Closing Arguments Construction/Labor Law Trial By Lisa M. Robinson Jury Instructions: Labor Law 200 PJI 2:216 Need to decide if workplace was safe or unsafe Required to provide reasonable and adequate protection Duty to worker to make workplace reasonably safe Obligated to correct any unsafe condition May find that unsafe conditions was not a substantial factor 1
Labor Law Section 241(6) PJI 2:216A. The only evidence of the (contractors) s claimed failure to use reasonable care that you may consider in connection with the liability of (the owner) to plaintiff is evidence relating to the claimed violation of Rule. Violation of the said rule will constitute some evidence of the defendant s failure to sue reasonable care.if you find there was a violation of Rule and that such violation constituted a failure to sue reasonable care was a substantial factor causing plaintiff s injuries, you will find for Plaintiff against the (defendant/contractor). If you find that (the contractor) did not violate Rule, or that even though there was a violation it did not constitute a failure to use reasonable care, or, if there is failure to use reasonable care, it was not a substantial factor in causing plaintiff s injuries, you will find for (the contractor) Labor Law 240 PJI 2:217 Absolute Liability Requires all workers involved in the (erection, demolition, repairing, altering, painting, cleaning, pointing,) of a building or structure to furnish or provide specific safety devices, (such as scaffolding, hoists, stays, ladders, slings, etc.). If Defendant breached this duty and that breach was a substantial factor in causing plaintiff s injuries, the state imposes liability whether or not defendant was at fault and whether or not there was any fault on the part of plaintiff to contribute to the injury. 2
General Pointers Confine your argument to the evidence However, you have great latitude to discuss the facts and issues, the reasonableness or unreasonableness of the evidence, the probative effect, or lack thereof, of evidence May also argue facts of common knowledge All evidence deemed admitted without objection may be argued Counsel may draw inferences from facts but may not ask the jury to speculate Pointers for Labor Law Closing Arguments Describe how the work was being performed in a safe or unsafe manner Describe in detail the facts that establish whether your client had authority to direct or control the work. Rely upon the facts in evidence 3
Other Pointers Keep it interesting Even if the trial is lengthy you do not need to regurgitate every piece of evidence that was shown to the jury during the trial. Closing should be concise and explain the questions that the jury will need to answer on the verdict sheet Closing Keep it Interesting Be concise Use visual aids - use a power point or demonstrative evidence and/or actual evidence from the case Do not read the closing argument much more effective and much less boring if you put down the notes and connect with the jury 4
Pointers, continued Use the evidence to your advantage Known which points to emphasize: i.e., safe work practices vs. unsafe practices i.e., authority to direct or control the work, note key facts in that regard Use the Jury Instructions and Verdict Sheet, they are the KEY TO THE CASE. Describe how the instructions they will receive show that the jury should find for your client and walk them through the questions they need to answer in the verdict sheet to reach that result. Empower the Jury Pointers, continued Thank them for their service, the judicial process would not work without them giving their time away from the job or their family to decide this case. Acknowledge the other side, i.e., a finding for the defendant means that the plaintiff will not get any money, but that they took an oath to follow the Court s instructions. Tell them to USE THEIR COMMON SENSE and compare the allegations against the evidence, 5
Damages Do you discuss them There are risks of not talking about damages. If you do not discuss the, the jury may believe an award of $500,000 is great when the Plaintiff s counsel has asked for $2 Million in the closing argument. There are ways to discuss damages even though you believe your defendant client is not liable Closing - Example As a juror your duty is to look at the facts as presented and not be swayed by feelings. By signing the Verdict Sheet in favor of the defendant you have completed your job. You performed your duty. Over the past XX days you have been watching this trial and on the off chance you believe that my defendant client is, in part, responsible for the injuries to Plaintiff 6
Example continued I have only one chance to speak with you, and Plaintiff s counsel gets to speak with you last, because he/she has the burden of proof. So, I need to discuss the issue of monetary damages. If you believe my defendant client bears some responsibility, perhaps 5 to 10%, read the Verdict Sheet carefully and not that it required you to consider damages that would reasonably compensate Plaintiff for his/her injuries. Example continued DO NOT low ball your damages. Pick a number that is grounded in evidence. Refer to the evidence that supports your claimed amount of damages LINK THE $$ TO THE FACTS 7
What NOT TO DO in a Closing Statement Appeal to the jury s sympathy improper if not based upon evidence at trial Appeal to the jury s prejudices and/or negative emotions Comment on a party s wealth or poverty improper Comments about vengeance and sending a message IMPROPER, unless punitive damages are being claimed What NOT TO DO, continued Suggest that the verdict will have a personal impact on the jurors improper Injecting your own personal experiences, knowledge and options improper Personal attached on opposing party and counsel are improper 8
Sample Closing Arguments Sample #1 Sample #2 9
Sample #3 10