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Should You Save Something for Your Closing?

57277978Although it may be tempting to cover everything during cross-examination, there are situations in which it’s better to save something for your closing argument. In fact, it’s a time-honored rule among some litigators to always save something for your closing. But that strategy can be risky, too.

Here are some reasons to limit your cross-examination and save something to support your closing argument:

  • If a hostile witness has made a damaging admission, you don’t want to highlight it during the trial, for fear that it will give your adversary a chance to explain it away or otherwise repair the damage.

  • Some testimony may be ambiguous, and you may not be able to improve it by detailed examination. This is especially true if the other side bears the burden; you should leave ambiguous testimony alone and argue about its significance in closing.

  • Juries prefer to work things out for themselves. Instead of explaining in detail (even during closing argument), count on a juror shouting “Eureka!” during deliberations, discovering the point on his or her own, and bringing the rest of the jury along.

  • Jurors may be insulted if obvious points are made overly explicit.

Generally, if you’re able to paint your main themes with bold strokes during cross-examination, don’t hesitate to save the details for closing argument. Nor should you strain to develop complicated arguments through cross-examination, because efforts to get hostile witnesses to admit to your complicated theories of the case usually fail dismally.

But even though saving something for your closing has merit, only rarely should it limit your cross-examination. Waiting could leave you arguing to a closed mind: Most jurors have their minds at least halfway made up by the time closing argument begins, and you want their initial inclination to be to vote your way. So if the true strengths of the case are saved for closing argument, it may be too late.

Also, research on jury decision-making makes it increasingly apparent that attorneys need to present their main points simply, clearly, and repeatedly. A juror is more likely to accept a statement if he or she has heard it at least three times: once during opening statement, once during testimony, and again during closing argument.

In a long trial, if you don’t make some of the important points early, the jury may preliminarily decide that your client doesn’t have a case and thus not pay enough attention to your closing to hear your point.

Learn more time-honored rules of cross-examination and when to break them in CEB’s Effective Direct and Cross-Examination, chap 4. And for expert guidance on all aspects of your closing argument, turn to CEB’s book Persuasive Opening Statements and Closing Arguments and CLE program Effective Opening Statements and Closing Arguments As Taught By California’s Top Trial Attorneys, available On Demand.

Other CEBblog™ posts on cross-examination:

© The Regents of the University of California, 2016. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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