Closing Argument Practice Tips Diane Sullivan Weil, Gotshal & Manges LLP 767 Fifth Avenue New York, NY 10153-0119 17 Hulfish Street, Suite 201 Princeton, NJ 08542 diane.sullivan@weil.com
Diane Sullivan is a nationally recognized trial attorney who litigates and tries complex commercial, class action, mass tort, and other cases in jurisdictions around the United States. Recent engagements include securing a complete defense verdict Philip Morris USA, following trial of a federal class action for medical monitoring; obtaining a trial victory for GE after a four-week arbitration of a $1 billion construction dispute; serving as lead trial counsel for Repsol in environmental litigation in New Jersey, relating to pollution of the Passaic River; and serving as lead trial counsel for Toyobo in False Claims Act litigation. Ms. Sullivan is regularly recognized as a leading trial lawyer in publications such as The American Lawyer, Chambers USA, Legal 500, and others. Most recently, she was named one of Law360 s 2015 Trial Aces in its inaugural list recognizing the top 50 trial attorneys in the country.
Closing Argument Practice Tips Table of Contents I. Keep It Interesting...5 II. Use the Evidence to Your Advantage...6 III. You Can Run but You Can t Hide...6 IV. The Jury Instructions and Verdict Form Are Your Friends...6 V. Empower the Jury...6 Closing Argument Practice Tips Sullivan 3
Closing Argument Practice Tips Closing argument is your final opportunity to address the jurors your last chance to make your case by synthesizing and presenting the trial testimony in a way that empowers the jurors to find for your client. You are an advocate and it is your job in closing to convince the jurors of why you should win. While no two closing arguments are the same, regardless of the case, closing is your opportunity to: (1) focus the jury on the primary issues in the case and remind them of their critical role in the process; (2) summarize the important evidence presented during trial in an interesting and compelling narrative that supports your client s position; and (3) explain to the jury how that evidence relates to the verdict sheet. Preparation is essential, but as with any aspect of trial practice, you will develop your own closing style and should keep in mind that attorneys with very different styles can be equally effective. Seasoned trial lawyers will often tell you that while every part of the trial is important, the closing is critical. Below are a few tips to have in your back pocket before addressing the jury one last time. I. Keep It Interesting By the time closing arguments come around, jurors have been sitting through weeks, if not months, of trial testimony. They have spent time away from their jobs, their families, and their everyday lives they are tired. It s your job to keep their attention through what, at times, can be lengthy closing arguments. The closing is your one and only opportunity to bring it all together for the jurors to guide them through the evidence that will help them answer the questions on the verdict sheet. It is critically important that you keep the jurors attention during your closing argument. When permitted, move around the courtroom, be passionate, be engaging make the jurors want to hear what you have to say. Engage them with your voice, your movement, and your use of visual aids. Keep your argument tight. A lengthy trial does not justify a lengthy regurgitation of every piece of evidence the jury heard or saw throughout the trial. Your closing argument must clearly explain the questions the jurors will need to answer and provide a concise overview of the evidence that will allow them to reach your desired answers. Don t let your presentation get sidelined by issues that are not germane to the verdict sheet. Let s the verdict sheet guide your presentation of the evidence and allow you to keep your argument concise. Visual Aids. When permitted, consider presenting your closing argument accompanied by a power point or other demonstratives. These visuals can be a good way to keep jurors attention and simplify the main points of the trial. Key visuals can be more memorable and persuasive than simply speaking your argument. However, these visual aids should be a supplement to and not a replacement for your closing. You must be prepared on a moment s notice to deliver your closing without these visual aids. You never know when a last minute ruling may prohibit the use of any demonstratives. Do not read your closing argument. Put down the notes. There is nothing more boring and less compelling that a lawyer whose head is stuck in a notebook. Engage the jurors look into their eyes and tell your story. You are an advocate and you must connect with jurors in order to effectively do your job. You must free yourself from prepared notes and scripts know your main points and deliver your argument without reading anything. Closing Argument Practice Tips Sullivan 5
II. Use the Evidence to Your Advantage You will have a limited time for your closing argument. You cannot and should not attempt to address every piece of evidence introduced during trial. Jurors will likely recall only a small percentage of the information presented concentrate on that evidence and the evidence critical to your case. Know which points to emphasize. Be selective about what you emphasize during closing argument. Highlight the evidence that is needed for the jury to answer the verdict sheet questions and don t waste time dwelling on the rest. Show the jurors the actual testimony and exhibits that came in during the trial. Use your slides or boards to display the key admissions you received from witnesses during the trial. Do not paraphrase documents or reference witness statements generally quote them and display them use the trial admissions to your advantage. Highlight for the jury the key points of the trial and give your jurors the ammunition that they need to win arguments during jury deliberations. III. You Can Run but You Can t Hide Let s face it, there are going to be some challenging facts in your case. After all, if it was so simple, you wouldn t be at trial and you certainly wouldn t have made it all the way to closing arguments. You can t hide from the bad facts you must address them head on in your closing. This doesn t mean, of course, that you should feel compelled to use your closing to rehash every bad piece of evidence that came up during the trial. But it does mean that you must tackle the big ones the ones jurors will talk about when they get back to the jury room, the ones your jurors will need answers to when pressed by plaintiff jurors. Explain and contextualize the bad facts and tell the jury why they don t change the result. IV. The Jury Instructions and Verdict Form Are Your Friends Like it or not, the jury instructions and verdict form are the key to your case. Learn them, know them, and love them. Often the ultimate questions the jurors will be asked to decide are not intuitive. Take time in closing to walk through the instructions and the verdict form so the jurors don t get back to the jury room and feel surprised or unprepared for what they must answer. Explain to the jury that after closing arguments, the judge will read the jury instructions and the verdict form. Put the verdict form up on the screen and walk the jurors through each question. Explain to them what each question means and how the trial evidence helps them to answer each question. Personally, when showing the verdict form, I never check the boxes of the answers I want. I argue why a certain answer is supported by the trial evidence, but I always want the jury to remain empowered to answer the questions themselves. V. Empower the Jury We could not do our jobs without jurors. The whole judicial process would grind to a halt if we didn t have jurors giving up time away from their jobs, their families, and their everyday lives to help us resolve our clients disputes. Thank the jurors for their sacrifices during the trial. Remind the jurors of why they were selected because they promised that they could be fair and wait to hear the evidence before rendering a decision. Empower jurors to keep that promise to put sympathy aside and render a decision based on the evidence and the law. Acknowledge that it can be difficult to send a plaintiff home without any money, but that they took an oath to follow the judge s instructions and that they should feel empowered to do so. Finally, I often argue that jurors should use their common sense in deliberations - that they should hold plaintiffs allegations up to the light of their common sense and compare those allegations against the evidence. If the case does not hold up, if it doesn t make sense, if it is not supported by the evidence, they should return a verdict for the defense. 6 Drug and Medical Device May 2016