The Trial Practice Tips Blog

Objecting to an Opponent's Closing Argument

In Velarde v. Illinois Central R.R., No. 1-02-1859 (1st Dist., November 8, 2004), the defendants took issue with various statements in the plaintiffs' closing argument.  For example, the plaintiffs' lawyer argued as follows about a railroad collision leading to brain damage in one of the plaintiffs, Lilia Apulello:

Lil[ia] Apulello will not get her life back. Lil[ia] Apulello will not get her brain back. Her husband will not get his wife back. Her sister won't get her sister back.

The defendants also took issue with other parts of the closing argument. However, defendants' counsel failed to object at trial, a fact that figured into the appellate court's decision to affirm the judgment.

An Outline for Closing Argument

Lawyer Ervin A. Gonzalez presents his outline for closing in his short article, "Closing Argument." Gonzalez recommends that lawyers walk freely about the courtroom rather than using a podium and not rely on notes. The closing should be organized something like this:

• Give a basic greeting;
• Explain the difference between criminal and civil trials;
• Discuss the standard of proof;
• Summarize the proven facts of the lawsuit in story form;
• Make use of demonstrative aids;
• Rebut the other side's anticipated arguments without attacking the opposing lawyer;
• Move on to damages. The plaintiff should spend at least 35% of the closing discussing them, while the defense lawyer should focus more on liability;
• Conclude with a strong ending.

Another Closing Argument That Went Too Far

From the Detroit Free Press: "Harassment verdict is overturned," by Dawson Bell--

The Michigan Supreme Court struck down a $21-million jury verdict in a sexual harassment case against DaimlerChrysler on Thursday, finding that flamboyant attorney Geoffrey Fieger had improperly appealed to juror bias.

Fieger, the court said, likened his client to a Holocaust victim mistreated by a heartless German corporation.

The 4-3 court majority ordered a new trial for millwright Linda Gilbert, the victim of multiple crude taunts, anonymous vulgar cartoons and other emotional abuse.

Although Fieger was scathing Thursday in his criticism of the majority justices -- whom he described as "the most radical and extremist . . . in the history of the United States" -- the court was unanimous in finding the verdict was excessive.

It was at least the third time in recent years a Michigan appellate court has tossed out a multimillion dollar award to a Fieger client, each time citing his over-the-top rhetorical appeals to the emotions of jurors.

Thanks for the link to Ernie the Attorney. My first post on over-the-top closing arguments, in which a defendant was compared to a "terrorist," was here.

How John Edwards Spoke to Juries

Over the weekend, I caught part of a "CNN Presents" program about John Edwards, which contained a segment on Edwards' career as a personal injury lawyer.

By now, everyone has heard about Edwards' successes, but the program included some interviews with lawyers and judges who'd seen Edwards in action. Here's how one judge summed up an Edwards closing argument: "It was like he was leaning over the fence, talking to his neighbor."

It seemed to me like a style all lawyers should emulate, so I decided to pass it on here. For more advice about how to speak to juries, see my earlier post titled "Gerry Spence on Common Speech."

A Closing Argument That Went Too Far

As an article from Law.com makes clear, you can call a defendant a lot of things during closing argument--but don't call him a terrorist. According to "'Inflammatory' Closing Leads to New Arson Trial," by Shannon P. Duffy, the closing argument of an Assistant U.S. Attorney, which took place the day before the first anniversary of 9/11, included these lines:

Standing here knowing what date today is I am very, very reluctant to use the term I'm going to use, but, frankly, I think this defendant warrants that term, and that term is terrorist.

There are many different kinds of terrorists. We all know too well the kinds of terrorists that caused the attacks of the anniversary so-to-speak we will mark tomorrow. But there are very different kinds of terrorists, and I think this defendant is one of them.

The defendant's lawyer didn't object, but the reviewing court held that the comment was prejudicial, and combined with other problems constituted "plain error." In ordering a new trial, the appellate court wrote: "We cannot know, given the evidence that came in, whether [the defendant] was convicted because the jury believed him to be an arsonist and the illegal possessor of a gun, or because it thought him to be a violent and dangerous man, a 'terrorist' of sorts."

Closing Argument for a Plaintiff in a Products Case

The law firm of Perry & Haas has posted its closing argument in Harper v. General Motors, which resulted in a jury verdict of $47.5 million. The case involved an allegation that the head restraint in a 1990 Chevrolet pick-up was defective. According to the firm's website, the plaintiff "was left a quadriplegic and eventually died as the result of a head on collision."

The closing argument is based on a typical format: (a) an introduction in which the jury is thanked for its time and attention; (b) a discussion of liability; and (c) a discussion of damages. Though the defendant's closing is not available, it is clear from the plaintiff's rebuttal (also online) that the defendant did not address damages in its closing, but only liability.

Another interesting thing about the closing was that plaintiff's counsel extended an offer to waive any punitive award if the defendant would agree to recall and fix the trucks that were alleged to be defective.

Another Post About Closing Argument

From lawyer William P. Lightfoot: "Persuasively Presenting Damages in Closing Arguments." According to the author, the paper was "first presented at the ATLA Annual Convention in Washington, DC, 1998."

The article contains many good ideas for plaintiffs' lawyer hoping to maximize damages. Defense lawyers can use the article to prepare for what might be coming.

A Few Secrets About Closing Argument

From North Carolina lawyer Stephen P. Lindsay comes "A Few Secrets About Closing Argument" (PDF). Though written for an audience of criminal lawyers, most of the article applies to civil lawyers too. You can learn, for example, what acting and storytelling have to teach you about closing argument. And a trick: incorporate what you learned during voir dire about the jurors' professions into your closing. Finally, don't forget to use simple language--the sort of language you would use when talking to someone in a bar.

For more, read the entire article.

What Does the Plaintiff Really Want?

In closing argument, would it be appropriate in Illinois for the defendant's lawyer to argue that the plaintiff's lawyer, during his closing, asked the jury to award a greater amount of money that he really expected the jury to award?

For the answer, keep reading.

More on Closing Argument

I've been thinking about closing argument as I prepare for a trial that begins next week. For those looking for some tips on organization, here's an article simply titled "Closing Argument." I'm not sure who the author is, so I'm unable to attribute the link. (Note to authors: if you're going to put your stuff on the Internet free for the taking, put your name on your articles.)

For those who like to work from examples, there's a good one here from the National Consumer Law Center (.pdf format).

Here's another tip: if only until your closing is concluded, you have to genuinely believe in your client and your client's cause. If you don't, the jury will see it in your tone of voice, your body language, etc. -- and they won't give you the result you're hoping for.