is delivering closing argument, so don’t interrupt except for the most egregious violations.

In fact, objections often drive the offending evidence further into the jurors’ minds, even when the objections are sustained and the judge admonishes the jury to disregard the improper statement.

If you’re going to object during closing argument, make sure it’s on one of the following grounds:

  • refers to facts not in evidence or from counsel’s own knowledge;
  • calls for speculation on unsupported inferences;
  • refers to other verdicts;
  • refers to counsel’s opinion of a witness’ credibility;
  • refers to the wealth or poverty of a party;
  • appeals to the jury’s prejudice through race, religion, nationality, or war record;
  • appeals to the jury’s self-interest to enlarge or reduce the verdict;
  • refers to the defendant’s insurance;
  • refers to a prior settlement;
  • addresses jurors by name;
  • refers to inconsistent theories and suggests that opposing counsel does not believe in the case;
  • refers to income tax consequences of damages award;
  • refers to a collateral source; or
  • refers to the remarried name of a party’s widow in a wrongful death case.

Depending on how flagrant opposing counsel’s comments are, you can take either a relatively gentle approach or bring in a sledgehammer, i.e.,

  1. you can interrupt with an objection, specifying the grounds, and ask the judge to give the jury a cautionary instruction, or
  2. you can move for a mistrial if you believe your client’s right to a fair trial has been irreparably damaged.

The decision to object should always be deliberate, not reactive. Don’t simply police your opponent’s closing argument for minor or unintentional improprieties.

If you need to object, request that it be made outside the jury’s presence. Ask the judge to tell the jury that argument on the merits of an objection concerns applicable law, not facts, so that the jury won’t feel left out of the discussion.

When objections are sustained, there’s a double victory: the offender gets “off track” and the jurors lose confidence in what’s being said because the court has ruled that it was improper. But if the objections are overruled it’s a double loss: the objection serves as an unnecessary interruption and counsel appears to be trying to suppress something from jurors’ consideration. This gamble is why the most experienced attorneys rarely object during closing argument.

Full discussion of each ground for objection can be found in CEB’s California Trial Objections, an essential resource for any attorney headed into trial. For practical tips on all aspects of closing arguments, turn to CEB’s California Trial Practice: Civil Procedure During Trial, chapter 19. Also check out CEB’s program Effective Approaches to Opening Statements & Closing Arguments, available On Demand.

Other CEB blog posts you might find useful:

© 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.

4 replies on “Object with Care During Closing”

Great post. Read it just before closing arguments in a bench trial.
One note: I believe that in CA courts, counsel is allowed to comment on a witness’ credibility in closing. In Federal court, you are not allowed to do so.

Thanks, Brian! In People v Roberts (1966) 65 C2d 514, 520, the California Supreme Court held that counsel may comment on a witness’s credibility in light of all evidence, but counsel may not say “I believe him.”

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