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Anatomy of a Civil Trial

Helpful Hints on Closing Arguments

Bruce M. Bender T

he purpose of closing argument is to discuss the evidence persuasively in your client's favor so that they come back with a favorable verdict for your

client. Although many studies have concluded that most jurors have made up their minds by the time the closing argument begins, it is still critical to the outcome of the trial. A seasoned trial lawyer knows that a closing argument can make or break a case and is your last chance to connect with the jury and convince them to find in your client's favor. After giving many closing arguments over the years, in cases ranging from medical negligence/ auto negligence, workers compensation and employment cases, this article will present techniques that have been successfully used in closing arguments.

Bring Back the Theme of Your Case Everyone is taught that you should have a theme of

your case in your opening statement that you should try to use throughout the trial. You should bring back this theme in your closing argument at the beginning of your closing as well and weave it into your discussion of the evidence. For example if your theme is that a corporate defendant failed to take responsibility by failing to have a safe workplace and then is blaming someone else, then this should be brought up right from the start and repeated throughout your closing.

Always Discuss the Burden of Proof It is critical that the jury understand the burden of proof

in civil cases is only a preponderance of the evidence and not as in a criminal case, beyond a reasonable doubt. Again, this key point should be discussed at the beginning of your case in the opening and emphasized again in your closing argument when discussing the evidence. Many skilled trial lawyers including former presidents of this organization have emphasized that the best way to present the burden of

proof in civil cases is to use the feather weight example. If you put the evidence from both sides on the scales of justice, if the evidence tips in the plaintiff ’s favor by just the weight of a feather, then the Plaintiff must prevail. Tis makes it clear to the jury that the evidence just has to tip so ever slightly in the plaintiff ’s favor for the jury to find in your client's favor. Juries have always understood this example over the years and it effectively conveys the concept of burden of proof to the jury.

Use the Verdict Sheet As an Outline We always try to use the verdict sheet as an outline

for a closing argument because ultimately, the jury is going to have to answer questions on the verdict sheet. A good technique is to take the verdict sheet up with you when doing the closing. It is important to go through the evidence involving each question, one by one and discuss it forcefully and persuasively and suggest to the jury why they should answer the question in the client's favor. Tis should be done because the jury needs to understand what they will ultimately have to do when they go back in the jury room to find in your client's favor.

Tell the Jury to Go Back and Discuss Important Points About the Evidence When They Deliberate

Tis tactic is important when giving a closing argument.

When there are important pieces of evidence in the case on both sides always discuss the evidence on both sides, tell the jury why the client's position is the one they should adopt and tell them to go back and discuss this point amongst themselves when they deliberate. I feel this highlights important points and gets them to take notes about the important points in the case and what you are trying to convey to them so that they can repeat your side when they

Trial Reporter / Spring 2012 35

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