The most gifted Trial lawyers among us are highly successful orators. I use the term gifted because such innate ability is not common among all Trial lawyers. Those who can make a jury cry and stir their emotions with natural ease and innate ability are the few among us with this gift of oratory. These are the “show horses” of our profession. For the rest of us, we have to learn to be work horses in order to be successful at giving a winning summation. If we follow sound fundamentals, just like a football team, we can still deliver a winning summation even if we are not particularly gifted. The key is good, old fashioned, hard work. If one prepares properly and uses sound fundamentals, there is no reason one cannot be successful. What follows therefore are practical suggestions on how to go about giving a sound closing argument that is likely to yield a successful result.

A. PREPARE, PREPARE, PREPARE

It is said that when Winston Churchill had to give a fifteen minute speech, he would engage in six to eight hours of preparation beforehand. When he delivered his fifteen minute address, he did so eloquently and, it appeared to those observing, effortlessly. The truth is that it was not effortless at all, but instead the result of painstaking effort in organizing thoughts and succinctly summarizing them, well in advance of the planned delivery. Churchill prepared very hard for his so called “effortless and brilliant speech,” and thus, even though he appeared to be speaking extemporaneously, what the audience was hearing was the result of extremely hard work and intense preparation.

It is no different for the successful trial attorney. If you want to give a good closing argument, you must be extremely prepared. While this is axiomatic for those of us who have done a good deal of trial work, the point cannot be overemphasized. One should not rely upon the inspiration of the moment. There may not be any.

We have all heard that summation begins the moment you take a client’s case. This is quite true. In my personal practice, when I set up my file in any given case, I set up a “Closing Argument” section at the very beginning of the case. As I work on the case through the discovery phase, I am constantly putting written ideas into my “Closing Argument” file. If I think of something in the middle of the night or during the week, during a deposition or otherwise, I memorialize my thoughts on paper and put my thoughts into the “Closing Argument” file. I do this throughout the pendency of the case, all the way up to formal preparation of a Closing Argument Outline. If the case is not settled, by the time I get into intense trial preparation, I usually have a fairly thick file of closing argument thoughts. Thus, when I sit down to prepare an outline for my closing argument, I usually have 30 to 50 “points” of pithy statements and observations that I have been making over the many months that I have been working on the case. This gives me a head start in determining which points of argument are the most persuasive, which I should use at the beginning of my argument, and which I might wish to save for rebuttal.

In short, I am always preparing for my summation and never wait until the last minute to do so. You should do the same.

B. STAY ON MESSAGE

This is one thing that we have learned from our Republican friends and from experts like Karl Rove. It is a very effective form of communication to stay on message and repeat consistently a unified theme. In the opening statement, a theme of the case or theory of the case should have been developed.

The trial lawyer should harken back to his opening statement during summation and use some of the same language in discussing the issues. This so-called “echo effect” is very important in driving home a point. The Republicans are masters at staying on message and repeating their message constantly and consistently to their audience.

By repeating a central theme and using the same language in doing so, one is more likely to achieve the intended results of the “echo effect,” that is, implanting in the jury’s mind the message one wishes to communicate.

C. BE CONFIDENT, BE SINCERE, AND BE YOURSELF

Another fundamental of a sound closing argument is being as natural as you can be. You should never try to imitate someone else’s style or manner. You can only be yourself. The jury is always watching you very closely. Are you sincere? Are you believable? Are you trustworthy? Everything you do must communicate to the jury that you believe to the core of your being in the justness of your client’s cause. If you subliminally communicate such a belief in everything that you do in the presence of the jury, you will have a much greater chance of winning your case. J. D. Lee, a famous trial lawyer from Knoxville, Tennessee, made this observation:

“We have all seen great minds that have been wasted by not putting their knowledge into action. It is true with the trial of a lawsuit. The power of the attorney is expressed in how the attorney conducts him or herself in the courtroom. He or she is the one that brings in the big exhibits, the pictures, the drawings, moves about the courtroom with confidence and clearly shows why he or she is entitled to a verdict. This same professional advocate must display trustworthiness and integrity. The attorney does this by dress, by posture, by demeanor to court and jury and at times just by tone of voice.”

Most experts in the field believe that the manner of the delivery of a closing argument is just as important, if not more important, than the content of the summation. If a jury believes that counsel is honest and forthright and that the attorney is entirely confident in the justness of his client’s cause, the jury is more likely to side with that lawyer.

Thus, it is imperative that one be sincere at all times and that one function within his or her own personality. Attempts at mimicking other attorneys are ill advised. It is impossible to communicate effectively with a jury if one is trying to be anyone other than himself.

D. DISCUSS THE CASE WITH THE JURY, DO NOT GIVE THEM A SPEECH

In order to communicate with sincerity, there must be a body language and eye contact that flows naturally when discussing a case with the jury. The word discussion is important because one should never read to a jury or give them a speech. It is difficult to develop a personal rapport with the jury if one is speaking at someone as opposed to talking with them. While there should be an element of formality to the summation consistent with the seriousness of the cause of action, nonetheless, the summation should be conversational in tone, as if the lawyer is having a serious discussion with the jury trying to convince them of the justness of his cause.

I recommend that the trial attorney prepare a detailed outline of his comments, not a script. If you read a speech the jury will be turned off. If you discuss the case with the jury, they will listen more attentively. When you speak to someone close to you about an important matter, you do not give them a speech, you discuss the issue with them with great earnestness and sincerity. The same is true when you make a closing argument to a jury. You do not speak at them, you talk with them.

E. GIVE YOUR REMARKS A STRUCTURE

As discussed above, one should not rely upon the inspiration of the moment to deliver a closing argument. A winning summation is usually the result of meticulous, painstaking preparation done well in advance of the actual delivery of the remarks. In order to insure that such preparation is not wasted, obviously, it is necessary that counsel utilize a structure in preparing his/her outline of the legal and factual issues counsel wishes to discuss with the jury.

The following elements should be present in your remarks: 1) an interesting introduction to the summation; 2) a discussion of what happened; 3) a discussion of the law and the burden of proof and why; 4) a discussion of damages; and 5) an appropriate peroration or conclusion.

In short, the closing argument should not be rambling but should be structured with a logical flow to it and with a content appropriate to the facts and legal issues involved in the case. While content many times is not as important as the actual delivery of the summation, nonetheless it is obviously important. Thus, for the content to be delivered in an effective manner, the communication style must be clear and concise and must be organized in such a manner that the jury can follow it as it is delivered. When counsel uses the “echo effect,” uses demonstrative exhibits, uses the language of the case and gives his remarks a structure, the essential elements of a winning summation are present.

1) An Interesting Introduction

With respect to the recommended structure, as indicated, counsel should initially deliver an interesting introduction to the summation. In short, the jury should hear an argument at the very beginning of the summation which captures its attention. It is recommended here that the beginning of summation mirror and/or have an “echo” effect of what hopefully was an interesting opening statement.

In a hypothetical case involving a high speed police chase, counsel for the plaintiff might give an opening statement that would read as follows:

This is a case about a police chase that should never have occurred and that resulted in the death of my client’s twenty-two (22) year old daughter, whom we contend was killed by a reckless disregard for proper police procedure by the officer involved. This case is also about the failure of the police officer and his employer, The Police Department, to acknowledge their role in this tragic loss. The evidence will show that they did have a role, a substantial role, in causing the death of this young lady and as you will hear, there will be no evidence that the victim of this tragic incident was in no way guilty of any wrongdoing herself. She was completely and totally innocent at the time of her death and lost her life partly because the police officer and his employer recklessly disregarded proper police procedures concerning the initiation and continuation of an objectively indefensible high speed pursuit.

If this kind of opening statement were given, hopefully the jury’s curiosity was piqued and their interest elevated at the very beginning of the case. Now, during summation, counsel should again describe the issue in such a manner as to get the jury’s interest and maintain it. Echo back to what was said by using the same terms, repeating the same themes. Stay on message at the beginning, but do so with impact.

2) A Discussion of What Happened and Why

After gaining the jury’s interest, counsel should then proceed to a discussion of what happened and why the defendant is liable. Here, counsel does not want to retry the entire case. Rather, counsel wants to discuss most important the facts that entitles his client to a verdict. It may be helpful to refer briefly to the pleadings and the Answer of the defendant. If you note a material fact that was denied in the Answer, this should be mentioned and then the jury should be reminded that the plaintiff has proven that the asserted fact is true.

While you should never go witness by witness in a recitation of what you proved, you should summarize the testimony and evidence offered by offering a cohesive unified theory of the case. I do not recommend that you use the term “theory of the case,” but I do recommend that you present your theory in a summarized manner tying together the most important facts and evidence supporting your claims for recovery.

3) A Discussion of the Law and Burden of Proof

After discussing what happened and why the facts support plaintiff’s contentions, counsel should then proceed to a discussion of the law and the burden of proof. When discussing the law, counsel should use the exact same language that the Court will use in its charge to the jury. If nothing else, when the Court uses the same language in its charge, the credibility of the attorney is enhanced.

Counsel should very clearly explain what is meant by the preponderance of the evidence. This is a term of art well known to lawyers, but may not be understood by juries. Counsel might wish to remind the jury of the difference between proof beyond a reasonable doubt that they have heard discussed on television in a criminal case and the different burden in a civil case, that being proof by preponderance of the evidence. This can be done in a variety of ways including referring to the scales of justice tilting ever so slightly in the plaintiff’s favor. However it is done, it is absolutely necessary that the jury understand that the burden of proof is only that which is more likely to be true, not proof beyond a reasonable doubt.

4) A Discussion of Damages

Obviously, there must be a discussion of damages. This is addressed in greater detail later in this paper (see Subsection H, infra.), but suffice it to say, damages must be discussed in such a manner that the jury understands what it is that the plaintiff is seeking and why it is that a verdict in the suggested verdict amount would be both fair and just.

5) The Close

As to the last portion of the Closing Argument or the peroration and conclusion, once again, this must be delivered in such a way that the case is closed with a planned impact. Numerous statements can be made such as “I have worked hard at presenting the evidence for you to decide this case. I know you will decide this case as it should be decided and that you will return a verdict in favor of my client,” or “we appreciate the attention you have given us. We know you will do the job that you are charged as a jury to do and that you will return a verdict which speaks the truth in this case, that truth being that my client is entitled to a verdict in his favor;” or “I have now finished my job, now yours begins;” or “we are absolutely confident that you will do the right thing and that you will return a verdict which not only speaks the truth, but demonstrates to the defendant that they must take responsibility for their conduct.”

While these are only examples of how one can end a summation, what matters is not so much what is said, but how it is said. You must close your summation with confidence and with an ending appropriate to the tone of the case that will have the desired impact. Once you have concluded, sit down with an air of confidence that you have clearly won your case.

In every winning summation there is both the logical and rational aspect of the presentation. Where the facts are placed in perspective by counsel, the jury is furnished with ammunition to advocate your side of the case in the jury room. But there is also the emotional side. Counsel must convince the juries in the justness of his client’s cause and want them to believe that when they return a verdict in favor of the plaintiff that they will be promoting the ends of justice. Through a sincere, honest and forthright approach to the case, counsel can best appeal to the jury’s emotional sense of right and wrong at the conclusion of his or her remarks. Obviously, a tone has to be set throughout the closing argument which is consistent with the facts of the case. When counsel concludes his remarks, however, it is necessary that the jury viscerally feel that the plaintiff is entitled to a verdict and that it would be right to return a verdict in favor of the plaintiff. Thus, the structure of a closing argument, while inherently logical, must allow for an appropriate expression of emotion consistent with the facts in dispute.

It is recommended that counsel memorize both the beginning and ending of his summation. While it is not recommended necessarily that counsel memorize the remarks to such an extent that they are delivered in a wooden fashion, nonetheless, a memorized beginning and ending allows counsel a sufficiently dramatic beginning and ending to drive home the justness of his case. It also prevents a flat ending to the case and maximizes the ability to have the intended impact on the jury’s collective psyche.

F. USE THE RULES GOVERNING THE CASE

In giving a closing argument, it is essential that counsel use the legal language of the case. The court will be instructing the jury on various principles of law that could be absolutely crucial in the jury’s determination of the facts. Thus, when discussing a case with the jury, counsel should use the language of the case. Counsel should use and explain terms such as “preponderance of the evidence,” “proximate cause,” “breach of duty,” “failure to exercise ordinary care,” “negligence,” and “damages.” If, for example, a central issue in the case is whether the plaintiff was contributorily negligent, that term should be used (exactly as will be charged by the Court) and explained as are other terms of art.

Many cases have unique questions of law that ultimately will control a jury verdict. It is absolutely essential that counsel use the language of the case from the beginning of the case through its end. Hopefully, the key language of the case was used in Opening Statement. Utilizing “the echo effect” during summation, counsel can use the same language of the case during summation in convincing the jury that their view of the evidence should be such that the issues are resolved favorably to the client.

G. USE DEMONSTRATIVES AND TRIAL EXHIBITS

Every good trial lawyer knows that a jury remembers best that which they both hear and see. Accordingly, demonstrative exhibits should always be used during closing argument. Sometimes demonstrative exhibits are necessary in order to emphasize a point about liability. Sometimes they are used to emphasize principles of law.

Effective demonstratives can also be used to discuss damages. A good closing argument might use demonstratives in all of these areas. In short, a well prepared demonstrative exhibit will assist counsel in making his point while at the same time assisting the jury in remembering it.

Of course, in addition to using demonstrative exhibits, actual trial exhibits should be shown to the jury just as a demonstrative exhibit would be shown. If a particular exhibit is important, the exhibit should be referred to by number and shown to the jury and its importance to the case should be discussed. An actual trial exhibit (blown up) can be used as a demonstrative exhibit in this fashion where counsel uses the exhibit to demonstrate to the jury why it is that the evidence supports his client’s contentions on any contested issue in the case.

H. REMEMBER WHY YOU ARE THERE

In a hotly contested liability case, it is often easy for counsel to forget that the reason they are there is to achieve a favorable monetary verdict for their client. It is tempting sometimes to spend far too much time discussing liability thereby leaving counsel with little or no time to discuss damages. The reason we are in Court is to try to get a verdict to compensate our client for the damages they have sustained. Obviously, we have to discuss liability. However, we should never discuss liability exclusively and should always reserve a sufficient amount of our time in summation to devote to the subject of damages.

If the case is a close one and it is necessary that counsel discuss liability extensively, I would suggest that counsel discuss liability at least seventy percent (70%) of the time and reserve thirty percent (30%) of his time for damages. If counsel believes that liability is fairly strong, counsel might wish to divide his arguments between fifty-five and sixty-five percent (55-65%) liability and thirty-five to forty-five percent (35-45%) damages. If liability is strong, the counsel might wish to reverse this percentage and focus more on the damage equation to the case. Whatever the issues involved, however, counsel must be organized enough to allocate a sufficient percentage of his time to discuss the damage question such that the jury knows what it is counsel is asking for and why it is that the damage position of the plaintiff is both fair and just.

When discussing money with the jury, I would recommend that counsel always give the jury a range of suggested verdicts. If the jury is not given a range of suggested verdicts, then they have to come up with their own range and they may not pick a range that you will like. By giving a jury a range as to what would be appropriate, this gives the jury something to rationally discuss in the jury room.

For example, in a wrongful death case, if a young person is killed and liability is clear, and the individual had a substantial wage record, by using the Annuity Mortality Table, you can help guide the jury toward a fair range of lost wage reimbursement based on the Annuity Mortality Table and the types of wages the decedent was earning at the time of his or her death. Further, when discussing the non-economic portion of the case, counsel can talk about how much the individual’s life might be worth on an annual basis. Is life worth $25,000.00 per year? Is it $50,000.00 per year? Is it $100,000.00 per year? By showing the jury what the verdict range would be based upon its answer to that question, the jury can then begin to focus on $25,000.00 per year times a 50-year life expectancy or 50 - $100,000.00 per year times a 50-year life expectancy.

In short, I think a jury should be given a range to work with so that they have some basis for discussing damages when they enter the jury room. If you do not give them a suggested range for the type of money that you think would be a fair and just result, you many end up with a result that is less than favorable for your client.

I. SPEAK FROM THE HEART

As stated above, it is most important that counsel appear to be completely sincere in everything he says and does. The best way to do this is to speak from the heart and tell the jury exactly what you think. If the jury senses that counsel is speaking candidly in a forthright manner about the issues in the case, the jury is more likely to have confidence in what is being said.

If you speak from the heart, by definition, you are being yourself. If you speak from the heart, by definition, you are being sincere. If you speak from the heart, a jury will recognize that you are doing so. This can only help your client because the jury is more likely to side with the attorney who strikes them as being the most fair, the most believable and the most genuine. Make sure that this person is you by speaking from the heart.

J. DON’T VIOLATE FUNDAMENTAL RULES

As discussed above, counsel should utilize the structure in delivering his/her summation. If counsel is disorganized in his approach, the jurors will not follow the arguments made and subliminally will believe that counsel is not entitled to a verdict. Again this is a fundamental rule of a winning summation.

Although the fundamental dos are sometimes easy to recognize, there are some fundamental don’ts as well. For example, do not select an issue that an intelligent juror will recognize as being disingenuous or phony. Never misstate or overstate the evidence. Do not attack a lawyer personally. Do not attack a party or a witness in the case if the attack is not warranted. Do not talk too fast. Do not oversell your case. Do not use big “lawyerly” words. Avoid undue repetition, this includes talking too long. Do not mumble. Do not criticize the Court. Do not personalize your adversary, and instead refer to the “defendant” or the “corporation,” while referring to your client by his first or last name.

Do not rely too much upon the inspiration of the moment. Do not mimic others. Do not demean or criticize unfairly. Strike hard but no foul blows. Finally, do not let your opponent outwork you. As stated, if you are not a show horse, you must be a work horse and practice good fundamentals if you are to be successful.

K. WHEN APPROPRIATE, REMIND THE JURIES OF THEIR OATHS

In the typical negligence case, it is not necessary that a jury be reminded that they have taken an oath to set aside any prejudice or biases they have and to render a verdict solely on the evidence and the law presented to them. However, there are cases of a more controversial nature where it might be necessary for counsel to consider reminding the jury of its oath. Examples would include medical malpractice cases and other controversial cases such as high speed police pursuits.

We all know about the propaganda campaign waged by the medical lobby and the Chamber of Commerce relative to caps on malpractice awards. As many observers have already noted, we do not need tort reform in Georgia because it has already occurred. The juries have been polluted by the massive propaganda campaign being waged against our clients. Thus, when a jury steps in the jury box, they may be fearful that if they return a verdict for a plaintiff, that they may be putting a doctor out of business or causing other doctors to leave this state. They may also be fearful that they will be participating in a “jackpot justice, lottery situation” where the plaintiff is made rich, as his attorney, while the poor doctor is sent home to pay the judgment himself. While we know that this propaganda is not true, nonetheless, juries have been so exposed to it that they may actually believe some of these falsehoods.

Accordingly, it might be necessary for counsel to advise the jury during summation that they promised during voir dire that they would follow the law and the evidence and that they should not disregard their oaths for fear of the collateral consequences of a just verdict.

L. BE AN AMBASSADOR.

As we all know, trial lawyers are under assault by the business community. We are accused of being sleazy, money hungry ambulance chasers. I need not further discuss this nationwide propaganda campaign, but suffice it to say, our public image has been and continues to be at risk. Accordingly, it is imperative that as trial attorneys we conduct ourselves as ambassadors for justice when we appear in a courtroom.

The best way to get a favorable result in any case is to exude confidence and to practice the highest standards of professionalism. This is a fundamental rule of trial practice. The plaintiff’s lawyer cannot afford to be viewed with skepticism by the jury. The jury must trust the trial lawyer and his sincerity.

Accordingly, it is absolutely vital that counsel exude professionalism in everything he does. The manner of one’s dress, the extent of his preparation, the manner in which he conducts himself, his competence and his demeanor all reflect on our profession as well as the case before the jury. If we are to overcome the negative stereotypes being advanced by enemies of our civil justice system, during closing argument, it is recommended that counsel continue to practice the highest standards of professionalism in the manner in which he conducts himself. If the jury sees for itself the extent of counsel’s preparation, the extent of his confidence and the extent to which he embodies the quest for fairness and justice, this will not only enure to the benefit of the client, this will help our profession as a whole. In short, it is good business to be professional and if one is to be successful in a summation, professionalism must be exhibited in the presentation.