Closing Argument: Guiding the Jury and Preserving the Record Miranda Soto Shook Hardy & Bacon 201 S. Biscayne Blvd. Suite 3200 Miami, FL 33131 305-358-5171 mosoto@shb.com
As a Board Certified Civil Trial Lawyer, Miranda Soto has tried more than 50 cases to verdict, including bench and jury trials. She defends corporate and individual clients in high profile and complex litigation matters including complex business litigation and other commercial disputes, professional malpractice and product liability claims. Ms. Soto began her career as an Assistant State Attorney at the Miami-Dade State Attorney s Office in 2002. She prosecuted and supervised hundreds of cases ranging from misdemeanors to felonies. From 2006 to 2010, Ms. Soto was Staff Counsel for Allstate Insurance Company where she managed two legal offices involved in litigation. From 2010-2014, Ms. Soto was a trial lawyer and Partner at a Miami law firm where she handled complex fraud litigation, public policy cases, professional malpractice and admiralty and maritime cases at the state and federal level. She joined Shook, Hardy & Bacon as Partner in 2014 and has been handling Engle tobacco litigation, energy litigation and professional malpractice cases. Ms. Soto is rated AV Preeminent with a judicial annotation reflecting the highest possible rating in both legal and ethical standards by Martindale Hubbell. Ms. Soto is a member of the Federation of Defense and Corporate Counsel (FDCC) which is by invitation only and is limited to approximately 1,000 defense attorneys nationwide.
Closing Argument: Guiding the Jury and Preserving the Record Table of Contents I. Introduction...5 II. Trial Tactics: How to Guide the Jury...5 A. Teach the Jury...5 B. Step Away from the Podium: Keep It Moving...5 C. Don t Rush It: Be Methodical...6 D. Paint a Mental Picture...6 E. Walking the Jury to the Edge of the Cliff...6 III. Improper Arguments and Objections: How to Preserve the Record...6 A. Improper Arguments...7 B. Objecting...7 IV. Conclusion...7 Closing Argument: Guiding the Jury and Preserving the Record Soto 3
Closing Argument: Guiding the Jury and Preserving the Record I. Introduction Closing arguments are often glamorized in entertainment as a pivotal, groundbreaking moment in a case, where the lawyer states a catchy slogan that influences the jury to render a verdict in favor of his or her client. While all closing arguments are not filled with theatrics or end in if the glove doesn t fit, you must acquit, they remain an important process in guiding the jury to render a decision. In Herring v. New York, 422 U.S. 853 (1975), the Supreme Court described a closing argument as a basic element of the adversary factfinding process You ll generally hear that closing arguments are reserved time to discuss the jury instructions, recap evidence heard at trial, and request relief for your client. However, a skillfully done closing argument is an opportunity to teach, guide, and paint a mental picture for the jury. A closing argument that provides context and emphasizes evidence heard at trial can guide a jury to render a favorable verdict, even if done without glitz and glamour. This article presents trial tactics for an effective closing argument that reinforces jurors perspective and factual understanding of the case. Additionally, this article briefly cautions against common improper arguments made during closing arguments, to ensure counsel veer away from making these types of arguments, but also to alert counsel to object to these improper arguments. Lastly, this article addresses how to preserve the record if an improper argument is made, which may require more than an objection depending on the jurisdiction. II. Trial Tactics: How to Guide the Jury A. Teach the Jury After days, weeks, or months of trial, the jury is inundated with information from both sides. Rather than using closing arguments as a chance to wrap up the trial, think of closing argument as an opportunity to teach, rather than lecture, the jury. The most effective closing arguments are ones that contextualize and emphasize the evidence to the jury. By the point the jury is ready to hear closing arguments, the members or the jury have been subjected to a wealth of information; from opening statements, to direct examinations, to cross examinations. The jurors are swamped with the evidence to piece together a verdict, and it s the lawyer s job to teach them how to do that. From the statement a witness gave on the first day of trial to a concession reached on the last day of trial, closing arguments give counsel the opportunity to tie these pieces of the puzzle together and remind the jury of evidence that it might have forgotten about, especially in long, complex trials. By putting evidence in context for the jury and deemphasizing unfavorable evidence, the jury will have a better understanding of your client s narrative. Additionally, closing arguments is the time to teach the jury the law. Whether counsel uses jury instructions or a statute as the basis to teach the jury, it s important that counsel uses closing argument as an opportunity to explain the law and how it applies to the evidence heard throughout trial. B. Step Away from the Podium: Keep It Moving It s also important to bear in mind that throughout the course of the trial, the jury s attention and patience may be wearing thin. Additionally, in this day and age, jurors likely are not starting off with a large Closing Argument: Guiding the Jury and Preserving the Record Soto 5
attention span to begin with. In a 2015 study, Microsoft Corporation found that the average human has an eight-second attention span. An effective method of teaching the jury and keeping its attention is to create movement in the courtroom. By stepping away from the podium, jurors are forced to follow the lawyer around the courtroom, rather than staring at the podium and potentially zoning out. Additionally, intentional movement can be used to help emphasize points of an argument, such as taking a step toward the jury when making a strong point, using demonstrative aids, and writing out favorable portions of the jury instructions on a board or projector for the jurors to view. C. Don t Rush It: Be Methodical Implied in the name, a closing argument is the last plea counsel can make to the jury but that does not mean counsel should rush to get an entire summary of the trial out, recounting as much information as possible. Given jurors limited attention span, a long-winded speech is not going to keep their attention. Instead, breaking the information down with a controlled pace and methodically walking the jury through the case will help the jury digest the information. This can be done through the use of central themes. Strategically planning a closing argument around central themes of the case and harping on those themes, along with the evidence supporting them, will assist the jury in linking the arguments and the evidence. D. Paint a Mental Picture We ve all heard that Golden Rule, while differing from state-to-state, is improper, but you do not need to evoke the Golden Rule to help a juror visualize and understand your client s perspective. Effective closing arguments paint a picture to the jury and set the scene for the jurors to visualize your client s argument, without asking them to put themselves in your client s position. Counsel can use a descriptive analogy, anecdote, fable, or parable to connect the arguments being made to a more relatable concept to the jury members. E. Walking the Jury to the Edge of the Cliff Many see closing arguments as the last chance to convince the jury to render a favorable verdict for their client, and those lawyers will say whatever they can to convince the jury to do so in other words, they push the jury off the cliff. An effective strategy is not to push the jury, but to guide them to the edge of the cliff and let them decide to jump themselves. Instead of aggressively telling the jury what to do and why they should do it, a closing argument should prepare the jury with the tools needed to conclude for themselves that your client should prevail. To be clear, this is not to suggest that a lawyer should not request relief at the end of the closing argument or explain the jury instructions. In fact, a lawyer should clearly explain the law at hand, the jury instructions, and request relief when teaching the jury. However, the lawyer should also guide the jury through the law as applied to the evidence presented and assist the jury in reaching a verdict, rather than forcing them toward it. In other words, the lawyer s job is to guide the jury to the cliff (by contextualizing and emphasizing the evidence, teaching the jury the law, and painting a mental picture), but allowing the jury to decide to jump for itself. III. Improper Arguments and Objections: How to Preserve the Record It is crucial to deliver an effective closing argument before the jury deliberates, and the above tips are a few tactics to enhance a closing argument. However, because closing arguments carry so much weight, it is 6 Trial Tactics March 2017
similarly important to avoid improper arguments by keenly listening to opposing counsel s closing argument to object to any improper arguments being made. Additionally, it is important to be aware of jurisdictional requirements for preserving an objection for appeal, as some states have specific procedures to follow for objections in closing arguments. A. Improper Arguments A jury is instructed to render a verdict based on the evidence presented. Comments by counsel that attempt to deviate the jury from its obligation are improper. In a closing argument, counsel may argue based on the evidence presented at trial and reasonable inferences made from the evidence. See United States v. Hernandez, 218 F.3d 58, 59 (1st Cir. 2000), cert. denied 531 U.S. 1103 (2001); see also United States v. Ramirez- Lopez 315 F.3d 1143, 1156 (9th Cir. 2003); see also Whittenburg v. Werner Enterprises Inc., 561 F.3d 1122, 1127 (10th Cir. 2009); see also United States v. Herring, 955 F.2d 703, 710 (11th Cir. 1992). It is improper, albeit not necessarily reversible error, for counsel to make arguments based on items not in evidence or reasonable inferred from evidence. See id. To name a few examples, this includes when counsel: (1) explicitly references items not in evidence, (2) testifies in closing argument, (3) vouches for the credibility of a witness, (4) personal attacks to discredits a witness, (5) attacks opposing counsel for bringing a case or defending a case, (6) invokes the conscience of the community, or (7) tells the jurors to send a message in a non-punitive damage portion of the trial. See Robert E. Larsen, Navigating the Federal Trial (Thomson Reuters 2016) (providing case law on common improper arguments in closing argument in chapter 13). B. Objecting When an improper argument is made during closing arguments, counsel must object to preserve the record. However, it is important to check jurisdictional rules, as some jurisdictions require more than a mere objection. For example, to preserve an improper argument for appeal in Texas, counsel must show: (1) an improper argument was made during closing argument; (2) the improper argument was not invited or provoked; (3) the comment was properly objected to, or preserved by another predicate; and (4) the comment was not curable by an instruction, withdrawal of the statement, or by reprimand of the judge. See PopCap Games, Inc. v. MumboJumbo, LLC, 350 S.W.3d 699, 721 (Tex. App. 2011). In Florida, counsel must make a contemporaneous objection. See Companioni v. City of Tampa, 51 So. 3d 452, 453 (Fla. 2010). If the objection is sustained, the party must motion for a mistrial by the end of closing arguments, and at the latest, before the jury begins to deliberate. See R.J. Reynolds Tobacco Co. v. Grossman, No. 4D13 3949, 2017 WL 34572, *2 3 (Fla. Dist. Ct. App. Jan 4, 2017). Without moving for a mistrial prior to the end of closing arguments, the improper argument is not preserved for appeal and is subject to a stricter standard of review. Id.; see also Murphy v. Int l Robotic Sys., Inc., 766 So. 2d 1010 (Fla. 2000). Because the case law that directly impacts whether an improper argument is preserved varies by jurisdiction, it is important to check the proper procedure within the jurisdiction you practice. IV. Conclusion A closing argument is more than just a recap of the trial; it is an opportunity to guide the jury to a favorable verdict. By teaching the jury, rather than lecturing it, counsel can better contextualize evidence heard throughout trial and also emphasize key pieces that might be important for the jury to reach a verdict. Rather than rushing through the evidence the jury heard, counsel should remain methodical and argue the Closing Argument: Guiding the Jury and Preserving the Record Soto 7
important evidence in an orderly fashion to the jury, using movement in the courtroom, to ensure the jury is digesting the information. Additionally, painting a picture for the jury, whether through an analogy, anecdote, or descriptive detail of the case, can assist the jury in relating to your client s argument. Closing arguments are the last statements the jury will hear before deliberating and potentially returning a verdict. Therefore, just as it is important to deliver an effective and moving closing argument, counsel should remain cautious to listen to opposing counsel s closing argument to ensure no improper arguments are being made that could taint the jury s verdict. In addition to objecting to any improper statement, counsel must follow any special procedures within the jurisdiction of the trial to preserve the record for appeal. 8 Trial Tactics March 2017