a Ten-Step Guide to CLOSING ARGUMENT

file:///H|/PUBLIC/Defender Training/Trial School/2006/Materials/15 Closing Argument -- Kelly.htma Ten-Step Guide to CLOSING ARGUMENTbyCathy R. KellyDirector of TrainingMissouri State Public Defender SystemSTEP ONE: LIST THE BLOCKS OF YOUR ARGUMENTYou cannot argue effectively that which you cannot yourself believe. List first for yourself all the factsthat support the verdict you want the jury to return, whether that verdict is not guilty or a verdict ofguilty on some lesser-included offense. Once you have them listed, group them together into relatedblocks and give each a working title. These will become the "chapters" of your closing argument.Ex: 1. Problems with the identification.2. Alibi3. Physical evidence4. Police screw-upsTIPS: Try to come up with a minimum of three chapters, but make sure you have no more than seven.Listeners have a tough time retaining the cohesion of your argument if you throw more than sevencategories at them. Four or five is probably ideal. List each block title at the top of its own page, then goon to Step Two.file:///H|/PUBLIC/Defender Training/Trial School/2006/Materials/15 Closing Argument -- Kelly.htm (1 of 13)6/28/2006 12:35:33 PM

file:///H|/PUBLIC/Defender Training/Trial School/2006/Materials/15 Closing Argument -- Kelly.htmSTEP TWO: LIST BENEATH EACH CHAPTER TITLE EVERYPIECE OF EVIDENCE WHICH SUPPORTS THAT POINT.Scour the discovery in your case -- every police report, lab report, motion hearing transcript, witnessinterview, photograph, piece of physical evidence, record or fact of any other kind you can get yourhands on. Pull out each piece of evidence which can be used to support your theory of the issues and listit beneath the appropriate chapter heading(s).Ex: Problems with the Identification> Only saw man 1 to 2 seconds across parking lot> Orig told police could give no description> 2d time, gave descrip of beige pants> 3rd time, descrip changed to bib overallsTIP: You will often encounter one piece of evidence that supports more than one chapter of yourargument. Go ahead and list it under as many chapters as it fits.Caveat: The first time a piece of evidence or a particular witness is mentioned in your argument, thetemptation is to launch into a discussion of all the other inferences that can be drawn from that samepiece of evidence or particular witness. "As-long-as-we're-talking-about-so-and-so . . . "DON'T DO IT!Think of it as a play. The issue you are arguing is the scene. The pieces of evidence and the individualwitnesses are the actors, brought out to say their few lines in support of the issue currently on centerstage and then sent back to the wings to wait for their next scene. If they have more lines to share onother blocks of your argument, call them back out when that block moves onto center stage and refer tothem again. But do not allow them to destroy the progress of the show by launching all of their lines forfile:///H|/PUBLIC/Defender Training/Trial School/2006/Materials/15 Closing Argument -- Kelly.htm (2 of 13)6/28/2006 12:35:33 PM

file:///H|/PUBLIC/Defender Training/Trial School/2006/Materials/15 Closing Argument -- Kelly.htmthe entire production the first time they make an appearance!STEP THREE: DEVELOP A COMPLETE ARGUMENT WITHIN EACH CHAPTEREvery chapter must have a beginning, a middle, and an end:1. In the beginning, tell your listeners what your point is.In other words, tell them what you're going to tell them.2. In the middle, discuss each piece of evidence that supports your point, using to your advantage thegood facts and neutralizing as best you can the negative ones.In other words, tell them.3. At the end, repeat the overall point you are trying to make, highlighting its connection to the verdictyou seek. In other words, tell them not only what you told them but why you told them. Don't just set outthe facts and fail to articulate the significance of those facts to your theory of the case. The close of eachblock of your argument is often an ideal place to repeat your case theme if you can make it fit smoothly.PREPARATION TIP:Talk first, write second. None of us talks the same way we write. If you write out your argument first,and then practice speaking it, your end product is much more likely to sound stilted and to beunpersuasive. Instead, try developing each of your arguments by talking aloud to yourself. Make eachpoint of your argument, playing with the phrasing, word choices, points of emphasis, etc. When you'resatisfied with a particular point, then stop and write down whatever notes you need to help youremember what you've just developed beyond the next 30 minutes and move on to the next point of yourargument.file:///H|/PUBLIC/Defender Training/Trial School/2006/Materials/15 Closing Argument -- Kelly.htm (3 of 13)6/28/2006 12:35:33 PM

file:///H|/PUBLIC/Defender Training/Trial School/2006/Materials/15 Closing Argument -- Kelly.htmCONTENT TIPS:I. Avoid Legal Arguments!Only lawyers are persuaded by legal arguments (and sometimes not even them!) The rest of the world ispersuaded by higher principles than legal loopholes -- things like justice, fairness, right & wrong. If yourcase is built on a legal argument, find a way to argue your point without invoking the dry, legaltechnicality itself. Remember those technicalities jurors detest were in fact created to protect orimplement those very principles that so appeal to their hearts. Find ways to tie your argument to theprinciple rather than to the technicality!Ex: To most jurors, the requirement of proof beyond a reasonable doubt is a legal technicality. The fearof convicting an innocent man is not.II. Consider Your Audience!David Ball, a trial consultant extraordinaire, teaches that you have three audiences during your closingargument and a different mission to fulfill with each. Your audiences are:a) Jurors who are already in your favor. Your mission is to give them the ammunition with which to fightyour battle for you in the jury room.b) Jurors who are undecided. Your mission is to persuade them to your point of view and likewise givethem the ammunition to support it.file:///H|/PUBLIC/Defender Training/Trial School/2006/Materials/15 Closing Argument -- Kelly.htm (4 of 13)6/28/2006 12:35:33 PM

file:///H|/PUBLIC/Defender Training/Trial School/2006/Materials/15 Closing Argument -- Kelly.htmc) Jurors who are already against you. Your mission is to avoid entrenching them further and allow themroom to both save face and change their minds. (In other words, you don't want to say things like "onlyan idiot would believe . . .!")STEP FOUR: DECIDE UPON THE ORDER AND WEED OUT THE CHAFF1. Select the chapter that you believe is your very strongest argument. Place it at the very end of yourclosing.2. Select the chapter that you believe is your second strongest argument. Place it at the beginning of yourclosing.3. Evaluate each chapter of your argument for weak or inconsistent arguments. You will often find thatsome don't really carry their weight. They're throw-away arguments, so throw them away. Less is more.TIP: When selecting the order of your remaining chapters, you want your arguments to build upon eachother both logically and emotionally. The emotion of your argument should build throughout to a strongending, not wax and wane. 'Tis not a tide we're creating here. If you have a very emotional plea in onechapter and another which is not so emotional, you will generally want to put the emotional argumenttoward the end of your closing and your less emotional chapters toward the front.STEP FIVE: POLISH THE PERSUASIVENESSThere are ways to say things and there are ways to say things. All is not equal when it comes to thepower of the spoken word. Listed below are a number of devices to consider when you begin puttingtogether your argument:file:///H|/PUBLIC/Defender Training/Trial School/2006/Materials/15 Closing Argument -- Kelly.htm (5 of 13)6/28/2006 12:35:33 PM

file:///H|/PUBLIC/Defender Training/Trial School/2006/Materials/15 Closing Argument -- Kelly.htm1. Trilogies -- For reasons known only to those folks who study such things, the human mind seems tohang on to things that come in threes longer than it does to things that come solo or in any othercombination. There is something poetic and memorable about trilogies, so look for opportunities to buildtrilogies into your argument. Those who doubt the power of the trilogy need only look at those built intotheir own history:Ex: "drugs, sex, and rock & roll""blood, sweat, & tears""red, white, & blue"2. Metaphors - Sentiments, which may be difficult to understand when expressed in the abstract, canoften be made much more real and memorable through the use of metaphorical word pictures. Not onlydo such word pictures capture our imagination and, therefore, our memories more than any abstractconcept can, they also appeal to our other senses in ways the word alone does not.Ex: "All of his life, he'd been pricked with sharp needles of humiliation."--Robert Pepin3. Alliteration - A series of words that begin with or include the same sound tend to be more memorableand more powerful than words with no auditory connection to one another.Ex: "A small-time snitch searching for someone to sacrifice.""Close enough for Callahan" (the sloppy investigating officer)" Like most teenagers, she was curious and confused, seduced by and scared of sex."file:///H|/PUBLIC/Defender Training/Trial School/2006/Materials/15 Closing Argument -- Kelly.htm (6 of 13)6/28/2006 12:35:33 PM

file:///H|/PUBLIC/Defender Training/Trial School/2006/Materials/15 Closing Argument -- Kelly.htm4. Quotations -- Not only are quotations a much more succinct and powerful way of making the pointwe want to make, they also invoke the imprimatur of the wisdom of the ages upon the actions of yourclient.Ex: Where your client remained at the scene until police arrived, you may want to invoke the wisdom ofthe Proverbs: "The wicked flee when no man pursueth, but the righteous stand, bold as a lion.." Or ifyou want to highlight how a witness has been caught in his own lies, there is always Sir Walter Scott'swonderful quote, "Oh, what tangled webs we weave when first we practice to deceive."TIPS: When using a quotation in your argument, play with placing the emphasis upon different wordswithin the quote to vary the meaning and power. In the Proverbs quote above, I had always placed theemphasis on the word "righteous" and was surprised at how much more powerful the quote became formy case simply by shifting the emphasis to the action of my client!5. Analogies -- As with metaphors, it is sometimes easier for us to understand a situation if we cananalogize it to an experience or story that is familiar to us. This is true for jurors as well. Fairy tales,children's stories, or everyday experiences can all be valuable tools for analogy in a closing argument.Caveats:(a) Make it succinct. Analogies are notorious for running rampant and swallowing up large chunks ofargument time while your jury fidgets and wishes you would get to the point!(b) Only use an analogy if it is unquestionably and directly on point to a significant issue of your case.Analogies are too time-consuming to waste on an insignificant point; nor do you want to get boggeddown in a side battle over whether your analogy fits the point you're trying to make. (Such battles can beloud and painful if the prosecutor chooses to ram it down your throat during rebuttal, or silent and secretwithin a juror's own mind. Either is deadly to your case.)file:///H|/PUBLIC/Defender Training/Trial School/2006/Materials/15 Closing Argument -- Kelly.htm (7 of 13)6/28/2006 12:35:33 PM

file:///H|/PUBLIC/Defender Training/Trial School/2006/Materials/15 Closing Argument -- Kelly.htm6. Silence -- This is an incredibly powerful tool often overlooked by lawyers who are uncomfortablewith it.• Use silence at the beginning of your closing argument to build tension in the courtroom and to gatherthe attention of your audience. Have you ever been in a noisy classroom where the teacher suddenlystops talking? You can literally watch the silence move, row by row, all the way to the back of the roomuntil every eye is turned to the teacher and you could literally hear a pin drop in that room. THAT is alevel of attention you want to use your benefit in a courtroom. You get it, easily and instantly, by usingsilence.• Use silence during your argument as a nonverbal parenthesis to set apart and emphasize a powerfulpoint or to let an argument float in the air for a bit before moving on to the next one. Give the jurors timenot only to taste but to savor your point, before moving to the next one.• Use silence at the end of your argument after you have said your last words. Simply stand for amoment, meeting the eyes of each of your jurors, letting your last words soak in before you simply,softly say thank-you and return to your seat. All that will happen when you sit down is the prosecutorstarts talking again. That alone is worth postponing. But the silence also again gives the jurors time tosavor and absorb your argument and to note your obvious belief in what you're saying as you solidlystand your ground and meet their eyesDo not clutter it up by moving about! Movement destroys the power of the silence. Learn to simplystand and let the silence speak for you on occasion.BUYERS BEWARE: Each of the techniques discussed above is a valuable tool that you need to knowhow to use. Each can be very powerful if used effectively. As with most good things, however, theymust be used in moderation! Too much of even a good thing can quickly descend into gimmickry andundercut the sincerity of your plea.STEP SIX: CREATE CHAPTER HEADINGS & TRANSITIONSfile:///H|/PUBLIC/Defender Training/Trial School/2006/Materials/15 Closing Argument -- Kelly.htm (8 of 13)6/28/2006 12:35:33 PM

file:///H|/PUBLIC/Defender Training/Trial School/2006/Materials/15 Closing Argument -- Kelly.htmEver try to read a book of several hundred pages with no chapters? Probably not. There is a reason forthat. Without some framework for processing it all, the reader gets information overload and just givesup. The same is true for closing arguments. You have lived and breathed this case for days, weeks, andmonths by the time of closing. You can jump back and forth between issues & topics & players withoutonce losing the action. Jurors don't have that luxury. This is their one and only time through. It is mucheasier for them to get lost than you realize! And if you lose them? You lose.1. Chapter Headings:Always give your jurors a "heads-up" that you are moving to a new topic. This can be as simple as a"Now let's talk about the sloppy police work brought to you in this case." Or you may want to use a flipchart to list "the five things you heard in this case that show us the police have the wrong man," thensimply flip the page to the next chapter of your argument when you're ready to move on. Anotherexcellent method of chapter headings is to simply ask the questions you know the jury wants answered.Ex. In a rape case where the defense is consent but all parties agree the victim was found in tears, If thisis what she wanted, if this were her choice, then why was she crying? Then answer the question! Thereare any number of ways to communicate your chapter headings to your jurors and by all means drawupon your own creativity in the process. Just make sure you DO it.2. Transitions Between ChaptersEven with a chapter heading, shifts of topic can be jarring if they are too abrupt or seem whollyunrelated or unconnected in any way to what has gone before. It's as if you're speeding down a street andsuddenly slam on your brakes to make a sharp, right turn. Your passengers may be dragged along withyou, but if they didn't know it was coming they may take a few minutes to catch their breath again. Youcannot afford for your jurors to spend a few minutes "catching up" to you during your closing argument.After all, you only have a few minutes! How to avoid it?Make sure you slow down before you reach the turn:a) Give each chapter of your argument a clear and definite closure;file:///H|/PUBLIC/Defender Training/Trial School/2006/Materials/15 Closing Argument -- Kelly.htm (9 of 13)6/28/2006 12:35:33 PM

file:///H|/PUBLIC/Defender Training/Trial School/2006/Materials/15 Closing Argument -- Kelly.htmb) Pause;c) Announce your next chapter heading; (ask your question, flip your chart, etc.)d) Pause briefly again to give your jurors time to make that move with you, then begin.TIP: One excellent transition technique is to tie each of your chapters back to your theme. Not only doesthis give you added opportunity to repeat your theme, it also helps jurors understand that the variouschapters of your closing are simply different branches of the same tree.Ex: [Closing of Chapter One] The victim's description does not match Joe Defendant because the policehave the wrong man.[Heading of Chapter Two] What's the second piece of evidence you heard from that stand that shows thepolice have the wrong man?And then launch into your second chapter.step seven: DECIDE YOUR OPENING HOOKthe first few moments of your closing is the most attentive your jury will be throughout your argument.Do not waste it with thank-you's or apologies for how long the trial has taken. Start with somethingstrong and attention-grabbing that will make your jurors want to stay with you beyond your openinglines!file:///H|/PUBLIC/Defender Training/Trial School/2006/Materials/15 Closing Argument -- Kelly.htm (10 of 13)6/28/2006 12:35:33 PM

file:///H|/PUBLIC/Defender Training/Trial School/2006/Materials/15 Closing Argument -- Kelly.htmSTEP EIGHT: DECIDE ON YOUR CLOSING LINES:All too often you will see an otherwise great closing argument trickle off into a mumbled thanks at theend, draining the power of the defense away with it. Don't leave your closing lines to chance! You wantto take that opportunity to ask the jury for the verdict you want, but there are thousands of ways to dojust that. The goal is to find a way that is powerful, persuasive, and that comes from your heart.STEP NINE: Practice itYou must prepare not only the content of the closing, but the delivery, and that can only be done throughpractice. Practice it aloud -- to yourself, to your mirror, to your spouse, colleague or pets -- but practiceit.Do not memorize it. Few of us are sufficiently gifted thespians to deliver a memorized monologue andmake it ring sincere. Simply talk it through several times. Each time you do, your argument will comeout slightly different and that is the way it should be. That's what keeps it fresh and sincere and real.What you want to remember are those key phrases you've chosen, the metaphors, analogy, or trilogies;the silences you've built in; the transitions you've decided upon-- as well as, of course what evidence youwant to discuss under each chapter!STEP TEN: reduce it to outline formYou cannot read a closing argument and persuade anyone of anything. Your persuasiveness comes fromyour own passion about that of which you speak. If you don't know it well enough to remember itwithout reading it, you've just spoken volumes to the jury about just how passionately you feel about it!"But there is SO much to remember!!" Yes, there is. That's why you must PRACTICE, PRACTICE,file:///H|/PUBLIC/Defender Training/Trial School/2006/Materials/15 Closing Argument -- Kelly.htm (11 of 13)6/28/2006 12:35:33 PM

file:///H|/PUBLIC/Defender Training/Trial School/2006/Materials/15 Closing Argument -- Kelly.htmPRACTICE until you know your arguments so well that you can speak from the heart about each andevery one of them.Then reduce your argument to a one-page outline form which you can lay on the lecturn or table corneras your safety net in case you go blank. The outline will list your chapter headings and no more than aword or two prompt for each of the pieces of evidence you plan to discuss under that heading.Ex: I. ID Probs> 1-2 secs> distance> descriptionsIf your notes are any more detailed than this, you will not be able to even find your place in a glance,much less your prompt; and a glance is all you can spare for notes during closing!!TIPS: Place your cup of water beside your outline during your closing. Then if you DO go blank andhave to refer to them, you can simply pause, walk to your cup, take a sip (while you're franticallyscanning your outline) and as far as the jury knows, you simply had a dry throat.Or you can list your chapters and supporting evidence on a flip chart for use as demonstrative evidenceduring your closing argument. Not only does this allow the jury to follow your argument more easily asyou go through each topic, you don't have to worry about using your notes!________________________________A Word About Storytelling:file:///H|/PUBLIC/Defender Training/Trial School/2006/Materials/15 Closing Argument -- Kelly.htm (12 of 13)6/28/2006 12:35:33 PM

file:///H|/PUBLIC/Defender Training/Trial School/2006/Materials/15 Closing Argument -- Kelly.htmThe new touchstone in trial practice is storytelling and I am one of its avid disciples. However, I amconvinced that the best storyteller will fail to persuade the jury if s/he uses closing argument only as anopportunity to tell a story. A story told well may hold the jurors' interest and even entertain them, but ifthe lawyer fails to explain why it matters to their verdict, in the end, the lawyer will still lose. For thatreason, I encourage you to think of a good closing argument not as a single story, but as a wellorganizedphoto album; each page of vivid, vibrant photographs carefully attached in its appropriateplace beside a succinct, running commentary. The commentary points out the significance of andsubtleties within each photograph that might easily be missed or overlooked by the casual observer.The photographs in your closing argument are the vignettes and scenes carefully culled from theevidence and vividly painted for your jurors through the skills of storytelling to prove a point. Themoment your innocent client learns he's falsely accused and yet does not run away is a photograph thatsupports his innocence. The harsh reality of an interrogation room is a photograph which explains whythe confession does not match the physical evidence and is therefore not believable. Each of these scenesmust be brought to life again for the jurors during your argument through the skill of storytelling. Yetthey do not and cannot stand alone. Without benefit of an accompanying commentary, a carefullycraftedexplanation of how each of these events fit together to paint a picture of innocence, you run thevery real risk that your jurors may never understand the significance of or subtleties within yourphotographs. Absent that understanding, the likelihood they will reach the conclusion you want them toreach is a risk no gambler would want to take.Of course, the opposite extreme is equally ineffective. The perusers of our proverbial photo album willquickly lose interest in the most thorough of commentaries if there are no photographs to accompany it!A dry exposition on how the evidence supports a finding of not guilty does not move us, capture ourattention or imagination, or make us care. BOTH vivid photographs (storytelling) and carefully craftedcommentary (argument) are critical to an effective closing. Equal attention must be paid to both.file:///H|/PUBLIC/Defender Training/Trial School/2006/Materials/15 Closing Argument -- Kelly.htm (13 of 13)6/28/2006 12:35:33 PM

a Ten-Step Guide to CLOSING ARGUMENT

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