Like opening statements, defense counsel should strategically organize the closing argument and reduce it to very simple main points. But unlike an opening statement, a closing argument is an explicit argument rather than a narrative containing an implicit argument. Here are five tips for defense counsel’s closing argument.
1. Lead the jurors to understand the law behind a verdict. Review the evidence in a clear, simple, concise way. Just as in opening, you may use visual aids to enhance your effectiveness.
2. Go for juror empathy. You have to evaluate the jurors during the trial and play to their emotions accordingly. What counts is not what was said but what the jurors heard. Personalize the issues and instill the jurors with empathy.
3. Stress the burden of proof. Perhaps the single most important point for the defense attorney to stress is the burden of proof. In the civil context, the plaintiff has the burden of proving by a preponderance of the evidence all of the facts necessary to establish the specific affirmative allegations of the complaint. See Evid C §115. Defense counsel’s closing will benefit from including the language of jury instructions. For example, CACI 200 states:
A party must persuade you, by the evidence presented in court, that what he or she is required to prove is more likely to be true than not true. This is referred to as “the burden of proof.” After weighing all of the evidence, if you cannot decide that something is more likely to be true than not true, you must conclude that the party did not prove it. You should consider all the evidence, no matter which party produced the evidence. In criminal trials, the prosecution must prove that the defendant is guilty beyond a reasonable doubt. But in civil trials, such as this one, the party who is required to prove something need prove only that it is more likely to be true than not true.
When such a level of proof is required (called a “preponderance of the evidence”), the defense should emphasize each allegation that the plaintiff must prove “is more likely to be true than not true.” Closing argument may present an opportunity to hearken back to the plaintiff’s opening statement; specifically, defense counsel should point out those topics that the plaintiff’s counsel promised the evidence would address but didn’t.
4. Consider nixing sympathy for plaintiff. Defense counsel should seek to remove sympathy for the plaintiff as an element in the case by explaining to the jury that sympathy shouldn’t determine a legal outcome. On the other hand, counsel shouldn’t attempt to defuse sympathy if doing so would make him or her appear insincere or heartless.
5. Anticipate plaintiff’s rebuttal. Defense counsel should avoid specific challenges to the plaintiff, because the plaintiff’s counsel has the last word, and a response to such a challenge can be devastating to the defendant. Instead, defense counsel should anticipate the plaintiff’s rebuttal and, while intimating to the jury that he or she can’t anticipate all of the plaintiff’s argument, request the jurors to ask themselves how defense counsel would have responded to the plaintiff’s assertions.
Get more of this expert advice on preparing a closing argument, including an example of how a closing argument develops the argument implied in the opening statement, in CEB’s Persuasive Opening Statements and Closing Arguments, chap 2. And whether you’re a seasoned trial attorney or are preparing for your first trial, take an opportunity to learn from top trial attorneys in CEB’s program Persuasive Opening Statements & Closing Arguments, available On Demand.
Other CEBblog™ posts you may find useful:
- 5 Tips for Crafting a Clear Opening Statement or Closing Argument
- Should You Discuss Damages During Opening and Closing?
- Make Your Opening and Closing Memorable: 4 Memorizing Tips
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