CLOSING ARGUMENT

CLOSING ARGUMENT

The final factual and legal argument made by each attorney on all sides of a case in a trial prior to a verdict or judgment.

Just as trials begin with attorneys making statements about the case, they end with a direct address to the judge or jury. The OPENING STATEMENT lays out what each side intends to prove; the closing argument, which is generally more forceful, has broader ambitions. By recapitulating the facts, evidence, and testimony presented during the trial, the closing argument tries to deal a fatal blow to the opposing case while definitively proving the attorney’s own. Trial lawyers put great emphasis on their closing argument, or summation, because it is their last chance to be persuasive before the judge or jury begins deliberations. An art form in itself, the
closing argument often brings forth a trial’s most
dramatic speech,marked by criticism, appeals to
emotion and reason, and florid rhetoric.
Tradition dictates only a few rules for closing
arguments. Generally, in civil actions, the plain-
tiff’s attorney speaks first and the defendant’s
counsel immediately follows. In criminal trials,
the prosecution gives its summation, followed
by that of the defense. In addition, the plaintiff’s
counsel or the prosecutor is allowed time for a
rebuttal argument. The reason for this addi-
tional time is that the BURDEN OF PROOF is on
the plaintiff or prosecution; thus, the plaintiff’s
attorney or the prosecutor is allowed to reply to
the defense’s closing argument.Attorneys see the
rebuttal as a useful weapon, as it is the last word
to be heard from counsel in a case.
Closing arguments and rebuttals vary in
duration. Hollywood court dramas often make
the closing argument a brief, terse statement; in
real life, it can go on much longer. Summations
lasting an hour or more are typical. Depending
on the complexity of a case, the entire summa-
tion period may last several days, particularly in
jury trials where numerous witnesses and diffi-
cult SCIENTIFIC EVIDENCE have been presented.

However, most attorneys avoid droning on, for
fear of losing the jury’s attention or possibly
incurring its antagonism. Ultimately, the length
of a closing argument is left to the discretion of
the judge, who may impose a time limit. Judges
can also sustain objections by the opposing side
if the scope of the rebuttal is deemed too far-
reaching.

Throughout history, rhetoric has assumed a
high place in summations. Orators, including
attorneys, have always known that style in a
speech can be as persuasive as substance. The
colonial prosecutor Josiah Quincy peppered his
closing arguments with rich flourishes of indignation.
“Does the law allow one member of the
community to behave in this manner towards
his fellow citizens,” Quincy thundered during
the trial of British soldiers accused of murdering
protesters in the BOSTON MASSACRE of 1770,
“and then bid the injured party be calm and
moderate?” He went on to quote Shakespeare.
But he met his match in attorney JOHN ADAMS,
whose summation helped win the soldiers’
acquittal. Adams argued that any soldier “would
be warranted in depriving those of life who were
endeavoring to deprive him of his. That is a
point I would not give up for my right hand,
nay, for my life.”

In an age when jury consultants warn about
short attention spans, contemporary attorneys
shy away from arch rhetoric.Most lawyers want
to reach the jury’s emotions through plain, but
pointed, speech. Rhetorical questions are still
used powerfully; quotations from literature are
featured to a somewhat lesser extent. Charts,
graphs, and even photographs play a large role
in keeping juries focused. Both the prosecution
and the defense calculatedly used props to
underscore their arguments about brothers Erik
Menendez and Lyle Menendez, who were tried
in California in late 1993 for the murder of
their parents. Arguing that the murders were
intentional, Prosecutor Pamela Bozanich dis-
played a photograph of the bloodied corpses.
Defense Attorney Jill Lansing countered by
tacking up a nude photograph of Lyle, remind-
ing the jury that her clients claimed to have
been sexually abused and saying, “You need to
decide what was going on in Erik and Lyle
Menendez’s mind that night before you decide
what kind of crime was committed.” The first
trial ended in a mistrial. The brothers were
retried and found guilty of first degree murder on March 21, 1996.
FURTHER READINGS
Alexander, Donald G. 2002. “Preparing for More Effective
Closing Argument. Maine Bar Journal 17 (summer):
194–7.
Baldwin, Scott, and Francis H. Hare Jr. 1997. Scott Baldwin
on Jury Arguments. New York:Wiley Law.
Gonzalez, Ervin A. 2002. “Ten Tips for Closing Argument.”
The Practical Litigator 13 (March): 15–29.
Kunstler,William M. 1962. The Case for Courage. New York:
Morrow.
Lief, Michael S., H. Mitchell Caldwell, and Benjamin Bycel.
1998. Ladies and Gentlemen of the Jury: Greatest Closing
Arguments in Modern Law. New York: Scribner.
Mauet, Thomas A. 1980. Fundamentals of Trial Techniques.
Boston: Little, Brown.
McElhaney, James W. 2002. “Close with a Big Finish.” ABA
Journal 88 (November): 56.