The Closer: A Step-by-Step Guide to Delivering the Perfect Closing Pitch

Closing argument is surely one of the highlights of any trial lawyer’s practice. While closing argument is undoubtedly thrilling, it is also very challenging. This article will introduce you to the most important aspects of giving a closing argument and provide sufficient information to give you confidence to do your first closing argument and give you a rudimentary framework upon which you may build your own confident and winning style of summation for future trials.

Do Closings Matter?

Many trial observers today believe that closings don’t matter because the jury decides the case shortly after the opening statement. So, the preliminary consideration is: Do closing arguments matter? There can be little doubt that closing argument is every bit as important as any other component of the trial. This is because the outcome of a trial is always in doubt until the final verdict is in. Everything that happens in a trial is potentially outcome determinative. In the immortal words of Yogi Berra: “It ain’t over till it’s over.”

This is not to exaggerate the importance of closing argument. If you haven’t done the preliminary work up until that point in the trial, your closing is not likely to save it. Poor closings can spoil winning cases; good closings will preserve the narrow margin of victory and can even turn the tide in your favor in close cases.
 

Closing Arguments and Closing Pitchers

For me, the closing argument is like a closing pitcher in baseball. A closing pitcher is brought in at the end of a close game to get the last three outs and preserve the win for his team. There is something magical in the lore of baseball about a ballplayer who can consistently do this, and the sport recognizes this special talent with a separate statistical category called “saves.” A save has a technical definition, but what it boils down to is credit given to a pitcher for preserving his team’s narrow lead in the late innings of the game. In a sport heavily influenced by folklore and superstition, a dominant closer often takes on mythical proportions among players and fans.

For the World Champion New York Yankees that heroic figure was Mariano Rivera, the Yankees’ closer for 17 seasons. A thirteen-time All-Star and five-time World Series champion, he is Major League Baseball’s career leader in saves (652). In the 1999 World Series, Rivera recorded a win and two saves out of the four games that were played. His second save clinched the championship, and for his performance he received the World Series MVP Award.

Closing arguments at trial are like closing pitchers in baseball. A closing pitcher only comes in during the late innings after most of the game has been played.  Closing argument comes only after days, weeks, or even months of intense struggle at trial. A closing pitcher only comes in when the game is on the line. Similarly, closing argument is made while the outcome of the trial is still in doubt. Finally, a closer is of little use and will not come into a game that is not close at the end. Likewise, a closing argument is no good if what has gone before is not sound. To be a winner in baseball, you must have an effective closing pitcher. To be a winner at trial, you must have an effective closing argument. So the next time you’re wondering whether your closing argument is worth the effort, think Mariano Rivera.

Preparation

As in every aspect of trial, thorough preparation is essential to a successful closing argument. The first rule of preparation for closing is to begin as soon as possible. You should begin working on your closing after you have gathered sufficient facts to create an outline of your closing. A rule of thumb here might be after the first round of discovery is completed.

From the outset, you have to develop themes and labels you want to use in the case. Themes are emotional anchors and images for the jury to take back with them to the jury room. Labels are convenient identifiers of the parties. It is critical for you to develop and settle upon a theme for your case early on. If you do nothing else in your closing argument, you should communicate a theme to the jury. There are as many potential themes as there are ways of looking at life. A theme may be as simple as “corporate greed” or “an accident waiting to happen” or more sophisticated themes such as “the jury system is the only equalizer that we have.”

Equally important, you must develop your theory of the case. The theory of the case is the factual story most favorable to your side based upon the facts established at trial. It must be consistent with the undisputed evidence as well as your version of the disputed facts. It must explain why the people in the story acted the way they did. If you do not present a clear and simple story of what happened to the jury, it will construct one without you – or worse, accept your opponent’s theory.

Create a trial notebook with a section devoted to the closing argument.  In it, put anything that you think might be useful in closing. This will include themes and labels and your theory of the case, as well as analogies, stories, exhibits, and ideas for video or demonstrative aids. Thereafter, outline your closing argument and then periodically update and adjust it to the additional facts as they become known.

Next, get a good scouting report on the judge. Does she have any standing orders with respect to closing arguments? How does she handle jury instructions? And what rules of closing argument does she observe? Find out her views on other technical matters, such as where you should stand during closing, how you may use exhibits and demonstrative aids in your closing.

At the bench conference after the evidence is in, ask the judge about anything that was not included in your scouting report. Know exactly which jury instructions the judge will use and exactly what she is going to permit you to say about the instructions. Clarify what the time limit will be on your closing argument.

Finally, I can’t emphasize enough the fact that you need to rehearse your argument. You need to actually say and hear the words coming out of your mouth. Rehearse in front of a mirror, friends or family members, or your colleagues at work. In especially important trials, you will rehearse your closing before a mock jury.
 

Organization

Organizing your closing argument is every bit as important as deciding what themes and substance to include in it. Keep in mind that a trial is the re-creation of reality. So, when you sit down to organize your closing argument, remember to tell a story. Primacy and recency should also govern the construction of the closing. Information presented at the beginning and the end of your argument tends to be retained better than information presented in the middle. Make a point to start strong and end strong.

A Bold Introduction. Begin with a striking introduction to your closing argument. The attention span of the average juror is short, so you must use the opening moments of closing argument effectively. Put together a short executive summary of the closing that is to follow. Write it out in its entirety (but do not read it to the jury). Communicate your theme, why you should win and your enthusiasm for the case. Deliver that summary without notes, making as much eye contact with the jurors as possible. It will get you off to a strong start – one the jurors are likely to remember.

Let’s take a look at a classic introduction given by Thomas Moore, taken from Joel J. Seidemann, In the Interest of Justice: Great Opening and Closing Arguments of the Last 100 Years (2004) 292 :

Allow me to borrow a statement made a long time ago by Edmund Burke, an Irish statesman and orator …. Burke said, “Something has happened upon which it is difficult to speak and impossible to be silent.”
Ladies and gentlemen of the jury, you have seen unfold in this courtroom events that would make Edmund Burke’s words as applicable today as they were over 200 years ago. It is not only that this child was damaged through negligence and carelessness…. It is not that they had chance after chance that went begging time and time again to save him, and they did not.As horrible and terrible as that is, what’s difficult to speak upon, yet impossible to remain silent is that in this courtroom … there was a deliberate, orchestrated, fraudulent effort to deprive this child of justice.

Burden of Proof. Discuss the burden of proof. You will probably need to disabuse the jury of the reasonable doubt standard, the one most jurors have heard about before coming to court as a juror. You should develop a boilerplate burden of proof discussion to use in all your closing arguments.

Review the Evidence. The distinguishing feature of closing argument is argument. Present your case to the jury as a cohesive, logical and understandable story. Marshal the evidence for the jury and draw inferences and conclusions from the facts; talk about witnesses’ credibility, motivation, or demeanor while testifying; explain the significance of the evidence; and discuss why an event occurred the way it did. Take the patchwork of testimony, documents, and other evidence, and weave it into something the jury can understand.

Deal with Your Weaknesses. In addition to developing your own themes and telling your own story, you’ll also have to deal with the facts against your case. Do not make the mistake of thinking that you can ignore difficult evidence and hope that the jury will not notice. Your job is to neutralize bad facts in closing. At the least, you want to raise your weaknesses before your opponent does.

Anticipate and Attack Your Opponent’s Case. Anticipate your opponent’s case and force him to argue his weaknesses. You must also attack your opponent’s case.  Orienting the jury to your theory of the case should always be your first objective. But once you’ve argued the positives of your case, you must attack the strengths of your opponent’s case.

Jury Instructions. Perhaps the weakest link in a common law trial is the court’s jury instructions. Jurors are routinely expected to comprehend complex legal principles like proximate cause, burden of proof, preponderance of the evidence, etc., after one brief discussion by the trial judge. Talk to the jury about the instructions they will hear and create boilerplate explanations of these instructions.

Verdict Form. Show the jury how you want them to fill out the verdict form. Do not risk a hung jury because it did not properly understand how to fill out a seemingly uncomplicated verdict form.
 

The Law of Closing Argument

As you craft your closing, you need to remember that there are some things that you cannot do or say. Most prohibitions are matters of common sense or curtesy, but I will mention a few highlights. Don’t misstate the law or the evidence. Don’t argue facts “off the record,” such as jury awards in similar cases. The prohibition against arguing off the record does not mean the lawyer is limited to what is in evidence and nothing else. It is permissible to argue common sense, general knowledge, and common understanding. Don’t state personal beliefs or vouch for a witness’ credibility. Don’t appeal to passion or prejudice. Finally, do not urge irrelevant use of the evidence introduced.
 

Presentation

During the actual presentation of your argument to the jury, keep these performance-enhancing tips in mind. Educate the jury as to what the trial is about. Simple things like the fact that the defendant in a civil case will not go to jail often needs to be explained. Use the themes and labels that you have developed during the trial. Make sure the jury understands your theory of the case. Tell the jury your theory of what actually happened based upon the facts that they have seen in the trial. Use exhibits and visual aids during your closing.

Analogies and stories are time-honored methods of communicating with the jury. Using commonly shared experiences or relying on a story that everyone knows or can readily appreciate allows you to show the jury what you mean. Never underestimate the power of understatement. All of us think that the best ideas are the ones that we thought of ourselves; ergo, the views the jurors will defend most vigorously, and the ones they are least likely to abandon, are the ones they believe they figured out for themselves. Also, empower the jury. Jurors should harbor no doubts that, under our system of justice, they are authorized to give you the verdict you seek.

You can spend hours crafting a perfect closing argument, but if it is delivered in a monotone, with your face in your script, and your feet bolted to the floor, all of your efforts will have been wasted. To be persuasive you must be interesting and use all of the tools at your disposal. Do not read from a script. Instead, work from an outline that will enable you to establish eye contact with the jurors.

Pace your delivery. Lower the pitch, moderate the tone and volume, and vary the tempo of your voice. Stand directly in front of, but not too close to, the jury. Maintain an open stance that enhances your believability with the jurors. Move around as much as the court permits and be conversational – like a friendly neighbor giving advice on a serious matter over the backyard fence.

The conclusion of your argument will be the last words that the jury hears from you — make them count. Write the conclusion out word for word. Leave the jurors with something stirring and ringing in their ears. Let’s look at the conclusion from a recent closing argument by Patrick Malone.
[You are] here to render justice that will value a human life and that will say that, no matter if a person is of modest means and no matter if he is in the twilight decade of his life… you will say in your verdict and in your speaking of the truth that his life is precious and his independence and his productivity and his mobility and his dignity cannot be taken away from him without a heavy value being placed on what he has lost.

Conclusion

If you enjoy being a trial lawyer, you love to give closing arguments. For when all is said and done, your job as a trial lawyer is to argue your clients’ case.  Closing argument is your last, best opportunity to do just that. You owe it to yourself to give it your best. So, when you stand up to give your closing argument, craft and deliver it with the skill and artistry of Mariano Rivera throwing strikes where they can’t hit ’em. Little else that we do compares with how you will feel when the jury returns its verdict in the case in which you have just delivered the winning closing argument.

Timothy B. Walthall is a trial lawyer for the U.S. Department of Justice. The views expressed here are those of the author alone and not those of the Department of Justice. Mr. Walthall has been battling in courtrooms for more than 40 years. He has been a trial attorney at the Justice Department (DOJ), the Federal Trade Commission and in private practice. He has conducted numerous jury and non-jury trials in courts and tribunals in the Washington, D.C., area as well as in federal courts. He has been a trial attorney for the DOJ’s Environmental Torts Section and the Guantanamo Detainee Litigation Team. He has also been a lecturer at the Attorney General’s National Advocacy Center’s Trial Advocacy Programs. Before his legal career, he was a semi-pro baseball player.

This article was first published in the December 2018 issue of Virginia Lawyer, a publication of the Virginia State Bar. It is used with permission.

 
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