Closing Argument Tips for Defending the Employment Case.Leonard Court In employment defense cases, you have to overcome the jury's natural empathy for the plaintiff. So your parting shot has to be your most effective. CLOSING ARGUMENT is the culmination of the entire trial. Closing argument is that critical juncture when the advocate focuses the testimony and exhibits for the jury so that they will want to find for the client. No single style is right for every attorney. Each lawyer must develop his or her own approach to doing a persuasive closing. However, certain guidelines are helpful inbecoming a successful closer. This article presents some suggestions concerning how to structme a successful closing argument for the employer when itis being sued by a former employee for discrimination or wrongful discharge. GAINING USEFUL INFORMATION BE FORE lhe CLOSING Each judge and each Leonard Court is a member of the firm of Crowe & Dunlevy, in Oklahoma City. 29
30 The Practical Litigator May 2002 One of the first goals of a good closing for the employer is to neutralize the sympathy for the plaintiff. An effective way to do this is to remind the jury that a trial works only if the participants adhere to the oath that they have taken. courtroom has a unique character. Knowing those characteristics before the case begins is critical. Know the Courtroom VISit the courtroom where the case will be tried before the trial begins. Test the acoustics to see whether you must stay close to the podiwn's microphone or whether you can be heard clearly without it. Check to see if the podium is moveable or fixed inits location. Most podiums face the judge and witness, butmaynot face the jury. Ifyou rely heavily upon notes during your closing, then be sure that the podium can face the jury and that you have enough. table space to use for deposition transcripts or exhibit copies which you intend to use. If you plan to. use electrical equipment such as an overhead projector or power point, then be sure that the courtroom arrangement is compatible with your needs. Know the Judge Knowing the judge's rules and idiosyncrasies is equally as important. First, find out what time limits the judge imposes on closing argumentbefore the trial begins, so thatyoucan tailor yourclosing tothatrestriction. Second, explore how much latitude the judge gives you to move about the courtroom duringyourclosing. More and more judges are restricting the attorneys to the area ofthe podium. You do notwant the embarrassment of having the judge interrupt you at a critical juncture in your closing to inform you-and more importantly the jurythat you are violating the court's rules. Third, find outwhether the judgeinstructs the jurybefore or after closing argument. The answer to this question affects how you incorporate the judge's instructions into your closing. If the judge instructs before closing, you can refer to the exact wording of the instruction. However, ifthejudgeinstructs after closing, then youmay only tell the jury that you anticipate that the judge will instruct in a certain manner. THE CRITICAL OPENING MINUTES The plaintiff's lawyerhasjustfinished paintingyour client as the evil corporate employer who has fired his poor, innocent, hard-working client for improper reasons. Now, you have only one opportunity to gain the jury's attention and sway their vote toward your client. The firstfew minutes are critical to achieving these objectives. One JlThank You" Is Enough Far too many attorneys waste valuable time at the start of their argument reciting the same mantra that the judge and opposing counsel have already chanted. Defense counsel does not need to remind the jury that your comments are argument and not evidence. Why. downgrade the importance before you begin? Spending countless minutes thanking the jury for their service accomplishes little. Simply echo the gratitude already discussed by the judge and plaintiff's counsel and move quickly to your argument..".';
Closing Argument 31. THE "SECOND" OATH One of the first goals of a good closing for the employer is to neutralize the sympathy for the plaintiff. An effective way to do this is to remind the jury that a trial works.only if the participants adhere to the oath thaf they have. taken. The need for a witness to tell "the truth, the whole truth and nothingbutthe truth" is obvious. However, that is not the only oath administered in a jury trial. As the jury is empaneled, they also take an oath. They agree to decide the case based upon the evidence, not upon sympathy or prejudice. Remind the jury that our system of justice works only if the jury, like the witnesses, adheres to the oath. Neutralize Sympathy for the Jury After stressing the importance of the jury's oath, move to neutralize the natural sympathy for the plaintiff. Acknowledge that sympathy for the plaintiff is natural. Emphasize how the employer tried to help the plaintiff correct the deficiencies that led to his discharge through counseling and progressive discipline. In a layoff case, acknowledge that good employees sometimes lose their jobs. At the end of this segment, stress to the jury that while sympathy for the plaintiff is natural, the juryhas sworn not to decide the case based upon suchfeelings. GUARDIANS OF THE FACTS Jurors often do not understand that defense counsel gets only one argumentwhile the plaintiff's attorney gets two-the initial argument and rebuttal. While many defense attorneys view this arrangement as a disadvantage, you can effectively use this structure to your advantage. Let thejury Infer a Credibility Problem with Your Opponent's Case Tell the jurors that this is your one and only opporhmity to talk with them during closing. Tell the jurors that this is your one and only opportunity to talk with them during closing. Therefore, you will be unable to correct any exaggerations or misstatements made by your opponent during rebuttal. Therefore, you will be unable to correct anyexaggerations or misstatements madeby your opponent during rebuttal. This must be done in a delicate fashion. Calling your opponenta liar or deceptive casts you as mean-spirited. Instead,.compliment your opponent as an effective advocate for his or her client. Highlight two or three points on which your opponent has attempted to mislead the jury while advocating for the plaintiff. The jurors will then question your opponent's credibility for you, and you will have avoided a direct accusation. Anoint them as "Guardians of the Truth" Now ask thejuryto become the guardians of the truth during your opponent's rebuttal. Tell them that since you cannot reply to the rebuttal, you must rely upon them to guard against misstatements. Anointing the jury as guardians of the truth accomplishes several objectives: First, the jury watches more closely for any exaggerations or misstatements; Second,ifyouropponentis overzealous during rebuttal, thenyourcredibility is enhanced in the jury's eyes; Third, plaintiff's counsel will often depart from the original rebuttal plan in order to reply to the examples of misstatements that you give
32 The Practical Litigator May 2002 Many advocates refer to closing as summation. That is wrong! Closing is much more than merely summarizing the evidence. It is showing the jury why the evidence dictates a judgment in your favor.. the jury. This only serves to underline your point. EXPLAIN TIlE BURDEN OF PROOF Burden of prqof is a concept that is foreign to most nonlawyers. Particularly in discharge cases, many jurors believe that the company must prove that the employee was a bad worker. You must dispel this notionearly in your argument. Be sure to explain the burden in lay terms. As more and more courts are recognizing, using the McDonell Douglas burden-shifting approach only confuses jurors. The judge's instructions hopefully provide the best tool for accomplishing this goal. Focus upon the fact that when all is said and done, the plaintiff still must prove discrimination. HUMANIZE THE COMPANY In an em-.ployment case, the only thing worse than being the big "corporation" is being the "defendant." Never refer to your client as "the defendant" and always refer to the employee as "the plaintiff" rather than by name. As best as you can, humanize the company. Make the case about the supervisors, managers and other decisionmakers rather than about the corporation. Emphasize the impact of the plaintiff's poor performance upon co-workers who had to work longer and harder to make up for the plaintiff's deficiencies. JURIES DECIDE CASES ON THE EQUITIES The key role ofclosing argumentis to help the jury justify its conclusion. Therefore, lawyers must understand that juries try to do the right thing. Understanding this principle leads to certain conclusions about structuring the employer's case and closing argument: First, employment-at-will is a concept for arguing summary judgment, not jury verdicts. A jurydoes notwant to hear that anemployer can arbitrarily fire employees. The jury wants a reason for the decision to terminate someone's job; and Second, stressing the company's attempts to "save" the employee is critical. Juries are more tolerant of a company that appears to have given the employee every opportunity to improve. ARGUE YOUR CASE Every article concerning trial practice stresses the need to have a theme for your case. Deciding uponyour theme early in case preparation is critical. The theme must be more than that your client is innocent of wrongdoing. Ifyour closing argument is defensive, then your client's risk of loss escalates.. LET THE PLAINTIFF LEAVE WITH DIGNI 1Y Many advocates refer to closing as summation. That is wrong! Closing is much more than merely summarizing the evidence. It is showing the jury why the evidence dictates a judgment in your favor. Therefore, argument is critical. However, overzealous argument canbe counterproductive. Remember the goal is to win the case, not to destroy the opponent. In this day of Rambo-style litigation, lawyers often confuse this goal.
Closing Argument 33 Win, Don't Destroy Jurors do nothave to believe thatthe plaintiff is an evil person for the employer to win a verdict. Jurors do not like to hear the plaintiff called a "liar." That term is simply too harsh. Use words like "misstate" or "exaggerate." Find a way to let the plaintiff lose with dignity. For instance, discuss how each of us has trouble admitting our own weaknesses. Persuading the jury that the plaintiff simply cannot acknowledge his or her shortcomings is much easier than persuading them that the plaintiff is a habitualliar. BE FAIR AND ACCURATE For decades lawyers have been told that the jury's perception of the attorney's honesty affects the jury's verdict. Therefore, enhancing your image during closing is important. At least two ways exist to accomplish this goal: First, discuss the evidence within the framework of the judge's instructions. The more the jury identifies the advocate with the judge, the higher the attorney's integrity quotient climbs; Second, acknowledge the weaknesses in your case. Thenexplainwhythey do notmatter. ARGUING DAMAGES As the defendant, one critical issue is how to argue damages. Several approaches are available: Often, I do not argue damages at all. For the defendant to argue damages implies that you did something wrong. Ifmy client has a strong defense to liability, then damages may not be mentioned in closing; Sometimes responding to the plaintiff damages request canbevery helpful-particularlyif the plaintiff's attorney has been overreaching. Today, many people have lost sensitivity to large money figures. We hear about trillions of dollars ofnational debt and it doesn't evenraise an eyebrow. When the plaintiff is seeking large sums for damages, defense counsel must overcome this problem; The best way is to quantify what the money will buy. Tell the jury how many houses or cars the plaintiff is asking to be given. A WORD ABOUT STYLE While the substance ofyour argument is critical, your method of presentation is also important. Talking with the jury rather than at the juryis important. Thus, the use ofnotes should belimited. Neverread your argument to thejury. One way to focus on this goal is to maintain eye contact with jurors. If you are looking at the jury, then you are not reading your notes. Keep your language simple. Only an attorney can turn a "car wreck" into a "vehicular accident," or "intentional discrimination" into "disparate treatment." Use three to four visual aids appropriately. The critical exhibits are the ones to highlight. Do not overuse Powerpoint by putting your entire closing on the screen. CLOSING THE CLOSING Just as you must open crisply, you must end in a way that the jury will remember. Quickly summarize why your client wins. Rather than ending with an anemic "Thank you," tell the jury that the only conclusion that canbe drawn from the evidence is a verdict for the employer. CONCLUSION The closing argument is the employer's one chance to focus the jury on why the employment decision was the correct one. While each attorney must find what works for him or her, hopefully some of the suggestions will help give you the thrill of victory rather than the agony of defeat.
34 The Practical Litigator May 2002 PRACTICE CHECKLIST FOR Oosing Argument TIps for Defending the Employment Case The defendant in an employment case starts out at a disadvantage. But the case doesn't have to end that way. With some preparation and planning, the closing can tip the equities in the defendant's favor. VISit the courtroom where the case will be tried. Test the acoustics, the podium, and electrical equipment such as overhead projectors. Know thejudge. Find outwhat time limits thejudgeimposes on closing argument, howmuchlatitude the judge gives you to move about the courtroom during your closing, and whether the judge instructs the jury before or after closing argument. Remind the jury that our system ofjustice works only ifthey decide the case based upon the evidence, not upon sympathy or prejudice. Neutralize the natural sympathy for the plaintiff, emphasizing how the employer tried to help the plaintiff through counseling and progressive discipline. fu a layoff case, acknowledge that good employees sometimes lose their jobs. Let the juryinfer a credibility problem withyou opponent's case. Highlighttwo or three points on which your opponenthas attempted to mislead thejurywhile advocating for the plaintiff. Thejurors will then question your opponent's credibility for you, and you will have avoided a direct accusation. Explain the burden of proof. Dispel the notion that the company must prove that the employee was a bad worker. As best as you can, humanize the company. Make the case about the supervisors, managers and other decisionmakers rather than about the corporation... Let the plaintiff leave with dignity. Jurors do not have to believe that the plaintiff.is an evil person for the employer to win a verdict. To purchase the online version of this article, go to www.ali-aba.org and click on IIArticles and Forms Online"