The Struggle To Find
A Closing Agrument by Marcus Z. Shar
Summation Reflections When considering the approach to
take in writing this article, my mind drifted to a closing argument I re- cently re-gave as a demonstration at a Continuing Legal Education program. The argument was given in a case that involved an obstetrician’s malpractice in delivering the second baby of twins. As a consequence of the malpractice, the baby was born with severe brain damage, resulting in cerebral palsy and mental retardation. The trial was hard fought on both the issue of standard of care and the issue of causation. Contem- plating how to approach this article, I
vividly recalled the mental process I went through as that trial drew to a close. As frequently happens at that stage of a case, I found myself coming up with multiple rationalizations for abandoning my obligation (and opportunity) to speak on behalf of the people I represented. Discussing it with others, I’ve learned that my experience in that regard was not unique. I have therefore opted not to present a “traditional” article on summation. Rather, at the risk of being overly self-indulgent, I have decided to utilize this opportunity to explore my own emotional response to preparing a closing argument once the moment actually arrives.
After two weeks of trial, the closing Experienced. Credible. Responsive.
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argument was suddenly to take place the following morning. Staring at a blank computer screen, I felt overwhelmed. I had lived with the case for more than a year; and during that time, I often thought of things I would like to say in summation. I just never got around to putting those thoughts on paper. Suddenly the task could no longer be deferred. There was so much that could be said, but how much was truly neces- sary? After all, what could I add to that which the jury had already heard? If I reviewed the evidence with them, would I be viewed as being redundant? If I tried to reemphasize my clients’ positions, would I be resented for simply taking up time? To my momentary relief, I half convinced myself that there was no need to do a summation after all. I had pre- sented the evidence as best I could. I told myself that a closing argument would be superfluous. In fact, I self-argued, “I am a trial lawyer who actually trusts the intel- ligence of this jury.” I was disappointed when that rationalization dissolved. I had to do everything required, and that included this final plea for justice. Disap- pointed, I went back to the computer’s blank screen. A light bulb went off. I remembered
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that I had given a summation in a similar case a few years earlier; a case that had resulted in a good verdict. Why not, I reasoned, use that argument in this case as well? All I needed to do was to find it and change the names, dates, and places. To my chagrin, the bulb began to dim. I knew that while the other argument had been right for the case for which it had been prepared, this case was different. This case was important in its own right. Both it and the people I represented
(Continued on page 42) Spring 2008
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