The closing argument is the culmination of the case litigation—a consummation
of all that preceded in the case. It is crucial; in fact, it's possibly the most crucial
time of the trial. It should be the first thing done by an attorney when the case is
assigned and the file is transmitted.
But too many see this as the last thing done in a case. It doesn't take the attorney's focus until the night immediately prior to its presentation when evidence is in and notes are reviewed; it's a byproduct of what has gone before. Too many have this perspective—clients, adjusters, and attorneys.
This is totally the wrong approach. A closing argument is not just the product of the hand you're dealt. It should be the culmination of a focused vision and consistent effort from the very beginning of the case. The closing argument should never be left as a final thought; it should be a guiding document.
Many question the ability to start with the closing argument when the case is assigned by the adjuster. "But how can a lawyer do that? There is still a lot to occur, such as depositions, discovery, etc." Look at the closing argument as a living document, revised as the process proceeds. More importantly, the closing argument, drafted at the commencement of the case, is as much a vision piece as it is a pronouncement of the current status.
The Commencement Closing
The "commencement closing" (let's create some jargon) gives the
attorney and the adjuster the overview of evidence in hand—the cards we have been
dealt. These include things like the police report, witness statements, video,
client records, claimant medicals, and the like. If we had to try the case today,
this is what we would have to prove our point.
The commencement closing is aspirational. What evidence do we need
to/want to develop? At this point, it is not just what we could present if tried
tomorrow, but what would be our optimum in persuasion if we could develop the
evidence we envision. Then pursue it in a focused manner, and strive to get the
pieces to fulfill that vision.
The commencement closing creates the most effective and efficient
litigation of a case: It makes it a matter of persuasion, not just a (billable)
process.
The Job Is Persuasion
The closing is the most important part of the case. Think about it—you have a group of jurors who have no idea what the case is about whose job it is to decide between two competing perspectives. It is your job to make them see it your way.
The closing is valuable in numerous ways. First, it gives the adjuster the accurate status of the case and what is the objective going forward. Those pretrial evaluations are, thus, a function of the extent to which those objectives were achieved.
Second, it focuses the attorney—both for themselves and for the adjuster. It flips the too-often script of "working the file" to "working to win." "Point B" is defined. Now laser in on reaching that point. Moreover, it requires the attorney to focus on persuasion. What are our best arguments based on the evidence we have? How persuasive can we be?
The most important part of this process is the vision piece. We
know what we have and where we stand in terms of persuasiveness. What do we
want/need to maximize persuasion? After all, the attorney's ultimate job is
persuasion—persuasion with evidence and logic. The closing argument is the
culmination of what is, or should be, a persuasion-driven process from the time the
case is first assigned by the adjuster.
Too many attorneys see their job as the rote execution of a
process: answer the pleadings, propound and respond to discovery, take and defend
depositions, write a series of status reports along the way. These are all billable
events without regard for maximizing persuasion. These events may be necessary, but
they must be focused, purpose-driven. Collect the evidence to carry the day
persuasively at trial or, prior to that, at mediation.
When I give a closing argument, I often suggest to the jury that they are to develop a picture of what the evidence shows to be the facts of the case. I ask them to form a picture in their mind: "A picture, not like a photograph, but a mosaic formed by the individual pieces of evidence. Pieces of evidence you find to be credible, discarding what you don't find to be credible."
Those "pieces of the mosaic" should be the focus of every effort
in the case from the "get-go." Creating that "mosaic" should be the vision of the
closing argument.
Focus on the Argument
Evidence is just one part of the closing argument. The key is the "argument" itself. It is the attorney's perspective of what it all means and why it should be favorable to the defense.
That is what the closing argument is all about; it is called
"argument." It is the one time—the only time—in the case in which the attorney can
interject their perspective and "argue" what the facts reveal. It is founded on
logic. It is the glue that binds those pieces of the mosaic with logic and reason:
why ours is the correct perspective and why what we are arguing aligns with the
common sense and experience of the jurors.
Spoiler alert—no matter how great an attorney may be, that "logic" doesn't strike you like lightning the night before the closing argument. It is the product of a continuous, protracted rumination of the facts. Drafting the closing immediately upon commencement of the case and continuously considering the closing throughout the case prepares for the inevitable changes that occur throughout the trial. It is ready, but not rigid. It is a vision, but malleable to go with the inevitable variations of the trial.
A Real-Life Example
I once had a case in which a young woman claimed closed head trauma. We admitted fault. The only question at trial was the extent of her injuries.
Her claimed injuries allegedly precluded her from finishing her college education. She claimed difficulty forming sentences, an inability to grasp the right words, extreme light sensitivity, and debilitating headaches. In other words, she alleged that she suffered from total cognitive disability.
Her cross-examination would be crucial. I prepared for weeks, guided by my closing. What facts did I want to elicit of her capabilities to present to persuade the jury? Which exhibits—college transcripts, work records, social media, etc.—would help persuade the jury?
The plaintiff testified on Friday afternoon of the first week of trial. She was the last witness in their case, and they wanted to send the jury home for the weekend with her story as their final impression. She testified for almost an hour and a half. During that time, she answered questions and expressed her thoughts cogently. She did not complain of debilitating headaches nor claim light sensitivity.
When they finished her direct examination, the judge turned to me. "Mr. Marcello, your witness."
During the entirety of her direct examination, I was mentally
editing my cross-examination and considering my vision. What facts did I really need
to create that mosaic? Were there any facts that I hadn't gotten from other
witnesses? More importantly, what did I want to ask to avoid giving her an
opportunity to present evidence that she did not convey during her direct? (I have
never been hurt by a question I didn't ask.)
"No questions, Your Honor." Stunned silence in the courtroom. The judge, jury, plaintiff, her attorney, and my client were all surprised. You see, I had already mentally revised my closing before I gave the response. I knew what I was going to say in closing and the logic I was going to argue to persuade the jury. It was a matter of having been prepared with a vision and able to conform that transpired to fulfill it.
In my closing, I addressed the point to the jury. "Remember last Friday when the plaintiff testified?" They nodded their heads. "And remember when I did not ask any questions of the plaintiff?" They nodded more visibly. "You don't see that on television, do you?" Heads now shake from side to side. This is what I said to that jury.
Well, I had a lot of questions prepared. But there was nothing I was going to ask that would demonstrate her capacity more than what we saw with our own eyes. She demonstrated the stamina to answer questions for almost an hour and a half. She never complained of light sensitivity. Nothing about bringing on a headache.
More importantly, her thoughts were complete, logical, and articulate. And there was no delay in her response or fumbling for words. Contrary to the picture of her we were presented by her attorney and her experts, we saw firsthand the reality of her condition, capabilities, and capacity. There is nothing that I could have asked that would have presented you with the reality that we witnessed with our own eyes.
Boom. It was not the closing argument I had drafted when I got the file, nor was it what I had prepared when the trial began. But, having continuously considered and thought about the evidence and the logic from the very day of the assignment, I was able to modify my presentation for maximum persuasion. I fulfilled that constant vision. And, the jury's verdict was roughly $100,000 less than our final offer.
Opinions expressed in Expert Commentary articles are those of the author and are not necessarily held by the author's employer or IRMI. Expert Commentary articles and other IRMI Online content do not purport to provide legal, accounting, or other professional advice or opinion. If such advice is needed, consult with your attorney, accountant, or other qualified adviser.
The closing argument is the culmination of the case litigation—a consummation of all that preceded in the case. It is crucial; in fact, it's possibly the most crucial time of the trial. It should be the first thing done by an attorney when the case is assigned and the file is transmitted.
But too many see this as the last thing done in a case. It doesn't take the attorney's focus until the night immediately prior to its presentation when evidence is in and notes are reviewed; it's a byproduct of what has gone before. Too many have this perspective—clients, adjusters, and attorneys.
This is totally the wrong approach. A closing argument is not just the product of the hand you're dealt. It should be the culmination of a focused vision and consistent effort from the very beginning of the case. The closing argument should never be left as a final thought; it should be a guiding document.
Many question the ability to start with the closing argument when the case is assigned by the adjuster. "But how can a lawyer do that? There is still a lot to occur, such as depositions, discovery, etc." Look at the closing argument as a living document, revised as the process proceeds. More importantly, the closing argument, drafted at the commencement of the case, is as much a vision piece as it is a pronouncement of the current status.
The Commencement Closing
The "commencement closing" (let's create some jargon) gives the attorney and the adjuster the overview of evidence in hand—the cards we have been dealt. These include things like the police report, witness statements, video, client records, claimant medicals, and the like. If we had to try the case today, this is what we would have to prove our point.
The commencement closing is aspirational. What evidence do we need to/want to develop? At this point, it is not just what we could present if tried tomorrow, but what would be our optimum in persuasion if we could develop the evidence we envision. Then pursue it in a focused manner, and strive to get the pieces to fulfill that vision.
The commencement closing creates the most effective and efficient litigation of a case: It makes it a matter of persuasion, not just a (billable) process.
The Job Is Persuasion
The closing is the most important part of the case. Think about it—you have a group of jurors who have no idea what the case is about whose job it is to decide between two competing perspectives. It is your job to make them see it your way.
The closing is valuable in numerous ways. First, it gives the adjuster the accurate status of the case and what is the objective going forward. Those pretrial evaluations are, thus, a function of the extent to which those objectives were achieved.
Second, it focuses the attorney—both for themselves and for the adjuster. It flips the too-often script of "working the file" to "working to win." "Point B" is defined. Now laser in on reaching that point. Moreover, it requires the attorney to focus on persuasion. What are our best arguments based on the evidence we have? How persuasive can we be?
The most important part of this process is the vision piece. We know what we have and where we stand in terms of persuasiveness. What do we want/need to maximize persuasion? After all, the attorney's ultimate job is persuasion—persuasion with evidence and logic. The closing argument is the culmination of what is, or should be, a persuasion-driven process from the time the case is first assigned by the adjuster.
Too many attorneys see their job as the rote execution of a process: answer the pleadings, propound and respond to discovery, take and defend depositions, write a series of status reports along the way. These are all billable events without regard for maximizing persuasion. These events may be necessary, but they must be focused, purpose-driven. Collect the evidence to carry the day persuasively at trial or, prior to that, at mediation.
When I give a closing argument, I often suggest to the jury that they are to develop a picture of what the evidence shows to be the facts of the case. I ask them to form a picture in their mind: "A picture, not like a photograph, but a mosaic formed by the individual pieces of evidence. Pieces of evidence you find to be credible, discarding what you don't find to be credible."
Those "pieces of the mosaic" should be the focus of every effort in the case from the "get-go." Creating that "mosaic" should be the vision of the closing argument.
Focus on the Argument
Evidence is just one part of the closing argument. The key is the "argument" itself. It is the attorney's perspective of what it all means and why it should be favorable to the defense.
That is what the closing argument is all about; it is called "argument." It is the one time—the only time—in the case in which the attorney can interject their perspective and "argue" what the facts reveal. It is founded on logic. It is the glue that binds those pieces of the mosaic with logic and reason: why ours is the correct perspective and why what we are arguing aligns with the common sense and experience of the jurors.
Spoiler alert—no matter how great an attorney may be, that "logic" doesn't strike you like lightning the night before the closing argument. It is the product of a continuous, protracted rumination of the facts. Drafting the closing immediately upon commencement of the case and continuously considering the closing throughout the case prepares for the inevitable changes that occur throughout the trial. It is ready, but not rigid. It is a vision, but malleable to go with the inevitable variations of the trial.
A Real-Life Example
I once had a case in which a young woman claimed closed head trauma. We admitted fault. The only question at trial was the extent of her injuries.
Her claimed injuries allegedly precluded her from finishing her college education. She claimed difficulty forming sentences, an inability to grasp the right words, extreme light sensitivity, and debilitating headaches. In other words, she alleged that she suffered from total cognitive disability.
Her cross-examination would be crucial. I prepared for weeks, guided by my closing. What facts did I want to elicit of her capabilities to present to persuade the jury? Which exhibits—college transcripts, work records, social media, etc.—would help persuade the jury?
The plaintiff testified on Friday afternoon of the first week of trial. She was the last witness in their case, and they wanted to send the jury home for the weekend with her story as their final impression. She testified for almost an hour and a half. During that time, she answered questions and expressed her thoughts cogently. She did not complain of debilitating headaches nor claim light sensitivity.
When they finished her direct examination, the judge turned to me. "Mr. Marcello, your witness."
During the entirety of her direct examination, I was mentally editing my cross-examination and considering my vision. What facts did I really need to create that mosaic? Were there any facts that I hadn't gotten from other witnesses? More importantly, what did I want to ask to avoid giving her an opportunity to present evidence that she did not convey during her direct? (I have never been hurt by a question I didn't ask.)
"No questions, Your Honor." Stunned silence in the courtroom. The judge, jury, plaintiff, her attorney, and my client were all surprised. You see, I had already mentally revised my closing before I gave the response. I knew what I was going to say in closing and the logic I was going to argue to persuade the jury. It was a matter of having been prepared with a vision and able to conform that transpired to fulfill it.
In my closing, I addressed the point to the jury. "Remember last Friday when the plaintiff testified?" They nodded their heads. "And remember when I did not ask any questions of the plaintiff?" They nodded more visibly. "You don't see that on television, do you?" Heads now shake from side to side. This is what I said to that jury.
Boom. It was not the closing argument I had drafted when I got the file, nor was it what I had prepared when the trial began. But, having continuously considered and thought about the evidence and the logic from the very day of the assignment, I was able to modify my presentation for maximum persuasion. I fulfilled that constant vision. And, the jury's verdict was roughly $100,000 less than our final offer.
Opinions expressed in Expert Commentary articles are those of the author and are not necessarily held by the author's employer or IRMI. Expert Commentary articles and other IRMI Online content do not purport to provide legal, accounting, or other professional advice or opinion. If such advice is needed, consult with your attorney, accountant, or other qualified adviser.