Closing Argument

Closing Argument
Michael DeBlis III, Esq.

Table of Contents
• Introduction
• Content of Closing Argument
• Selecting Powerful Arguments
• Organizing Closing Argument
• Developing a Point
• Extemporaneous Approach to Delivery
• Communication is Fundamental
• The Language of Closing Argument

Table of Contents
• Nonverbal Communication
• The Self as a Powerfully Persuasive Instrument
• The Span-of-Attention Problem
• Delivery
• Emphasis & Impact Devices
• Conclusion

Introduction
• Closing argument is a great persuasive device
to help you win your case
• Closing argument is the most powerful part of
the trial
– It comes last and has the psychological advantage
of recency
– It is the only part of the trial which can be used
without restrictions for setting forth relationships
of facts and ideas, for emphasizing certain things,
and for putting the case together in argument
form

Introduction
• Closing argument must have persuasion as its
primary purpose
– Other parts of the trial may not be argumentative
and, if so, are stricken as “objectionable”
– The law permits closing argument to be an
argument and to be persuasive

Introduction
• During closing argument, the attorney has the
opportunity to address each issue that the
jury must decide and persuade the jury that
he has the winning side of that issue
• Closing argument allows the attorney to reach
depth in discussion of the issues, which is
necessary to reaching the truth

Introduction
• Closing argument is the only opportunity
during the trial to analyze the factual issues in
dispute and to apply the facts to the law
• Closing argument is the place for weighing
factors and placing emphasis on that which is
important to the case

Introduction
• Closing argument must not be a summation or
rehash of the evidence
• The subject matter for persuasive closing
argument does not spring from the law but
from non-legal disciplines such as rhetoric,
persuasion, communication, nonverbal
communication, speech, and drama

Introduction
• Successful closing arguments depend on how
well ideas are organized, how well facts are
interpreted and characterized, and the extent
to which inferences taken from facts add
meaning to these facts and assist the jury in
understanding them in a light that is most
favorable to your case. This comes from
creative thinking and brainstorming

Introduction
• Closing argument skills must be people-
oriented as opposed to being legally oriented.
The law, of course, furnishes the framework
• Closing arguments which consist of stream of
consciousness, adherence to legal ritual, a
rehashing of evidence, or a diatribe are not
persuasive

Content of Closing Argument
• The law comes from the court’s instructions
and the facts come from evidence admitted at
trial, but the content of a closing argument
goes well beyond these two sources
• Closing argument must be limited to the facts
admitted and the reasonable inferences from
these facts. It is in the area of reasonable
inferences that great arguments are found

• Just as important as the actual facts in a case are
the ideas that organize the facts, interpret the
facts, reach inferences from the facts, and give
life to themes that resonate with the jury
• Ideas come from creative thinking and
brainstorming before and during the case and
end only after the closing argument has been
made. Brainstorming must continue during the
course of the trial in order to take advantage of
targets of opportunity and to adjust to new
developments

Indirect Proof
• A trial is a contest over which of two (or more)
different versions of a litigated event are true.
The winning edge may come from indirect
proof.

– Indirect proof consists of details such as
background, context, motive, character which do
not directly go to an element or contested issue
but which make the attorney’s version likely to be
true when considered in light of the jury’s life
experience and beliefs as to how the world works
– Indirect proof comes from the details of the story
– Too often attorneys rely exclusively on content
that bears on the elements of the offense and lose
the persuasive power of details that make the
story come alive and captivate the senses

Selecting Powerful Arguments
• Selecting arguments that have persuasive
power is not an art or a science
– Sensitivity, feel, and judgment are critical to the
selection process
– The first rule of persuasion is to know and adjust
to your audience. In terms of trial, this means that
the preparation and delivery of the closing
argument will be jury-centered

– I recommend discussing possible arguments with
non-lawyers to better judge the strength of each
argument and the best approach for presentation

• Arguments which appeal to attorneys
generally do not appeal to lay persons
– Arguments based on legal concepts do not
resonate with jurors because they are not steeped
in human experience

• Jurors take an argument and measure it
against their belief systems, attitudes, life
experiences, backgrounds, values, education,
and training. These factors determine the
persuasive power of the argument. Look for
arguments that “ring true,” “hit home,” or
“strike a chord.”

• Persuasive arguments must directly address
the issues before the jury

• Arguments which do not have persuasive power
should not be used
– Your adversary may select the weak argument, exploit
it, and tear it up into smithereens. Not only does that
gut the argument but it implies that all of your
opposing arguments are equally weak
– Presenting weak arguments detracts from the
emphasis that could be given to fewer, but stronger
arguments
– Developing strong arguments is pick and shovel work
and involves a burst of creative thinking

Organizing Closing Argument
• Closing argument must be organized with an
eye towards achieving unity, coherence, and
emphasis. This allows the case to be
presented in the most powerfully persuasive
manner
• Closing argument should be organized based
on the issues the jury must decide. This
directly ties the argument to the decisions
that the jury must make

• The attorney’s side of an issue becomes a
major point which then becomes a unit of
argument called a “block”
• A block of arguments is based on a single
point and consists of:
– A statement of that point
– Support for the point
– A restatement of the point in conclusion

• Notes for each block of argument should be
placed on a separate sheet of paper for easy
use
• Careful consideration should be given to the
order of arguments and having the notes on
separate notecards will facilitate this

• The psychological principles of primacy and
recency dictate that the beginning and ending
of the closing argument contain the most
powerful points
• Points should be treated separately just like
separate sections of a brief. Transitions
between points is not only helpful but
essential

• Avoid speaking in a stream of consciousness –
ideas spoken as they occur to the attorney has
many pitfalls, not the least of which is that it
will be harder for the jury to follow along

Developing a Point
• Closing argument is most effective when it
consists of a series of carefully developed
points with persuasive power
• Each point must be explicitly stated
• Each point must be developed separate and
apart from the others while at the same time
not being cast aside in an isolation chamber.
There is always going to be some overlap
between points

Developing a Point
• Each point must be thoroughly developed.
Making a note of a point and hoping to develop it
off the cuff while you’re on your feet in court is a
recipe for disaster.
• You must be laser-focused on the single point as
you prepare and deliver it otherwise you risk
getting distracted with collateral matters that
dilute the point. The point will lack the type of
support it needs to have unity and coherence.
You do not want your point to rest on a shaky
foundation

Developing a Point
• As the attorney, the point will seem so clear to
you due to how long you have been working
on the case that it may seem redundant to
state it. As a result, many attorneys fall into
the trap of rehashing supporting facts and the
jury simply does not understand what point is
being made

Developing a Point
• Two mistakes to be avoided:
– The mere rehashing of facts without relating them to
a stated point
– Droning on by stating the point over and over again
without support
• Developing each point can be reduced to a simple
formula: (1) state the point and (2) support the
point. This combination packs a “one two” punch
as it results in powerful persuasion

Developing a Point
• The point should be stated and restated
frequently enough that the jury is not only
aware at all times of the point that is being
made, but feels the power with which the
supporting material carries the point
• “Tell them what you’re going to tell them, tell
them, and then tell them what you told
them.”

Developing a Point
• The point should be supported by marshaling
all of the facts, inferences, interpretations,
explanations, and details that support the
point
• Avoid diluting the point by overlapping points.
Keep each point separate
• Choose a sequence which creates a
streamlined flow of ideas

Extemporaneous Approach to Delivery
• Speak to the jurors. Don’t be a conduit for
what is on the yellow notepad
• It is entirely appropriate to use notes.
However, notes should only be used to jog
your memory or to help in transitioning to a
new topic. It should not be used as a crutch. In
other words, its’ use should be minimal so as
not to interfere with communication between
you and the jury

• I recommend dividing your closing argument
into blocks, naming each block, and using
these names to jog your memory
– Reducing your closing argument to an outline and
having it readily available on counsel table will
give you confidence and provide a checklist for
use during closing argument

• Be in the moment
– Being in the moment is a drama term indicating
that your argument is happening right now. It lives
now and will never be done in the same way again
– One cannot be in the moment if one is thinking
about how one prepared last night or trying to
remember what one memorized

Communication is Fundamental
• Communication of the case to the jury is
fundamental and must be top of mind at all
times. Points not communicated cannot
persuade
• Meeting legal requirements and making sure
nothing is left out are often most important to
attorneys, and communication with the jury is
lost

The Language of Closing Argument
• The language of closing argument is
diametrically opposite from the abstract and
general language ordinarily used by lawyers.
One must learn the language of closing
argument
• Use language precisely – say exactly what is
meant

• Use standard English – ease the legalese by
translating it into vivid, plain, simple language

• Use power language
– Take out qualifiers like, “I think,” “I believe,” “I will
attempt to show …”
– Use the active voice
– Rely on nouns and verbs
– Leave out unintentional hesitations
– Use language that has appropriate emotional
content and appeal

• Use vivid language
– Use concrete, not abstract language
– Use specific, not general language. The “just”
thing is death!
– Paint vivid word pictures
• Visualize the matter described and paint it for the jury
• There is great power that comes from being able to see
an event in detail
• Use of word pictures must be learned. Lawyers
intuitively speak in abstract and general terms

• Vary up your sentence length, but tend
strongly toward short sentences. Written
sentences are normally longer, clunky, and
more complex than sentences delivered orally
• Use “quotables” – ways to say things that
“stick” in the listener’s mind

Nonverbal Communication
• Nonverbal communication in the courtroom is
deafening. Its importance cannot be
overstated
• 65% of communication is nonverbal. Studies
show that when there is conflict between the
verbal and the nonverbal, the nonverbal will
win out

Nonverbal Communication
• Two aspects of nonverbal communication:
– Awareness of the feelings of jurors as
communicated nonverbally by them and sensed
by the attorney. Awareness is important because
it may allow adjustments
– Far more important is that which the attorney
communicates nonverbally (see below)

The Self as a Powerfully Persuasive
Instrument
• Experts say that one is persuasive if he is: (1)
trustworthy, (2) competent, and (3) dynamic.
Following the suggestions below will assist in
exuding these qualities

Instrument
• One cannot expect to persuade others of that
which one does not believe himself. Your
nonverbal communication will reveal the
uncertainty
• Find the cause in the case and promote and
develop that cause throughout the trial
• Focus on the cause and on communicating it
to the jury

Instrument
• Have and show feelings appropriate to the
case and to the cause
• Project the intensity and vitality that the cause
justifies
• Immerse yourself in the case so that it is you
who is influencing and not the bear
monosyllabic words on your notepad
• Make the closing argument come to life. It will
only come to life if it lives within you

Instrument
• Have the strength and conviction that comes
from having a cause that you truly believe in
– Eliminate all doubts and ambivalence
• Put aside your doubts and inhibitions and
dare to be great.

The Span-of-attention Problem
• Experts say that the average attention span is
less than three minutes. This fact poses a
significant problem for trials that last hours at
a time
• Vital to keeping the jury’s attention during
closing argument is having appropriate
emotions that will “carry” the attention of the
jury. Avoid wringing the meaning out of
emotionally-charged arguments

• Achieving variety is the antidote to the span-
of-attention problem
– For each block of argument have an appropriate
feeling
– Changing feelings from block to block is the basis
for variety
– As feelings change, it will be natural to change
location in the courtroom, tempo of speech, and
volume

– Changes in location, tempo, and volume naturally
reflect the different feeling appropriate to the
block of closing argument
– Variety can also be achieved through use of visual
aids and other means of communication

Delivery
• Posture must reflect the dynamism of a
person with a cause
• Use your full range of gestures
• Movement must be natural and effortless. Use
movement when it is appropriate, such as to
make a transition, to approach an exhibit, or
to write on a poster board

Delivery
• Each block of argument has a dominant
feeling or emotion from which ebbs and flows
location, tempo, volume etc.
• Use movement and pauses for emphasis, such
as to signal a transition and/or to show
relationships of points

Emphasis & Impact Devices
• Emphasize your points so that they will
dominate the conversation in the deliberation
room
• Cases are lost because the jury does not know
that something is important and, therefore,
does not remember the point

• Emphasis may be gained by outright telling
the jury how important something is, by
spending time on a given point, by using visual
aids, and by writing on a chart

• Useful speech devices
– Quotations
– Analogies
– Similes and metaphors
– Illustrative stories
– Painting word pictures
– Repetition
– Triples like “blood, sweat, and tears”
– Parallel structure like “Ask not what your country can
do for you but what you can do for your country”

Conclusion
Powerful persuasion in closing argument is a
natural byproduct of an attorney who uses
creative thinking to produce ideas, selects
powerful arguments, and then presents those
powerful arguments in vivid word pictures using
variety and appropriate feeling with the self as a
powerful persuasive instrument

Closing Argument

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