Litigation Strategy Trial Strategy

Don’t Do These 4 Things During Your Closing Argument

The permissible scope of counsel’s closing arguments before a jury is broad, but there are limits. Here are 4 things that tread into improper territory.

  1. Making a Golden Rule argument. The so-called “Golden Rule argument” to a jury—that the jury should place itself in the plaintiff’s situation and award what it would “charge” to undergo an equivalent disability—is improper. You make an impermissible “Golden Rule” argument if you urge the jurors to put themselves in your client’s position or to view the case from your client’s personal perspective. See Cassim v Allstate Ins. Co. (2004) 33 C4th 780, 797. And in the federal courts, even an indirect “Golden Rule” argument by plaintiff’s counsel is improper, such as saying: “[I]t’s improper for us to say ‘Put yourself in the plaintiff’s shoes.'” Woods v Burlington Northern R.R. Co. (11th Cir 1985) 768 F2d 1287, 1292, disapproved on other grounds in Burlington Northern R.R. Co. v Woods (1987) 480 US 1, 107 S Ct 967.
  2. Addressing jurors by name. It’s improper to address a juror by name during an opening statement or closing argument. However, doing so isn’t always prejudicial if the statement or argument involves no special appeal to the juror on the merits of the case because of the juror’s sex, occupation, race, or other personal factors. People v Wein (1958) 50 C2d 383, overruled on other grounds in People v Daniels (1969) 71 C2d 1119, 1140.
  3. Quoting individual jurors in an argument to the entire jury. Singling out what one juror said during voir dire is improper. However, it’s not necessarily prejudicial in a particular case. People v Freeman (1994) 8 C4th 450, 517. In People v Riggs (2008) 44 C4th 248, 325, the court held that it was improper for the prosecutor to show a chart with the jurors’ handwritten responses to the jury questionnaire on the subject of the death penalty.
  4. Appealing to jurors as group members. Appeals to jurors as members of larger groups are also improper. For example, in a condemnation case, it was improper for government counsel to urge jurors to consider the case from their own personal perspective as taxpayers (“I submit that if you are going to spend your own money, a hundred thousand dollars….”). People ex rel Dep’t of Public Works v Graziandio (1964) 231 CA2d 525, 533.

Learn more about what’s permissible in closing arguments in CEB’s Persuasive Opening Statements and Closing Arguments, chap 3.  And get expert advice on crafting and delivering effective opening statements and closing arguments in CEB’s program Effective Approaches to Opening Statements & Closing Arguments, available On Demand.

Other CEBblog™ posts on closing arguments:

© The Regents of the University of California, 2019. 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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