Chapter 11: Summation and Final Argument

Summation is the advocate's culminating opportunity to summarize the factual story, explain the significance of the evidence, and present reasons why the fact finder should rule for the client — an act of advocacy rather than mere argument that draws together everything the trial established.

Chapter 11

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11.1 Introduction

A. Scope

B. Purposes

C. The Final Story

D. Human Dimensions

E. Values and Viewpoints

11.2 What Can Be Presented

A. Facts and Opinions

B. Inferences and Conclusions

C. The Story

D. Exhibits and Visual Aids

E. Law and Legal Theories

F. Theory of the Case

G. Anecdotal References

H. Underlying Values and Norms

I. New and Novel Explanations

J. Urging a Result

K. Limited Coverage

L. Using Creative Approaches

11.3 Summation Preparation

A. Early and Continuing Preparation

B. Jury Trial Instructions

C. Identifying Pivotal Issues

D. Anticipating Opposing Positions

E. Selecting Exhibits and Visual Aids

F. Meeting Expectations

G. Length of Summation

H. Order and Sequence

I. Rebuttal Argument

J. Prepared Outline/Detailed Script

K. Practice and Rehearsal

L. Limitations and Restrictions

11.4 Summation Organization

A. Orderly Structure

B. The Introduction

C. Body of Summation

D. The Conclusion

E. Final Argument Critique

11.5 Summation Content

A. Argument and Assertions

B. Evidence Explanations

C. Summation to Jurors

D. Effective Techniques

E. Tactical Considerations

F. Criminal Cases

G. Civil Cases

11.6 Presentation and Delivery

A. Positions and Transitions

B. Deportment and Bearing

C. Observing the Decision Maker

D. Notes and Outlines

E. Visual Aids and Exhibits

F. Developing an Effective Style

11.7 Objections

A. Arguing New Matters

B. Misstating the Evidence

C. Improper Legal Argument

D. Improper Personal Argument

E. Improper “Golden Rule” Argument

F. Appeals to Passion

G. Misuse of Visual Aids and Exhibits

H. Beyond the Proper Scope

I. Improper Inferences

J. Prosecutorial Misconduct

K. Appeals to Prejudice

L. Improper References

M. Improper Comments

N. Improper Interruptions

O. Admonishing Counsel

P. Uncommon Problems to Avoid

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REFLECTING ON ADVOCACY

Facts, as such, never settle anything. They are working tools only. It is the implications that can be drawn from facts that count.

—Clarence Belden Randall

Introduction

A. Scope

Summation is the advocate’s final opportunity to make an oral presentation to the fact finder. During summation, the lawyer can explain the evidence, describe the law applicable to the facts, and present reasons why the judge, jurors, arbitrator, or administrative law judge (ALJ) should render a decision in favor of the lawyer’s client. It is the culminating advocacy event that hopefully leads to well-deserved victory and justice.

Summation occurs after the close of all the evidence. It is also known as final argument or closing argument, although the term “argument” may misstate the primary purpose of summation. It is not enough to merely “argue” the rightness or wrongness of positions. The attorney must “advocate” and present reasonable, persuasive explanations. Cases are won by what happens during the entire trial or hearing, with summation being the concluding episode.

B. Purposes

The purposes of summation are to:

• Summarize the factual story of the case.
• Explain the significance of the evidence presented.
• Comment on the credibility of witnesses.
• Describe real and demonstrative exhibits.
• Highlight the rational, emotional, and humanistic issues.
• Draw reasonable inferences, present conclusions, refer to common sense, and explain implications the fact finder may not perceive.
• Explain why a party deserves to win and provide reasons that the decision maker may not have considered.
• Describe the law, elements of the claims and defenses, and jury instructions in jury trials.
• Answer questions from a judge in a bench trial, an arbitrator in an arbitration, and an ALJ in an administrative case.
• Integrate the case theories, evidence, and law into a cohesive and comprehensive presentation.
• Present a compelling story that convinces the decision maker to declare the deserving party victorious.

This Chapter contains many examples of summations. Most are applicable to all types of cases tried before juries, judges, arbitrators, and administrative law judges. Some are effective primarily before jurors, while others are pertinent to cases before professional decision makers.

C. The Final Story

A case begins with the story told during the opening statement and concludes with the story summarized in the final argument. The factual and legal summary of the case recreates what happened and why and sustains and supports the outcome pursued by the advocate. An effective closing delivers persuasive explanations, convincing reasons, and a compelling motivation for a decision maker to *want *to return a favorable order, award, or verdict.

All cases involve some facts and events that support the telling of a captivating story. Criminal cases involve matters of freedom and liberty. Personal injury actions involve pain and suffering. Commercial cases involve economic and financial livelihoods. Environmental actions involve public interest issues. The advocate must bring to life the underlying factual aspects, legal elements, and human facets of a case.

D. Human Dimensions

Decision makers base their conclusions not only on logical and rational reasons supporting positions but also on inspiring humanistic aspects. An intellectual argument that reaches only the minds of the fact finders may not be sufficiently enthralling. The advocate must present an argument that touches the emotions, feelings, and hearts of the decision maker— as well as their intellects and thoughts. They want to do what is right, and they also want to be fair. They want to do what is reasonable, and they also want to feel good about their decision.

The advocate must consider using these psychological and emotional influences. Every advocate has this ability. Every attorney, outside the courtroom and hearing room, has told a story to someone that touched the sentiments of the listener and produced positive reactions. This same ability will be needed during summation when the advocate must present the argument in a way that favorably influences the decision maker.

This aim of crafting a humanist story is the art of presenting a compelling summation. An advocate has goals that are similar to the aims of other presenters. Take a moment and think about effective speakers and consider their approaches. They not only presented information and advanced reasonable positions but also said or did something that appropriately tapped emotions and feelings that influenced decisions.

An argument that appeals only to sentiments is inappropriate and ineffective. Fact finders who hear an inapt or unsuitable plea directed to their feelings may conclude that the facts, law, and reason do not support the attorney’s position. An appeal to emotion must be buttressed by convincing facts and persuasive law.

E. Values and Viewpoints

Summation has the same objectives as other aspects of advocacy. The focus must be on what is most likely to help the decision maker decide the case favorably. Each decision maker’s values, background, viewpoints, attitudes, and experiences will influence how they hear the stories and interpret what is presented in summation.

In deciding a case, it is unlikely that the final decision will be based on factors that contradict the core values* and guiding principles *of the judge, jurors, arbitrator, or ALJ. A summation that includes reasons and explanations that reflect the *beliefs and norms *of the decision maker will be more effective. As emphasized in prior sections, the advocate needs to craft a presentation that espouses these central values and views.

Jurors may be susceptible to a closing presentation that argues they should do something consistent with their core beliefs reflected in the law. Plaintiff lawyers may contend that they should be empathetic to the tragic plight of the blameless and severely injured victim. Or plaintiff counsel may assert that the kind of heartless conduct perpetrated by an uncaring defendant on an innocent plaintiff is conduct they do not tolerate in their society. Defense counsel may portray a corporate client as a caring citizen that made an innovative product to help people live a healthier life. Or a defense attorney may emphasize the financial, economic, employment, or philanthropic benefits that a defendant employer provides. Variations of these arguments are designed to encourage the jurors to allow their values of kindness, community, fairness, compassion and justice to guide their verdict.

What Can Be Presented

A. Facts and Opinions

All facts and opinions that are evidence in the case, even those in dispute, may be described during summation. The attorney should explain all the important details and selectively discuss other proof that supports the client’s case and discredits the opponent’s case. The more an advocate can highlight evidence that substantiates and corroborates a confirming version of events the more likely the outcome will be favorable.

B. Inferences and Conclusions

Inferences are statements drawn from direct and circumstantial evidence. Conclusions are statements extrapolated from interpretations of testimony and exhibits. Generally, counsel may describe all reasonable inferences and conclusions, and should especially explain those that are not obvious or apparent from the evidence and that the fact finder/decision maker may not perceive or understand.

C. The Story

The summation culminates in a complete and comprehensive story fashioned by the evidence. The attorney should summarize the case story using the words and phrases presented throughout the trial or hearing. The closing argument provides an opportunity for the advocate to connect the themes and theories of the case with the evidence and pertinent law.

D. Exhibits and Visual Aids

Lawyers may and should use exhibits and visual aids in the final argument. These may contain compelling images, depictions of events, descriptive diagrams, graphic reproductions, listings of issues or damages, or a summary of arguments. Computer generated presentations (e.g., Gen AI) can further enhance the argument. The extent to which they should be used depends upon the nature of the facts, types of issues, expectations of the fact finder, and ability of the advocate to use them effectively. See Chapter 8.

E. Law and Legal Theories

During summation, the attorney needs to explain how the law applies to the facts and how the evidence bolsters the legal theories. While the advocate is not the source of the law, the advocate can apply the law to the facts and argue why the law supports the verdict that is sought. In jury trials, the judge has the responsibility to explain the law through jury instructions. Lawyers know what jury instructions and verdict form will be provided and can use the instructions and verdict form to explain how they sustain the verdict.

F. Theory of the Case

A focal point of closing argument is an explanation of the theory of the case. Opening, or jury selection, was the first time the advocate introduced the theory of the case. Summation is the last time the theory can be further developed and explained. See § 2.5.

G. Anecdotal References

Counsel has the opportunity during final argument to present anecdotes, analogies, metaphors, and allusions involving common life experiences and to employ a variety of persuasive techniques, including the use of appropriate historical and fictional stories, poems, prose, and works of literature and art. Anecdotes can be drawn from realistic incidents and occurrences. Analogies can be based on comparisons between case events and happenings from the outside world. Metaphors can be grounded in contrasting ideas, thoughts, or feelings that provide insights about issues. Allusions can be based on persons, places, or things of social or cultural significance that relate to the case. Section 11.5 presents examples of these types of references.

LLMs can enhance summations by providing many potential anecdotes, analogies, metaphors, and allusions — giving advocates summation materials in a rich database of historical and fictional stories, poems, prose, literature and art. These AI tools can quickly generate relevant and persuasive content tailored to a case’s specific themes and facts. LLMs can suggest powerful metaphors drawn from the compelling facts, helping to illustrate complex points in a relatable manner. They can also propose analogies that create strong comparisons between case events and common real-world experiences, making presentations more emphatic.

Additionally, LLMs can craft metaphors that highlight contrasting ideas or feelings, offering deeper insights into the issues at hand. They can identify allusions to socially or culturally significant persons, places, or things that resonate with the decision maker, strengthening the advocate’s position. By leveraging LLMs, attorneys can ensure their rhetorical devices are well-chosen, impactful, and relevant to the case, enhancing the persuasive power of their summation.

For example, an attorney presenting a final argument in a personal injury case could use an LLM to find a compelling analogy. For a case involving a company’s negligent maintenance of safety standards, an LLM might suggest comparing the company’s behavior to a ship captain who —seeking increased profit through speed — ignores storm warnings, injuring his crew. Analogies like that can make abstract concepts like negligence more concrete and relatable for juries.

H. Underlying Values and Norms

A requested outcome that reflects and is consistent with the values and norms of the decision maker will increase the chance of success. Arguments based on positions contrary to the decision maker’s principles and beliefs will not be very persuasive. As explained throughout this text, decision makers prefer to make decisions that reflect and comport with their convictions, mores, tenets, ideals, and ethics. The challenge for the advocate in closing is to predict these controlling principles and standards underlying the issues in the case. Review Section 11.1(E).

I. New and Novel Explanations

An important goal of summation is providing an explanation of the case that has not been thought of or considered by the decision maker. The advocate should strive to present fresh ideas and novel explanations and interpretations of the facts, law, and events. An adroit advocate provides insights into a case that are not readily apparent from the evidence. The use of this acumen can have a transformational impact on the case result.

J. Urging a Result

The closing argument is the last opportunity the attorney has to ask for a specific outcome, and it should be stated clearly and convincingly.

K. Limited Coverage

The attorney is not required to summarize or comment upon all the facts, opinions, inferences, and law involved in a case. A failure to comment on and refute a credible position or defense developed by opposing counsel may be a tactical error. A decision not to address an issue, an opponent’s theory, or a particular fact should be based on an analysis of the importance of that subject and the ability of the lawyer to persuasively explain away a contrary position. It may be that avoiding a negative issue is appropriate, and if so, the advocate may move on to a positive comment.

L. Using Creative Approaches

Summation provides advocates with an opportunity to use creative explanations to bolster a case. Resourceful displays and inventive descriptions can be quite impactful and memorable. When used appropriately, they can have a very favorable impact on claims and defenses. For examples:

Creative presentation. In an employment discrimination action, the plaintiff can fashion charts and diagrams based on groups of employees hired, retained, promoted, and fired to display how the defendant business committed discriminatory acts. These demonstrative evidence exhibits can be based on the data and statistics entered into evidence and can depict convincing overt discriminatory acts and conducts.

Creative events. “Day in the life” videos display the living experiences of parties after an accident. A video of a plaintiff with paraplegia seeking money damages can realistically portray life events including eating, exercising, working, driving, bathing, and sleeping. A timely video of a plaintiff offered by the defense showing plaintiff engaged in sports the plaintiff contends can no longer be performed can vividly impeach the plaintiff’s version of the injuries.

Creative anecdotes. An advocate can establish gross negligence by using past events to portray an opponent who fails to heed clear warnings or follow correct protocols. The history of a ship captain who failed to take proper and careful steps to avoid hazards or follow procedures can be used by analogy in a business fraud case against the CFO. This technique can effectively contrast scenes of historical happenings with actual events in a case to graphically depict purported misfeasance and malfeasance.

Creative metaphors. Literature may provide a source of stories that parallel the circumstances of events and enhance the personal dimensions of a case. The lyrics of a tender poem could be used in a case involving the death of a loved one caused by the defendant’s negligence. Famous sayings, maxims, proverbs, or well-known quotations can bolster an inspirational argument, or highlight a compelling criminal defense point.

Creative use of evidence. Cases involving documents present opportunities to craft a descriptive summary of incidents. A case that involves many, and sometimes conflicting, emails can be explained by a comparison summary of the highlighted portions of the relevant emails. This method can effectively contrast the real evidence with the oral testimony of witnesses.

*Creative Use of Data. *While empirical, objective data is what it is, efforts to construe, portray, and interpret it can produce a dynamic consequence. A Gen AI system may be able to distill massive volumes of otherwise overlooked factual information, revealing insights that humans may have missed. For example, in a fraud case, an LLM-backed tool could analyze massive datasets of compiled data, revealing that the defending party was operating a broad scam resulting in a financially disastrous swindle.

Creative illustrative evidence. Events can be re-created to show that an event could or could not have occurred according to the way a party claims it happened. A computer generated graphic display of the cause of a fire claimed to have been started by a defendant can demonstrate it could not have started that way based on explanatory expert testimony.

*Creative summation. *The relevant testimony of key witnesses can be contrasted. LLMs can search transcripts, extracting the most-salient testimony for each claim, allowing advocates to present and compare highlights. Or a comparative chart displayed with a document camera, smart board, or easel pad can list the contrasted evidence. The closing advocate can then offer reasons to explain why supportive witnesses are more credible and believable.

Summation Preparation

A. Early and Continuing Preparation

The planning of a case begins with the preparation of the closing argument. See § 2.4. Summation provides the focal point for the overall claims or defenses. Throughout an action, the advocate should be preparing the fact finder for what will be heard during the closing. Summation should reemphasize the theory of the case previously presented. The factual summary and legal theories that were selected prior to the trial or hearing provide a framework of ideas for the final argument. While a closing is developed in advance, it must be refined and revised depending on how the evidence develops during the case.

1. Jury Selection

In a jury trial, the first opportunity to present information is during jury selection. The attorney is prohibited from directly arguing the case in this initial stage of the trial, but may inform the potential jurors about claims and defenses. Through questions, the attorney can prepare the jurors for what they will hear and see during the trial. During summation, references may be made to jury selection responses. The attorney may attempt to persuade jurors to render a favorable verdict by asking questions during jury selection, and then later during closing argument, refer back to the response or commitment the jurors gave.

For example, in a civil case involving damages, plaintiff’s counsel during jury selection can ask questions of the jurors regarding their ability to return a verdict for a significant amount of money if substantial damages are proven. During summation, counsel may refer to their responses to willingly award appropriate damages based on the evidence presented.

2. Opening Statement

Opening statement provides an opportunity to begin to lay a foundation for the closing argument. During an opening, the attorney explains the evidence that will be discussed during final argument. What is presented during the opening should be consistent with the summation, otherwise counsel will appear to have failed to prove part of the case.

3. Presenting the Evidence

Direct and cross-examination testimony and exhibits develop the facts that were initially explained during the opening statement. The comprehensive and credible presentation of evidence is essential to complete the factual and legal foundation for summation.

B. Jury Trial Instructions

Prior to the closing argument in a jury trial, the judge informs the attorneys of the precise instructions of law to be provided to the jurors. In most jurisdictions, the judge’s instructions to the jury take place after summation. In other jurisdictions, the judge charges the jurors before summation. The advocate must review these final instructions and make certain the evidence explained in the final argument supports the law that will be explained by the judge. See § 12.2.

All statements of law made by the advocate must be accurate. The judge will tell the jury that if counsel has explained the law differently than the judge, then the jury must rely on the judge’s recitations. If the attorney misstates the law, the attorney loses credibility and diminishes the summation’s impact. If the lawyer states the law correctly, even using the same words as the judge, then the result can raise the lawyer’s credibility and positively reinforce the summation.

C. Identifying Pivotal Issues

The advocate should seek to simplify the issues for the decision makers. A review of the factual summaries and legal theories will determine which facts and what legal elements are undisputed and which controversial issues remain disputed. Evidence that has been stipulated or uncontradicted may resolve some issues.

The following presents a closing argument framework:

1. Believable Story

• Identify reasons why the story ought to be believed.
• Use analogies or common-sense explanations.
• Rely on favorable legal principles.

2. Credibility of a Witness

• Summarize the witness’s testimony.
• Describe the witness’s favorable demeanor.
• Rely on exhibits introduced through the witness.
• Draw on corroborating testimony or exhibits.
• Use reasons that support the witness’s credibility.
• Attack opposing witnesses with contradictory evidence.
• Describe the opposing witness’s unfavorable demeanor.

3. Reasonable Inferences

• Summarize favorable testimony.
• Identify supportive facts and lay and expert opinions.
• Rely upon favorable law.
• Employ supporting anecdotes or metaphors.

4. Application of Law to Facts

• Reasonably interpret the law.
• Specifically apply the legal standards to the evidence.

5. Available Exhibits and Visual Aids

• Select and show real evidence exhibits.
• Plan to display demonstrative exhibits.
• Re-use visual aids that were used in the opening statement.
• Create visual aids to be used during closing.

6. Consider the Perspective and Views of Decision Makers

• Discern what values and beliefs influence them.
• Consider what final questions they need answered.
• Make sure all the crucial issues have been addressed.

D. Anticipating Opposing Positions

In preparing summation, a lawyer needs to anticipate and predict the various positions advanced by the opponent. By the close of the evidence, an advocate will likely know what opposing counsel will argue in summation and can analyze how best to address those arguments and how to effectively counter or reduce the adverse impact of the opposition closing. Gen AI and LLMs can assist in identifying and parrying opposing positions.

An excellent use of AI platforms is virtual shadowboxing: Anticipating what the other side might argue. For example, LLMs can analyze the entire case record, including evidence, witness testimonies, and earlier court proceedings, to provide potential arguments that opposing counsel might make. Gen AI can identify patterns and common strategies used by opposing counsel in similar cases, helping an advocate understand the most likely points of attack, enabling them to craft targeted and effective rebuttals.

Additionally, AI systems can simulate potential opposing arguments based on the available evidence and legal principles. By generating a range of possible positions, LLMs might allow advocates to explore different scenarios and prepare counterarguments. This proactive approach can ensure that the advocate can respond confidently and comprehensively to the opposition’s arguments, however broadly afield those arguments might be.

Suppose a lawyer is defending a client in a breach of contract case. Gen AI can review the contract, the parties’ communications, the various depositions, the lawyers’ lines of questioning, and the lawyers’ arguments in motion practice. Based on these analyses, LLMs could anticipate that opposing counsel might argue that the client failed to meet specific contractual terms, causing substantial damages. These platforms can also suggests possible counterarguments, such as demonstrating that the contract terms were ambiguous or that the opposing party failed to mitigate damages.

By using these AI tools to help anticipate potential counter-positions, the lawyer can prepare a robust and well-supported summation that directly addresses the opposition’s arguments, reducing their impact.

E. Selecting Exhibits and Visual Aids

Considerations regarding what exhibits and visual aids should be used during summation include: the impact they may have on the decision maker, the importance of the exhibits in the case, and how effectively visual aids can be employed. Real and demonstrative evidence, deposition transcripts, witness statements, discovery responses, and any other exhibit that has been introduced during the case may be used during closing argument. Visual aids may also be created that highlight summation, such as: a summary of evidence or argument on a poster board or monitor screen; handwritten notes by the attorney on a whiteboard or easel page; a printed timeline on a chart; a descriptive outline of damages; a 3D slide presentation; a summary listing of the issues to be decided; a computer generated depiction of events; and an enlarged copy of the verdict form in a jury trial. See § 8.8(B).

F. Meeting Expectations

The same considerations about the expectations of jurors, judges, arbitrators, and ALJs regarding opening statements apply to final arguments. See § 6.2(F). As described previously, contemporary fact finders/decision makers are influenced by what they see and hear on television, in the movies, on podcasts, social media, and websites, and by observing video and live presentations. They may expect lawyers to meet and exceed these performances. Advocates need to craft closings that highlight the favorable facts and the supportive law and which also reasonably meet the expectations of their legal audience.

G. Length of Summation

Summation should be long enough to cover the essential arguments of the case, yet short enough to maintain the decision maker’s attention. The reasonable, optimum length for a closing argument varies depending upon the case’s circumstances and complexity, the attorney’s speaking ability, and whether the case is tried before a jury or a professional decision maker. Thorough closing arguments can often last between thirty and sixty minutes. Simple cases permit shorter summations. Final arguments in complicated and lengthy cases take longer. The duration of a summation commonly reflects the proportional time it took to try the case.

The use of summaries, anecdotes, and analogies may make summation more interesting. The use of visual aids and exhibits can enhance the presentation and make a summation easier to follow. If rebuttal is permitted, the attorney may need to reserve time for rebuttal in advance or by requesting permission.

Judges, arbitrators, and ALJs ordinarily ask an attorney how long the closing argument will take and typically allow a sufficient amount of time for summation. They usually have broad discretion in expanding or restricting the time available. They will limit the time if the requested amount is unnecessarily long or out of proportion to the length of the trial or hearing or the issues to be resolved. They may also allow additional time if counsel provides legitimate reasons.

H. Order and Sequence

The general rule is that the party who has the burden of proof closes last. Because the plaintiff/claimant/prosecutor has such a burden, they argue last. However, in a few jurisdictions the order is different: defense will have the last opportunity to present.

In jurisdictions that permit rebuttal argument, there are three summations: the first argument by the party with the burden, the opposing argument, and a rebuttal argument. In those jurisdictions that do not permit rebuttal, there are two summations: the defense argues first followed by the plaintiff/claimant/prosecutor. In civil cases, in which both parties can carry burdens of proof, usually the plaintiff/claimant has the opportunity to have the final argument. If the burden of proof rests with the civil defendant/respondent, then the defense is permitted the last closing argument.

The attorney who argues last usually has an advantage because the attorney can rebut the opposing lawyer’s arguments. The lawyer who argues first and has no rebuttal needs to anticipate what opposing counsel will present and counter those points. An advocate who has rebuttal can partially divide the presentations. See § 11.3(D).

I. Rebuttal Argument

In jurisdictions with rebuttal, the advocate must decide what to include in the initial closing and what to save for refutation. A rebuttal lawyer may prefer to preserve some important points to reduce the chance opposing counsel can counter them. Rebuttal summation should emphasize the pivotal issues not covered during the initial closing and counter points made by the opponent. Usually, the scope of rebuttal is limited to the points made during the opponent’s argument that were not explained during the initial summation. Practically, however, the scope of rebuttal is broad because the opposing lawyer’s closing argument generally covers all of the case’s important issues.

A rebuttal is more effective if begun by advancing positive reasons in support of a favorable decision, instead of beginning with defensive explanations. An opponent’s points can be countered during or after presenting this affirmative presentation. Rebuttal summation can be prepared in advance by predicting what the other attorney will argue. The preparation should include a persuasive and perhaps dramatic conclusion appropriate for the case.

J. Prepared Outline/Detailed Script

The final argument outline that was drafted during case preparation will need to be revised. The closing outline should include all parts of the argument to make certain that every matter is addressed. Form 11.1 provides an outline of summation factors that can be included, and Gen AI may be able to improve and enhance this composition.

Some lawyers prefer to prepare a complete closing argument. This approach helps the attorney finalize the contents of summation and helps determine whether some matter has been omitted. However, reading a prepared script of a closing argument can bore the listeners and significantly diminish the argument’s persuasive capacity.

In contrast, a summation outline should be sufficient and will permit the advocate to be more persuasive. The outline should be as detailed as necessary to assist counsel in presenting a complete and accurate closing. Portions of this outline can be displayed with a visual aid that permits the decision maker to follow along. The visual aid can be displayed on a computer monitor, or printed on a poster board, or written on a display board or easel paper. See § 11.3(E).

LLMs can significantly aid in developing and revising the closing argument outline through enhancing structure, thoroughness, and coherence. When revising the outline, this AI tool can help the advocate analyze the case materials, identifying argumentative gaps or weak points that may have been overlooked. By cross-referencing Form 11.1, an LLM can ensure all summation factors are included, providing a detailed and structured framework.

Furthermore, LLMs can suggest improvements to enhance persuasiveness. They can propose alternative phrasing, highlight key evidence, and recommend a logical flow that maximizes the impact on the decision maker. This AI-enhanced refinement can help ensure that the closing argument is both complete and compelling.

K. Practice and Rehearsal

The final argument must be rehearsed. Practice permits the attorney to improve both the content and the style of delivery. The attorney may rehearse the summation before colleagues, or on a video recording for review and critique, or in front of a mirror. The use of visual aids and exhibits also needs to be rehearsed.

Thorough preparation and repeated practice enhances the advocate’s ability to be effective. When presenting the closing argument, the attorney should not necessarily attempt to recall all the exact phrases used during the practice sessions. Expressing the important concepts and key words may be persuasive, unless such expressions need to be precise and exacting. A flowing and convincing argument can be sincerely presented when the attorney is comfortable with the material and the delivery.

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L. Limitations and Restrictions

Counsel have broad latitude in presenting a closing argument, but there are restrictions. The attorney needs to ascertain before summation what applicable rules regulate the performance, and whether there are any specific restrictions or time limitations. This knowledge avoids having the presentation interrupted by objections. Prevailing practice and procedures reasonably limit what can be done, including prohibitions on the misuse of distorted visual aids, false explanations, unfounded facts, and unfairly prejudicial exhibits. See § 11.7.

Summation Organization

A. Orderly Structure

The crafting of an effective summation structure depends upon the theories, facts, law, circumstances, and strategies of the case. The following are examples of different orderly arrangements.

1. Chronology

The final argument can follow the sequence of the story.

2. Flashback

Closing can begin with the conclusion of the story, which the fact finder has already heard, and flashback to earlier events.

3. Undisputed and Disputed Facts

The evidence can be explained first by describing the undisputed facts and then highlighting the disputed facts, with an explanation that the facts supporting the advocate’s case are what actually happened.

4. Order of Key Witnesses

If key witnesses testified in a logical or reasonable order, final argument can be structured based on their testimony.

5. Issues, Positions, Topics

Summation can be organized based on the order the issues, positions, or topics were presented at the trial or hearing.

6. Documents and Exhibits

A case dependent on documents may be structured around the most relevant and persuasive exhibits.

7. Claims or Defenses

The organization of a closing can be based on the claims or defenses. For example, claimant’s counsel in a contract case can present an argument based on the factors that prove the existence of a breach of warranty, and defense counsel may organize an argument based on the defenses supported by the facts. For another example, a criminal defense attorney can structure a closing based on the number of reasonable doubts.

8. Liability and Damages

In civil cases, the final argument could begin with an explanation of the liability issues followed by the damage issues, or vice versa.

9. The Law, Jury Instructions, Verdict Form

Summation can be based on the elements of the applicable law or order of the substantive jury instructions and verdict form. For example, in a criminal case, the prosecutor can structure a final argument by following the elements to be proved in a burglary case. In a civil contract dispute, respondent’s counsel can present a final argument that rebuts the elements of law covering the creation of a contract, its breach, and damages. In a jury trial, a verdict form that contains special interrogatories provides an organized way of reviewing the evidence. The jurors will sequentially answer these questions as they appear in the form, and counsel can use the same format during closing argument.

10. Multiple Substructures

Most summations employ several of these alternative structures. For example, a final argument may contain a description of undisputed facts, followed by a narrative chronology of the disputed facts, followed by an explanation of legal elements. Section 2.6 explained the various issues that can be decided in a case. Each of these issues may be described during summation by employing different sequences.

B. The Introduction

Final argument should begin with an introduction that draws the decision maker’s attention and interest to the summation’s content. The attention level will usually be high at the beginning of summation as the case is drawing to a close. The introduction can initially establish the scope and focus of the presentation. The best approach depends upon the facts and circumstances, themes and theories, and the primary goals described in the opening statement.

1. Case Theory

An effective way to begin the closing argument is to summarize in several sentences the case’s factual summaries and legal theories. This approach reinforces what the decision maker has heard throughout the trial or hearing.

Example (Civil Claimant):

This case was about a job that was arbitrarily and illegally taken from a hardworking and long-suffering woman. This case is about Beryl Patmore and her right to be treated fairly and decently. This case is not about some fake or exaggerated facts. What you heard from this witness stand and what you read from these documents clearly proved that her legal rights were violated. And it all happened because of the bungling, mismanagement, and illegal actions by this corporate employer. For the past two days this unfortunate story unfolded before you in this arbitration.

Example (Civil Plaintiff):

This lawsuit is about safety and saving lives. Mr. Formby had a right to the safe functioning of the product he bought from the defendant. He had a right to expect he would not be electrocuted by a defectively designed product—a tragedy that could have been easily prevented by inexpensive protections. Insulation protects people against shock and could have and would have prevented his unnecessary death. A small expense of $65 for a ceramic insulator on the chain of this window washer’s harness—would have prevented the excruciating electrocution of George Formby.

2. Memorable Introduction

A memorable introductory statement attempts to establish an atmosphere, set a tone, and grab the jury’s attention. A dramatic statement appropriate to the case and presented in a sincere way can be effective.

Example (Civil Plaintiff):

What is more precious than the birth of a child? A child who is healthy and who has a full life to live. To love, to cry, to laugh, to fail, to succeed. What is more tragic than the birth of a child who is born without the ability to take care of herself, to ever talk, to ever tell her parents how much she loves them, to ever fail or succeed at school or work? This is the fate of Lateefah.

Example (Criminal Prosecution):

Members of the Jury, that man (pointing to the defendant) on the morning of August 16 walked into his garage, opened up his toolbox, and pulled out a claw hammer. That man (looking at the defendant), grasping the claw hammer in his hand, walked from his garage, through the kitchen, up the stairway, into the bedroom of their home, and deliberately stood over his wife, who was peacefully asleep. That man, the defendant Maydole, intentionally raised that claw hammer in the air and with all his might smashed that claw hammer into the face of the woman who loved him and lived with him until he ruthlessly killed her.

3. Outline of Summation

Summation may begin with an explanation of the outline of the presentation. The decision maker may find it easier to follow the argument if they know how it is organized and what structure the attorney will use.

Example (Contract Claimant):

This presentation consists of three parts—the same three parts I discussed during opening statement. First, I will show how the evidence establishes the existence of a valid and enforceable contract. Second, I’ll explain that the evidence clearly establishes why and how the respondent breached its contract with the claimant. Third, I will review with you the damages my client, Tuskegee Institute, incurred that defendant is obligated to pay.

4. Explanation of Summation for Jurors

In jury trials, final argument can begin with an explanation of the purpose of summation. The advantage of these preliminary remarks is that the jurors may better understand the reasons for closing argument. The disadvantage of these remarks is that they may not be the most effective and persuasive way to begin summation.

Example (General):

We are now about to come to the end of this trial. Soon you will deliberate together and reach a verdict on behalf of Effie and Avis Hotchkiss. This part of the trial—summation—provides me with an opportunity to speak to you for the last time. What I will say to you will be consistent with what I’ve said to you before and with what you’ve heard and seen during this trial.

Example (General):

Over the past three weeks you have heard the testimony of many witnesses and have seen Facebook discussions, Instagram posts, and YouTube videos. On the first day, I presented to you an opening statement—a story of what you would hear and see. Today, I’ll summarize that evidence and explain how the facts and law lead you to the conclusion that my client, Milo Hoffman, is entitled to a verdict in this case against Gary Winston.

These introductory remarks are sometimes used because attorneys need something easy to say to reduce their nervousness, or because they have heard another lawyer make similar statements, or because they have not considered alternative introductory remarks. Many advocates prefer not to begin summation with these explanatory remarks but may delay making such comments until after they explain their case theory or use an alternative attention-grabbing statement.

5. Expressing Gratitude

It is customary for many counsel during summation to thank the decision makers for their attention and time. A statement of appreciation should be sincere, brief, and not patronizing. Whether the beginning of summation should include this statement or whether it should be mentioned later, if it all, depends on the preference of counsel. Some lawyers believe there is no need to extend thanks to professional decision makers who are doing their job. Some attorneys always offer thanks, especially to jurors.

Example (General):

We have now come to the final stage of the case: summation. The witnesses have all testified. The documents have all been introduced. We, the attorneys, are almost done. You will shortly begin the process that we trust will bring a just and fair decision in favor of my client, Elsa Arendelelle. She, and all of us here, thank you for the time and attention you have devoted to this case.

6. Defense Introductions

Defense counsel can begin summation with any one of these suggested openings in jurisdictions where there is no rebuttal. In jurisdictions with rebuttal, defense follows the plaintiff/‌claimant/‌prosecutor. An alternative introductory statement may include a reference to a statement made by opposing counsel.

Example (Civil Defense):

You have just heard part of what happened on August 1. You didn’t hear an explanation of the entire actual story. You will now, and when you do, you’ll understand how the evidence supports the real events as told by the defendant Will Grimm and does not support the fake account made up by plaintiff Jacob Grimm.

Example (Defense Multiparty Case):

In some cases, there are two sides to a story. In this case, there are three parties and three sides, but only one believable story told very movingly by Goldilocks. During the trial, you heard and saw evidence introduced in bits and pieces supporting different versions of what happened four years ago. I’ll help piece together the third and actual account and show how the evidence leads you clearly to one conclusion: that Goldilocks told the only true story.

Example (Criminal Defense):

The prosecutor used this chart to try and explain the elements of the crime the government had to prove beyond a reasonable doubt, for you to consider that my client could have committed burglary. I’ll explain how the prosecutor failed to prove each of these elements, and then I’ll present to you five conclusive and reasonable doubts why Inspector Closeau did not commit any crime.

7. Rebuttal Introductions

An advocate with a rebuttal argument can begin with introductory comments or with remarks contradicting the opposing summation.

Example (Criminal Prosecution):

Defense counsel wants you to think there are several reasons which show there is reasonable doubt in this case that her client did not steal over one million dollars’ worth of jewelry. There are no such doubts. The evidence clearly establishes the guilt of the defendant. I told you during opening statement we would present evidence of guilt, and we did so, convincingly. I now want to clarify some remarks counsel made during her closing argument and answer a few questions you may have about how Closeau cleverly committed the crime of burglary.

8. Alternative Introductions

The lawyer should prepare introductory remarks that most effectively meet the primary goal the lawyer wants to achieve during the beginning of summation. Other approaches in addition to the previous examples may be considered. Attorneys may obtain ideas about introductions from the world of art and literature, including plays, movies, books, websites, AI sources, or from presentations by other attorneys.

Counsel may prepare several alternative introductory statements and, after selecting the most effective statement, modify the other statements and use them during some other stage of the closing. For example, an advocate may prefer to begin with an explanation of the case theory followed by an explanation of the purposes for summation. Or an advocate may prefer to begin with a dramatic statement followed by an explanation of the outline of the closing argument.

C. Body of Summation

Section 11.5 provides numerous illustrations of the content of the main body of final argument, which needs to be presented in an orderly manner. An example of such a structure is:

• Introductory statement,
• Portrayal of the theory of the case,
• Outline of pivotal issues,
• Summary of important facts, opinions, and inferences,
• Narrative of who, what, when, where, how, and why,
• Application of facts to support legal elements,
• Explanation of law or jury instructions and the verdict form,
• Depiction of important exhibits,
• Reiteration of strengths of the case,
• Highlight weaknesses of opposition,
• Reference to burden of proof,
• Focus on reasons supporting a favorable decision,
• Description of remedy sought,
• Responses to questions from judges in bench trials and from arbitrators and administrative law judges in hearings,
• Conclusion.

D. The Conclusion

Summation should conclude with a strong ending emphasizing persuasive points. The attorney should review the facts, the theories, and the law to create a conclusion that leaves the decision maker *wanting *to find in the favor of the client. The advocate’s ultimate goal is to make this favorable decision as straightforward and easy as possible.

Example (Criminal Defense):

Hajim’s liberty and future are in your hands. Years from now when you look back at this trial, you must be able to conclude that your verdict was the right one, that it was fair and just. The prosecutor may not remember this case, nor may the public. But you will not forget, and neither will Hajim. He must live all his life with your decision, which can only be not guilty.

Soon you will go and deliberate. Let me tell you a story to help direct you. There was an elderly man and a young boy.

The elderly man was known to be very wise. The young boy was scheming of a way to prove that the old man was not wise about everything. And so, the boy trapped a little bird, and he took it in his covered hands and went up to the man. He said, “Old man, old man, what do I have in my hands?” And the elderly man, being wise, said, “You have a little bird.” And the clever young boy said, “Tell me, old man, is the bird alive or dead?” (And the boy gleefully thought to himself: Now I have him. If the old man says the bird is alive, I’ll crush it and show him it was dead. And if he says it’s dead, I’ll open my hands and have the little bird fly away, proving him wrong.) And the wise elderly man looked at the clever boy directly in his eyes and said, “The answer is in your hands.” And now, the liberty and future of Hajim Bey is in your hands.

Example (Criminal Prosecution):

Defense counsel has asked you to find his client not guilty and send him home to live his life. Defense counsel was here to speak on behalf of his client who sits here in the courtroom. But there is someone who is not here and who no longer has a life. Her precious life came to a brutal end by the hands of the man who now begs you for mercy, who now pleas to go home. Where is the mercy he showed for Winona? She will never go home. She will never see her children, Marni and Coty, again. Who will speak for Winona? Members of the Jury, you will speak for her when you return the only verdict supported by the facts and law in this case: a verdict of guilty of murder in the first degree.

Example (Civil Plaintiff):

I’m going to close now. Defense counsel for Dan Hamline told you a number of times that you were not to decide this case based on sympathy you might have in this case for Marci Mitchell. Indeed, the judge will instruct you that you are to base your decision upon the facts of this case and not upon passion or prejudice. It would be natural for you to feel sympathy for Ms. Mitchell, who told you in this courtroom how she is struggling to maintain the operation of her neighborhood service station and food store she has worked hard to maintain for 10 years.

Members of the Jury, Marci Mitchell does not want your sympathy. Her family and friends can empathize with her. Ms. Mitchell wants only what she is legally entitled to. She has a right to her money from the defendant, the money he clearly owes her under the franchise agreement. Marci Mitchell deserves a verdict in the amount of $975,000, an amount supported by the facts, the law, and your wise judgment.

E. Final Argument Critique

After constructing the summation, the attorney can review the following factors to determine if the argument is effective:

• Does it explain why the judge, arbitrator, ALJ, or jury should find for the client?
• Does it make the fact finder want to find for the client?
• Does it tell the decision maker how to find for the client?
• Is it consistent with the values and viewpoints of the judge, arbitrator, ALJ, or jurors?
• Does it satisfy questions the fact finder likely has?
• Does it present supportive explanations the decision maker may not have considered?
• Does summation cover all issues the fact finder/decision maker has to decide in favor of the client?

Advocates may have difficulty constructing a closing argument that covers everything that needs to be said. Several barriers must be overcome to construct a comprehensive closing. First, the attorney who knows the case very well may have some trouble deciding what the decision maker, who does not know the case as well, needs to be told. Second, every case has some gaps, caused by missing evidence or natural omissions, which need to be covered during closing. If gaps or omitted evidence are not explained, the fact finder may well draw conclusions and inferences, which may not support the decision requested by the attorney. Third, the natural curiosity of the decision maker needs to be satisfied. Information that is not legally relevant to the case may need to be discussed to make a more complete story and to satisfy the fact finder’s curiosity.

The advocate should consider in advance what the decision maker may want to know, fill in these spaces, and address these issues during summation. Conversations with decision makers after a case is over (where permitted) sometimes reveal they deliberated over matters counsel did not consider important or were not covered in detail during the action. These discussions provide an opportunity to learn from hindsight what should have been presented during the trial or hearing. One way of ascertaining this information in advance is to rehearse in front of colleagues or friends and ask them what is missing, what prompts their curiosity, and what questions they have. Focus groups and mock juries can also be very helpful in testing the effectiveness of an argument. Similarly, GenAI and LLMs can help give untiring, limitless, and fresh perspectives to illuminate ways that might satisfy the fact finder’s curiosity and unanswered questions.

Relying on available sources, the advocate can then present an argument that not only contains legally relevant evidence but also provides information that satisfies curiosity. For example, the evidence in a theft case may include testimony by a victim that the defendant stole her purse as she walked home after work and that she called the police immediately after the theft when she arrived at her apartment. The prosecutor would have the victim describe how she got in her apartment if her stolen purse contained her apartment key. This answer prevents the jurors from incorrectly speculating how she could have gotten in her apartment, information that is legally immaterial.

Summation Content

One of the primary goals of closing argument is for the advocate to provide reasons that support a favorable decision. The attorney has broad latitude in explaining these reasons that are based on the theories of the case, facts, opinions, inferences, conclusions, and the law. Factors to consider for inclusion in summation include the following.

A. Argument and Assertions

1. Types of Arguments

Summation allows counsel to assert relevant contentions and positions that fall within the broad definition of argument. An attorney may:

a. Draw Reasonable Inferences from Direct or Circumstantial Evidence

Example (Civil Defense):

My clients, Blake and Brady, the defendants, received a hand-delivered note at their home from the plaintiff at about 6 p.m. on July 20—the very day the plaintiff claims her life was threatened by them. I’m sure you’ll agree that someone supposedly in fear for her life and scared of the defendants is not going to personally hand-deliver a note to the house of those she feared after a supposed threat was made. What can we infer from this fact? That the plaintiff’s alleged claim of civil assault by my clients is not supported by the facts. She made it up.

b. Suggest That Evidence Implies a Reasonable Conclusion

Example (Civil Claimant):

The fact that Lake Minnetonka Bank hired three part-time computer clerks, that the manager took Jeffrey Michael off his computer duties once the temporary clerks were trained and put him to work cleaning the office—a task degrading and not related to his job—and that he was “laid off” during the same week two additional part-timers were hired all support one conclusion: The Bank unfairly and illegally wanted to get rid of Jeffrey Michael because he was a full time employee with benefits.

c. Present Conclusions Based upon the Circumstances

Example (Civil Defense):

The plaintiff, Emma Elamein, drank a bottle of bourbon before the snowstorm ended and her drive needed clearing. Her friend, Connor, saw her stumbling around in her garage with a lit cigarette dangling from her mouth when she tried to pour gasoline from a heavy 5 gallon large canister into the fuel tank of her Blizzard Snowblower. He yelled to her, but too late, before the fatal explosion. She acted extremely irresponsibly and failed to take reasonable steps for her own safety when she tragically caused her own death.

d. Recommend the Decision Maker Apply Common Sense

Example (General):

You are to use your common sense when deciding this case. You are to rely upon your understanding of how reasonable people act in deciding how probable and likely is Chase’s story. You are to use your good judgment in concluding how unlikely and untrue that story really is. And when you do, you will undoubtedly reject the bizarre made-up coincidences they want you to believe.

e. Suggest That Life Experiences Help Determine Facts

Example (Civil Plaintiff):

You know what it means in this society to be attractive—not to be ugly. You understand you can’t tell Rita Riley that her grotesque scars don’t matter. Everything Rita faces in life will remind her she is scarred—that she will unfairly be seen as hideous and repulsive. You know what value many in our society place on physical beauty and good looks. Rita may never meet anyone face-to-face without that person’s look reflecting the horror of her disfigurement.

2. The Narrative Story

The explanation of the facts may be told in a story form that includes descriptions of the scene, the characters, and the event. The goal of the attorney should be to summarize facts in a way that is reasonable and consistent with the recollection of the fact finder.

Example (Civil Plaintiff):

Elaine Santaluz began working part-time for Spearfish Bank when she was 59 years old in order to supplement her partner’s income. Silve Santaluz’s income was severely cut back because of retirement due to a partial knee replacement. Elaine’s work was praised; she received annual salary merit raises; she was promoted to a full time position. But then Spearfish Bank was taken over by Grant Park State Bank. Suddenly Elaine was pressured into working nearly ten hours a day. Next, she was given demeaning tasks to do that had nothing to do with her skills as a financial analyst. Finally, Elaine was ordered to train a new employee, who was under 30 years of age. After she trained this full time worker, the Bank terminated Elaine. They fired her: Because she was 65 years old and was paid a lot more than her replacement and much younger worker. Grant Park State Bank unlawfully and unjustly got rid of Elaine. . . and never thanked or recognized her for her many years of loyal service.

3. Explaining Why Something Happened

The evidence presented may tell the decision maker what happened and how something happened. The attorney may, during closing argument, need to explain why something happened.

Example (Civil Plaintiff):

You have heard the evidence in this case and you know what happened during the surgery and how Dr. Isobel Stevens miscalculated, slipped with her hand, and blundered. You must decide why she performed the surgery the way she did. The evidence leads you to only one conclusion: She was negligent and made a tragic mistake. Even though she’s an experienced surgeon, she is still human, and she committed malpractice. Dr. Stevens did not intend to hurt my client, Kamala Khan. She didn’t plan to puncture Kamala’s internal organs. But she did. She was irresponsible and must be held accountable for the severe and painful injuries Kamala has suffered.

B. Evidence Explanations

1. Explanation of the Evidence

A substantial part of a closing argument consists of the lawyer summarizing and explaining the evidence. These descriptions should be consistent both with the facts described in the opening statement and with the evidence produced during the case. Some advocates take closing argument to an extreme and argue that certain evidence has more value than it deserves. The attorney should be careful not to exaggerate the evidence presented because decision makers may easily recognize such overstatements and lose faith in the attorney’s credibility.

Example (General):

The judge and the lawyers refer to this part of the case as closing argument. I do not intend to argue but rather to explain the evidence to you. Time does not allow me to cover every bit of testimony or every piece of evidence. I may not mention some things that you recall, but I’m sure you will remember those matters and discuss them during your deliberation. Now, I’ll summarize the evidence you have heard and seen which clearly and convincingly supports a verdict on behalf of Arya Brooks.

2. Witnesses

The lawyer may summarize the evidence by connecting the witnesses with the facts and opinions. Witnesses who were especially effective, persuasive, or credible should be referred to by name. If a large number of witnesses testify over a lengthy period of time, the decision maker may have some difficulty remembering who testified about what. The attorney should not only identify the witnesses but also describe when they testified and what they said.

Example (Civil Defendant):

We brought before you the testimony of the two people who talked to each other in the cell phone conversation on October 15. First, there was Louis Armstrong. Mr. Armstrong was the manager of the Cosmos Band. He took the stand and told you he had been managing the band for two years and during that October 15 phone conversation he told Ms. Tatooine the band was available to play on New Year’s Eve. After he testified, Ms. Tatooine testified. She was the manager of the Mos Eisley Cantina. Ms. Tatooine told you it was her job to contract with bands to play at the Cantina. She also told you Louis Armstrong said to her in that same phone conversation on October 15 that the Cosmos Band was available to play on New Year’s Eve.

3. Credibility of Witnesses

An attorney usually needs to comment on the credibility of a witness, demonstrate how an observation or statement is inaccurate, explain why a witness is biased or prejudiced, and comment on the demeanor of the witness. Impeachment techniques may be used during the case to establish facts to reduce credibility. See § 9.7. The lawyer can restate the facts developed on cross-examination, which establish why a witness should not be believed or how the testimony is improbable or implausible. In a jury trial, counsel may also refer to the jury instruction on credibility and explain how those factors reduce the believability of opposing witnesses.

Example (Lie):

You heard the plaintiff’s boss, Alberta Dowlin, testify that she fired the plaintiff because the plaintiff lied on her employment application. The plaintiff had lied on that application not once but on every page. Page one: the plaintiff was not honorably discharged from the Marines, she was never a Marine. Page two: the plaintiff was not laid off from Rapid City Community College, she was fired for making repeated demeaning comments. Page three: the plaintiff did not receive a PhD in linguistics from Black Hills University, her only degree was a B.A. in speech and communication from Sturgis College. Plaintiff is not an honest or trustworthy person.

Example (Mistake):

The judge will tell you that you decide whether a witness is credible or not, whether a witness is to be believed or not. There are two key witnesses who testified for the plaintiff. You have to determine whether they saw what they say they saw. The judge will give you an instruction regarding the credibility of witnesses that will help you in making your decision.

There are several factors that influence the ability of an eyewitness to see what actually happened. One factor is how close they were to the scene of the accident. Another factor is what they were doing immediately before the accident. Another is how clear their line of vision was of the accident. Let’s apply these three factors to the testimony of the plaintiff’s two key witnesses: Lloyd Christmas and Harry Dunne. They were half a block away playing in a park that was surrounded by large, leafy trees. Now let’s go over their testimony in detail.

Example (Demeanor):

One of the factors you can consider in determining the credibility of a witness is the demeanor of the witness—the way they testify on direct and cross-examination. Do they appear to be telling the truth? Did they seem sure? Did they seem uncertain? Were they evasive? Did they hesitate? You will need to apply those standards to the testimony of Gordon Gekko.

You’ll recall that he was the stockbroker who works for the defendant, and that he testified in this case two days ago. During his direct examination, he appeared to be uncertain about where and when he met with the plaintiff. Counsel for defendant had to suggest and tell him the answer. If he was uncertain about that key piece of evidence, perhaps he was uncertain about other matters. During his cross-examination, when I asked him questions, his attitude changed, and his memory became worse. He was not as cooperative in answering my questions and giving you information the way he was when he answered questions asked by opposing counsel. He remembered fewer details about important conversations he had with his supervisor, the person for whom he is still working and who decides his bonuses.

Example (Relationship):

We all heard the testimony of the defendant’s wife. We all heard her testify on direct examination that her husband was with her the entire evening when the crime was committed. We all heard her testify on cross-examination that she loved her husband very much and continues to love him very much. There is nothing more beautiful than the bond that exists between a loving wife and husband. There is no doubt that Carmela Soprano loved her husband, Tony, before the murder, and that she loves him after the murder. She loves him because he is her husband. She loves him even though he is a murderer. And she naturally wants to give him an alibi and tell you he was with her at the time the murder was committed. Love causes many to lie for their loved ones. She would rather violate her oath to tell the truth than have you find him guilty.

4. Circumstantial Evidence

Evidence consists of both direct and circumstantial evidence. In a jury trial, the judge will give a jury instruction describing these types of evidence to the jurors, which often requires further explanation by the advocate including how the legal descriptions apply to the facts.

Example (General):

Circumstantial evidence can have the same persuasive power as direct evidence. An example of circumstantial evidence that demonstrates its strength and value is the story of Robinson Crusoe. You recall that Crusoe was on an island and he thought he was all alone. One morning he went down to the beach and he saw a footprint on the sand. Knowing that someone else was on the island, he became so overcome with emotion that he fainted. He didn’t see anyone, but he knew because of the footprint there was someone else on the island. He woke to find Friday, the person who made the footprint, standing beside him, who was to be his friend on the island. The footprint—the marks on the sand made by a human foot—was circumstantial evidence. His seeing Friday was direct evidence. Both were true and compelling. Let’s look for the footprints in this case that explain what happened.

Example (Criminal Defense):

There is no direct evidence in this case linking my client to the crime. There’s no DNA, no fingerprints, no hair samples, no blood specks—and no evidence you might expect there to be discovered by modern forensic science. The prosecution relies on unreliable circumstantial evidence in a feeble effort trying to prove the guilt of my client, but that evidence really proves nothing.

You understand how weak, inaccurate, and misleading this type of evidence is. Some of you may recall the story from the Bible regarding Joseph and his brothers. Joseph was the favorite son of his father, Jacob. His brothers were very envious of him and they sold him into slavery. They wanted their father to believe that Joseph was dead, and so they took Joseph’s coat and some goat’s blood, and they smeared the goat’s blood on the coat, and showed the coat to their father who believed that Joseph had been killed by some evil beast. Of course, the truth was that Joseph was alive, but his father thought him dead. And so, it is in this case. The truth is that my client is innocent. The prosecutor has no direct, compelling evidence proving guilt. You can’t rely on uncorroborated circumstantial evidence. If you did, you’d be making the same tragic mistake Joseph’s father did.

5. Detail and Corroboration

An accurate factual explanation has the advantage of refreshing the recollection of the decision maker and explaining the relationship between various types of evidence that may not have been obvious or made clear during the case. A detailed presentation has the disadvantage of increasing the risk that the decision maker’s memory of the evidence differs from that of the attorney’s explanation. And, a long and overly detailed presentation can become tedious and boring. Summation provides an opportunity to identify the primary sources of compelling evidence, to concisely describe specific sources of circumstantial and corroborating evidence, and to convincingly explain the connecting facts that may have been missed.

Example (Civil Defendant):

My client, TriCart ATV, is not liable for the tragic death of Ms. Magdalen because the facts establish that Mr. Oxford was not using reasonable care for her and his own safety. You heard testimony from Mr. Hampshire, a friend of his, that Mr. Oxford didn’t know how to use the all-terrain vehicle, and that Mr. Oxford put the owner’s manual—still in its unbroken plastic seal—on the shelf of the garage. Mr. Oxford’s wife, Catherine, testified that Exhibit No. 6, the owner’s manual, remained unopened, just as he had left it. You also heard Ms. Cambridge, a neighbor, testify that after Mr. Oxford started the ATV, he said: “Well, here goes. Hop on Magdalen. I want to see how fast this thing can go.”

6. Reference to Evidence

The factual explanation should employ words used by the witnesses or words that appear in documents. The attorney should neither overstate nor understate the facts. Quoting the testimony of a witness and mixing the quote with a factual summary can be an effective approach. Reading testimonial quotes directly from a transcript of the case may also be very persuasive. Reading from an exhibit or showing highlighted portions of the exhibit can be equally effective.

Example (Criminal Prosecution):

Yesterday you heard Sylvia Plath testify about meeting Ted Hughes after the Mateus poetry reading. She testified that Ted admitted his part in the crime. This testimony—which you heard yesterday—about what Ted said proves what he did:

Q: When did you next see Ted?

A: He picked me in his car up right after my English lit class, about 3:30.

Q: What did you do as you were riding together?

A: I talked about my day. I mentioned that I had been in Newnham Auditorium waiting for Mateus to arrive for a poetry reading, when all of a sudden several security officers came in and told us to go down to the lobby immediately.

Q: After you told him that, what was his reaction?

A: He laughed so hard he had to pull over to the side of the road. He told me then that at 12:45, just before the 1:00 reading was scheduled, he called Yeats, the secretary, and threatened that a bomb would go off in Newnham Auditorium if Mateus went ahead with the poetry reading.

Now, ladies and gentlemen, no reasonable person makes an admission like that unless he actually did what he admitted. Ted wanted to impress Sylvia. He wanted her to share in his secret.

C. Summation to Jurors

1. Explanation of Law

The judge will explain the law during final jury instructions. An attorney should summarize and explain pivotal instructions, and must accurately state the content of the instructions. Counsel can read from or quote the exact jury instructions. Some instructions may not adequately or clearly explain the law because they contain abstract legal concepts. In these situations, the lawyer may comment on the instructions and provide an expanded (and correct) description of the instruction and its meaning in simple, easy-to-understand language.

An accurate explanation of jury instructions can be very persuasive. The final instructions come from the judge, whom the jurors usually respect and understand to be impartial and the source of the law. Jurors are likely to be persuaded by an explanation by counsel that is supported by the instructions. A copy of the jury instructions is typically given to the jurors for use during deliberations, and an argument based upon these instructions will more likely be remembered and discussed by the jurors.

Example (Civil Defendant):

The law provides you with legal rules and doctrines to guide and assist you in reaching a verdict. These explanations are called instructions on the law. The judge has explained some of them to you already. The judge will explain more of them to you after we have completed our summation. Now I would like to discuss with you how those instructions support the defense claims.

This is an accident case. The judge will tell you about the law of negligence. I am reading from Instruction Number 19, and you can follow along on the monitor screen:

“Negligence is lack of ordinary care. It is the failure to exercise that degree of care which a reasonably prudent or careful person would have exercised under the same circumstance.”

That is the standard. That is the law: A person must do what a reasonable person would do under the same circumstances. And that is what the defendant, Sacagawea, did in this case. She acted very reasonably and quite prudently.

2. Special Interrogatories

A case may involve special interrogatories that require the jury to make specific findings of fact. These interrogatories may accompany a general or special verdict. The attorney may present the questions to the jury and urge the jurors to answer in a favorable, specific way. Rules and case law determine whether a lawyer can inform the jury that the answers may determine the outcome of the case. In most cases, but not all, counsel can comment upon the effect of special interrogatories.

Example (Civil Defendant):

There are several things the plaintiff Hanna Horvath has to prove to you before you can hold my client, Adam Sackler, responsible for what happened to her. To help you decide who is responsible, you will be given a list of questions you must answer in the jury room. The judge will provide you those questions. These questions appear on the screens in front of you, so we can go through them now to discuss how they should be answered.

The first question is: “Did the plaintiff and the defendant enter into a contract on May 1? _______ Yes, _______ No.” The judge will explain the legal factors that make up a contract. Those elements also appear on your monitors. Let’s apply the facts introduced in this case to each of these legal elements to discover that the answer to that question is: No.

3. Explaining the Jury System

In jury trials, it is common for counsel to explain the purpose the jury serves in our system of justice and the importance of the jury’s decision. These descriptions, if done sincerely and concisely, can be effective.

Example (Power of the Jury):

As jurors you are part of a tradition that is hundreds of years old. You are members of our local Rhenish township, and you have come together to decide the outcome of this case. Individually you are each a citizen. Collectively sitting here as jurors, you are part of our system of justice. You hold in your hands the power to judge the difference between right and wrong. Today you will exercise that power to set right what the defendant has done wrong.

Example (Conscience of the Community):

Jurors, you are the conscience of our Plymouth community. You represent its principles and values. You reflect the integrity and morals of our community through your decision. And, those standards will lead you to declare the defendant not guilty.

4. Request for Verdict

A closing argument must include an explanation of the specific outcome the attorney wants for the client. This explanation should be clear so the jurors understand what conclusion they must reach to find for a party. In most cases, the request will be a specific request for a verdict of guilty or not guilty or for a verdict for the plaintiff or defendant.

Example (General):

Verdict is a Latin word meaning to speak the truth, so by your verdict you are going to speak the truth here today.

Once you reach your decision, no one can change it. You can’t be called back and told, “That’s wrong. You didn’t do it right. Do it again.” What you do here today is done forever.

It’s also important that you reach your verdict for the right reason. Not only should the result be the right one—it is just as important that the reasons for it are based on the evidence.

Finally, your verdict must be fair and just. When you decide that the defendant Wile E. Coyote was not negligent and did not cause the accident, your decision will be the correct verdict and it will be fair and just, because it’s supported by the facts and law.

D. Effective Techniques

1. Analogies, Metaphors, Anecdotes

The advocate may wish to refer to similar situations, or use metaphors or tell an anecdotal story to make a point during summation. The images described by an attorney through an analogy or secular homily may assist the decision maker in understanding the point of law. An effective story will command the attention of the fact finders and will provide them with a comparison to determine the appropriateness of a point made during argument. An example of an anecdote to bolster circumstantial evidence is the story of Robinson Crusoe described in Section 11.5(B)(4). An example of an analogous event using metaphors follows.

**Example (Civil Plaintiff): **

They left a time bomb ticking at Bearpath Estates. It was just a matter of time before Seneca would use his master key to get into Phaedre’s apartment. It was just a matter of time before he would renew his acts of terror. That time struck on May 15 when Seneca, hiding in Phaedre’s kitchen, surprised her, held a knife to her throat, and brutally assaulted her. Bearpath Estates lit that fuse and started that time bomb ticking when Bearpath negligently hired Seneca on the basis of his resume with no references and no prior places of employment. Even when the Secretary of the Bearpath Board of Directors found him in a drunken and disorderly state and reported this to the Board, they did nothing. The Board could have defused the situation and spared Phaedre, but Board members didn’t make the one phone call or send a text or email to the authorities that would have stopped the disaster. One reference check would have informed Bearpath Estates that Seneca was on parole for another assault. But the Board didn’t take the time to investigate or fire him, and that was all the time he needed. They are responsible for Seneca exploding and viciously attacking and assaulting Phaedre.

While a carefully composed metaphor or analogy may assist the decision maker in understanding a concept, careful consideration should be given before one is used. If the analogy or metaphor is confusing or does not make sense, the point will be missed. If opposing counsel has an opportunity to argue following the use of an analogy or metaphor, the opponent could make this technique appear imprudent or unwise.

Example:

Plaintiff’s Attorney:

The agreement between Dolores Saki and Health Center, Incorporated was like a sinister web. Doctor Saki completed her residency and wanted to begin her pediatric practice. Health Center required her to sign an employment contract according to its terms: if she ever wanted to leave Health Center, she could not practice in a 100 mile radius of Santa Fe for two years. She knew she wanted to begin a practice in Santa Fe. What she didn’t know was that Health Center was not the kind of professional practice she wanted. They put profits before patients. They valued systems more than safety. And, they had entrapped her.

After three months, Dr. Saki had to resign. She couldn’t properly or safely treat her patients. She was caught in a web and she couldn’t pull away. The more she struggled and tried to reason with Health Center’s administration, the more menacingly loomed the corporate spider.

When Dr. Saki ventured from Health Center Incorporated, she tried starting her own office near Santa Fe. And HCI cruelly cast out its web again. An injunction closed her office and stopped her from earning a livelihood to support herself and her family in their modest home. She is unable to practice; her medical school loans are in default; her mortgage payments are overdue. Health Center, like a spider that stores up victims for later consumption, wrapped Dr. Saki in its web as an example for the rest of its employees.

Defendant’s Lawyer:

Members of the Jury, counsel has spent a lot of time talking about spiders and webs. However, this case is not about insects or bugs; it’s about facts and the law. Let’s consider the reality. Health Care Center is committed to providing patients with high quality and effective medical care. Doctor Dolores Saki is a competent, well-educated adult. She knew what she was doing when she signed her employment contract. She certainly could have sought advice from another professional—a doctor friend or even a lawyer. She chose not to. She voluntarily agreed to the terms of a very reasonable agreement, that benefited her. Now, she has unilaterally changed her mind. This community and you must hold her responsible for her commitments. She just wants out of this mutual agreement for no good or legitimate or legal reason. There is nothing menacing about Health Care. The Center provides vital and essential professional health services to the Santa Fe community.

2. Creativity

One of the primary tasks of the attorney in summation is to be creative and innovative and explain the significance of inferences. While the evidence may lead decision makers to clear and evident conclusions, the advocate’s task is to explain the less obvious connections. The advocate needs to highlight the subtle nuances of direct and circumstantial facts.

Example (Criminal Defendant):

Presume that the defendant is accused of assaulting the victim in an alley one block away from a bar where the defendant and victim and other customers had a fight.

My client, Claire Stenwick, has been accused of hiding in an alley, waiting for the victim to pass so that she could jump out and attack the victim with a big stick because of something that happened in the bar. My client did not hide in that alley, didn’t jump out, did not attack the victim. It was somebody else.

You recall that the victim, Ray Koval, said that he had never met my client before that night, did not know where my client lived, and didn’t tell my client where he lived. And you recall that Mr. Koval said he and my client never talked before or after their argument in the bar.

You may also recall during my cross-examination that Mr. Koval told us that when he later left the bar — as depicted here on this diagram — he could have left through the rear door on Mason Street, or he could have gone out through the front door and turned left and walked west toward Dixon Street, or he could have gone through the front door and crossed over toward First Avenue. Instead, he testified that he went out through the front door and turned right toward Madison Avenue.

You may have wondered why I asked those questions. His answers tell us that my client is innocent and didn’t assault him. My client, Ms. Stenwick, did not know where Mr. Koval lived. My client didn’t know which way he would leave when he left the bar that night. My client wouldn’t know to hide in an alley one block east on Madison Avenue. There was no way my client would have known whether Mr. Koval would have left the bar through the rear or front doors or which way he would have walked home—because my client didn’t know where he lived. Someone else was waiting in that dark alley who surprised and attacked him—either someone else from the bar who fought with Mr. Koval or a stranger ready to attack and perhaps rob anyone who passed. He was tragically beaten by that criminal while my client was on her way home.

3. Use of Exhibits

Section 11.3(E) described how to select real evidence, visual aids, and demonstrative evidence to be used in a case. Their design, placement, and use in closing argument can be very helpful in summarizing and explaining what happened. The importance of the evidence, the type of exhibit, the impact words and colors, the height of a trifold stand, the number and size of monitors, the vibrant images created by Gen AI, the location in the room for easy access and clear viewing, the placement in the closing, and the use of and reference to the exhibit are important considerations in determining whether the exhibit will aid or interfere with summation.

The use of exhibits and visual aids allows the attorney to approach a judge or arbitrator or ALJ or approach the jury box and point to, quote from, or use the exhibit there. This technique can boost the impact of a summation point and add interest and clarity.

Example (Arbitration Defense Exhibit):

The most critical piece of evidence in this case did not come from the testimony of witnesses. The most important evidence is contained in Exhibit No. 1, the precise drawing created by the Claimant Feng Shui and sent to Respondent’s vendors. This exact drawing was introduced during the hearing, and I had it highlighted so we can focus on the meaning of its design.

Example (Defense Visual Aid):

Over the past two weeks of trial, you have heard from many witnesses and reviewed many documents. The judge will tell you that you must find my client not guilty if, based on all that evidence, you have a reasonable doubt that he committed a crime. In this case, the evidence reveals there are eight reasonable doubts. We prepared a chart listing those eight reasonable doubts and the supporting evidence. Please look at the monitor as we go over the numerous reasons why Gamal is not guilty.

4. Parallel Experiences

Decision makers will more likely accept an explanation of an event if something similar has happened to others. It can be helpful during summation to mention situations that other people might have experienced which resemble what happened in the case. For example, if the issue is the eyewitness identification of the defendant and the defense is that the witness misidentified the defendant, the defense attorney can suggest this happens to people in other parallel life situations.

Example (General):

Often, people at a party see someone from a distance across the room and recognize the person as a friend, only to approach that person and find out they were wrong.

At a restaurant, people call for their server only to be embarrassed because the person they called was another server, even though they had seen and talked with their server several times.

The witness in this case picked out the wrong person. And that is perfectly understandable. She was scared and frightened and didn’t expect to confront a stranger. At a party or restaurant, reasonable people make mistakes identifying friends or persons they meet even when they are relaxed. In this case, Frankie Heck was understandably afraid, in a strange place, with unexpected events happening ever so quickly. She made the same identification mistake so many others make.

5. Reason and Emotion

Summation may include appeals both to reason and to emotion. An explanation of the facts and law can support a logical reason why a party is entitled to win. An appeal to emotion may create a motivating force to support a decision based on reason and logic. Appeals to emotion create an atmosphere in the room and feelings within the decision maker to render a favorable decision.

An entreaty made only to logic and reason may diminish the humanistic elements of the case. Reasonable pleas for compassion and empathy can be as vital to an argument as other factors. Judges, arbitrators, ALJs, and jurors do not leave their humanity at home but bring it with them to decision making.

An approach emphasizing sentiments and attitudes that favor one side over the other may be effective, if expressed reasonably. A plaintiff lawyer may suggest that a large foreign corporation placed profits over local community safety. A prosecutor may imply that a deviant sexual predator needs to be removed from an elementary school neighborhood. A defendant lawyer may emphasize that a local small business owner is rightfully entitled to hire qualified workers and to fire unsuitable staff. Criminal defense counsel may assert that freedom is priceless.

The extent to which an advocate relies upon both emotion and reason to support an argument depends upon the circumstances of a case. With some cases it will be more effective for the attorney to emphasize a rational, logical explanation of the evidence and the law. With most cases, it will be effective for the lawyer to also rely on the affections, impressions, and feelings inherent in the case. An attorney must carefully balance the use of sentiment, compassion, and empathy. An attorney may make the presentation of an argument more dramatic by relying upon its emotional aspects, but must be cautious not to play to the passion and prejudice of a decision maker.

Example (General):

We all have feelings for what happened in this case. Those emotions are natural and appropriate. You should use those natural reactions in your evaluation of the facts of this case. This is why you will never be replaced by a computer decision maker. Only a person can understand and appreciate the facts of this case. You are not a robot, and you are not required to act like a robot. You are to use your appropriate feelings just as you are to use your reasoning in deciding this case. That doesn’t mean you should decide this case based on emotional reactions. Neither party is entitled to an outcome based on sympathy. But you may and you should have empathy for the parties in this case, including Shodan.

Two common basic emotions are like and dislike. Appeals to emotions during summation can be based on these two feelings. Generating a feeling of dislike or aversion toward a party sufficient to support a decision against that party can be difficult, unless the facts justify such an attack. A positive emotion is easier to establish to persuade the decision maker that a party is entitled to win. It may be more effective to suggest that a party is entitled to the benefit of a favorable and fair decision, rather than trying to show that an opposing party ought to be penalized or punished by losing a case.

Example (Civil Plaintiff):

Counsel for defendant has told you that there are some expenses Mr. and Ms. Gallagher will not incur as a result of Liam’s death, that there is some money they will not have to spend on their dead son. That is true. There are also some things they will never have to put up with or experience because Liam is no longer with them. They will never have to sit in the heat of the sun on a hot, July afternoon, watching Liam play Little League baseball. They will never have to worry about what kind of weird online video game he’s playing behind his closed bedroom door. They will never have to lay awake late at night, fearing where their teenage son is and why he isn’t home. They will not have to live through all that.

6. Rhetorical Questions

A rhetorical question can be an effective tool of persuasion because it directly involves the decision maker in the presentation. The essential feature of a rhetorical question is that the answer should be obvious.

Example (Civil Plaintiff):

(Counsel holding photograph.) Quasimodo is severely disfigured from this catastrophic accident. His injured back will require significant plastic surgery and painful grafting. Can anyone look at this picture and fail to see years of anguish— physical, mental, emotional—that will haunt him?

To avoid the possibility that the decision maker may not answer the rhetorical question correctly the attorney may provide the answer.

Example (Civil Defendant):

Was Garfield House Apartments negligent in inspecting, monitoring, and maintaining the Ruud water heater? Absolutely not. Garfield House Apartments had a maintenance manager periodically check the system, a safety security system to monitor any problems, and a service contract that covered any repairs.

7. Involving the Decision Maker

During summation, the advocate can try to relate to the thoughts and views of the decision maker. Some will already have decided important factual and legal issues. An attorney can recognize this reality and employ techniques that reflect these attitudes. One approach is to suggest that much of what will be said during final argument will only reaffirm what the decision maker is already thinking. Another technique is to acknowledge that the decision maker may have some unanswered questions and that the closing will summarize the evidence and resolve these concerns in the client’s favor.

Example (Defense):

As we continue through this summation, you may already have reached some conclusions about this case or may have some unresolved questions that need to be answered. My task is to resolve those issues for you so that it becomes clear that my client, Danielle Moonstar, did nothing wrong. The evidence that we presented and that we will now highlight and explain should address any concerns you may have.

8. Questions from Decision Makers

In bench trials, administrative hearings, and arbitrations, the professional decision maker may ask or the advocate may invite questions. Queries are usually very helpful to the attorney because they reveal issues that need to be addressed. Having to answer questions can make summation more focused and relevant. The advocate wants and needs to address and respond to matters that are critical to the case. Even if the attorney disagrees with the issues raised or believes the questions are inappropriate, it is vital to understand the perspective and position of the decision maker. Questions identify concerns that need to be resolved.

Example (Administrative Hearing Claimant):

As I summarize the evidence and law, Your Honor, that support a decision in favor of my clients, Cosplay and Gamescon, I welcome and invite any questions you may have about this case.

An advocate should answer questions promptly, candidly, and effectively. If a question is asked and the lawyer doesn’t know or have an answer, the lawyer should say so and not try to avoid the answer, evade the issue, or make a misstatement. The lawyer can move on to a related area and use the question as a transition to an accommodating part of the final argument. In general, advocates should welcome and even encourage questions to be asked, however difficult or challenging they may be.

E. Tactical Considerations

1. Contradictions

The decision maker will be well aware that a dispute exists between the parties. What will not always be obvious are specific factual contradictions in the case. Some cases do not involve evident factual differences but involve subtle contrary inferences and conclusions. The attorney should highlight the inconsistencies between witnesses, point out the contradictions in testimony, and make certain the decision maker understands the apparent factual disputes.

Example (Civil Defendant):

A mystery in this case you must solve is whether a face-to-face conversation took place on May 2. The plaintiff, Harry Houdini, has tried to introduce a side show not supported by the evidence. That desperate attempt could misdirect you from focusing on the real issue in this case. But that misdirection is a magician’s tool, a magic trick to try and fool you. And like a magic trick, that side show is an illusion, and you should not be fooled by it.

2. Case Weaknesses

Every case will have some weak points that the advocate must address in summation. If an attorney can think of a reasonable interpretation that reduces the obvious weakness of a point, that explanation should be provided. If the attorney cannot think of any mitigating explanation, then the weakness could be conceded in a candid and forthright manner. This disclosure may enhance the credibility of counsel and reduce the impact of the opposition’s focus on such weakness. Or, rather than raise it and emphasize the problem, counsel may ignore the matter and not address it, to avoid suggesting it has any worthwhile merit.

Example (Civil Plaintiff):

It may not have been the best idea to let a 6-year-old child ride his new bicycle during the party. But Nicolas was ecstatic with his birthday present. Nothing could have kept that child from trying out that bike. His parents—preoccupied with their 3-week-old baby, Ryder, and Nicolas’ birthday guests—couldn’t have known Nicolas was taking that bike onto the county road instead of the farm driveway where he always rode his old bicycle. They couldn’t have known the defendant would drive his speeding truck recklessly swerving over the center-line severely injuring Nicolas.

3. Attacking Opposition’s Positions

An effective technique may be to attack the logic and reasonableness of the opponent’s contentions. An attorney may select a specific argument of the opponent, demonstrate its inconsistencies and contradictions, and explain how this must be reconciled in favor of the attorney’s client.

A significant portion of the closing argument should not be spent defensively responding to the opponent’s issues, positions, and argument. The decision maker may perceive a lawyer who does this as an advocate without any substantial positions. Arguments that attack the opponent’s case must be balanced with statements supporting the lawyer’s case.

Example (Civil Plaintiff):

Counsel has tried to explain away the draconian restrictions they buried in Dr. Saki’s contract with Health Center, Incorporated. Let’s review how unreasonable those unfair restraints really were and are. Two years of no practice within a 100 mile radius of Santa Fe means that Dr. Saki would have to terminate her credentials with Linda Vista Hospital, would have to end the many doctor/patient relationships she has developed with people in this community who looked to her for aid and comfort, would lose the goodwill from her medical practice that she has developed, and would leave this community short of a highly capable, very gifted general practitioner. Those unwarranted and excessive restrictions are unjust and illegal.

4. Mentioning Negative Suggestions

Major problems in the opposition’s case need to be exposed, while minor weaknesses can be ignored. Marginal inconsistencies or infirmities that are not sufficiently relevant or material ought not to be used as reasons why the opponent should lose. It may not be tactful to rely on a weakness because the decision maker may perceive the reliance to be a “cheap shot.” For example, if an opponent in a real estate case is a recovering alcoholic, it would be folly to use that former lifestyle as a reason why the opponent should lose. However, there are weaknesses that can and should be mentioned during summation that tactfully remind the fact finder of significant problems.

Example (Civil Defendant):

You don’t need to rely on other problems with the testimony of the plaintiff’s major witness, Ricky Vaughn, to disbelieve his story. You needn’t consider the fact that he drove away immediately after the accident to get to a major league baseball game and didn’t stop to leave his name as a witness. You can disregard the fact he didn’t call the police until one week after the accident to tell what he saw. And you can ignore the fact he refused to talk to our investigator about the accident when she called to ask some questions, after he willingly talked to counsel for the plaintiff. But you can’t ignore the fact that Mr. Vaughn could not have seen in his wildest imagination what he said he saw.

This approach can work effectively if the comments are presented in a way the fact finder does not view as unfair or sarcastic.

5. Absent Evidence/Witnesses

During closing argument, an advocate may comment on facts that were described by opposing counsel during the opening statement but not proven during the case. If the opposition has failed to offer evidence or introduce exhibits, an attorney may comment on the significance of that non-evidence. If a material witness who had relevant evidence could have been called or subpoenaed, counsel may comment on the opponent’s failure to call that person. The non-appearance of a witness may create an inference that the individual would have testified adversely to the opposition.

Some situations may prohibit comments about the lack of certain evidence. For example, it is unconstitutional for a prosecutor to comment on the criminal defendant’s failure to testify. It may also be improper for a party to comment on the lack of specific evidence if that information is protected by a privilege and legally inadmissible.

Example (Administrative Defendant):

Counsel for plaintiff told you they would prove the defendant committed discriminatory acts against the plaintiff. Counsel said they would prove to you the defendant made racist statements. How did they try to prove that? Did they call one single witness to come to this hearing room and say they heard the defendant make racist statements? No. Did they bring before you any piece of evidence containing any racist statement written or posted by the defendant Frederick Douglass directed to the plaintiff? No. It’s not enough in our system of justice for somebody to claim something happened. Our system requires that facts be brought before you so you can determine what happened. But those facts don’t exist in this case. The only reasonable conclusion you can reach is: What the plaintiff says happened did not happen.

6. Lie vs. Mistake

Every case involves contradictory evidence pitting the testimony of one witness against another. Although some witnesses deserve to be called a liar, a better tactic may be to describe a witness as being mistaken about a fact. It may be sufficient to point out that everyone sees an event from different perspectives and how the witness has perceived an event may be a mistaken observation based on an incorrect perspective.

When claiming that a witness has lied or is mistaken, an attorney should provide a reason why that person is lying or wrong. Merely asserting that a witness has made an intentional or negligent mistake is not enough. Discrediting facts established on the cross-examination of that witness must be summarized to demonstrate the lack of credibility.

Example (Civil Plaintiff):

Mary Kay Ash told you under oath that the salesperson said the warranty would cover all major mechanical problems with the car. You then heard from the salesperson, Don Draper, who denied making that statement to Ms. Ash. You have to decide whether that statement was made. Mary Kay remembers it was made because it was a very important factor in her decision to buy that car. Does Mr. Draper really remember what he said? You can easily conclude he’s mistaken about what he remembers. He testified that he has sold hundreds of cars and has talked to thousands of customers. He has no reason to remember what he told Ms. Ash when she asked him specific questions that were important to her about the warranty. He is confused, mistaken, and just plain wrong. She has the much better memory, and she has told the truth of what actually happened.

7. Motive and Motivation

As emphasized in other sections, advocates need to present evidence that explains the motives and motivations of parties. Why something happened or why a party did or failed to do something may be an element that needs to be proven or may be an issue that rightfully concerns the fact finder. Sometimes, an event or non-event, that may not be legally relevant, has to be explained to satisfy the natural curiosity of the fact finder. An attorney needs to fulfill or placate these needs by evidence and/or by an explanation during summation.

Example (Arbitration Claimant):

You may wonder what motivated the Respondent Sorcerer Stone Corporation to do what it did? Why did the executives launch this deceptive campaign? Why did the Marketing Director and Sales Manager promote this fantasy of turning metal into gold? The answer to all these issues is as old as human nature: Greed. Corporate Greed. Boardroom Greed. Once the idea was conceived, once the plan was concocted, once the money rolled in, there was no stopping this fraudulent, immoral, and illegal scheme.

8. Jury Selection Commitment

In a jury trial, the advocate may refer to promises the jurors made during jury selection to remind them of their commitments.

Example (General):

Several days ago, during jury selection, we asked you questions. And to some of those questions you answered “Yes.” You said you would decide this case based upon the testimony of the witnesses you heard from this witness stand. You said you would decide this case based upon additional evidence contained in the websites and blogs that you have seen introduced in this case. All of us must rely on those commitments that you have made: that you will not base your decision on speculation or on other matters unrelated to this case involving Emojis.

9. Broken Promises

During opening statement, the opposing attorney may have made some promise to the jury that has not been met. An advocate before closing argument should review the statements made during the opening and argue that the opposing counsel failed to do what was promised.

Example (Civil Defendant):

During this trial, counsel for Nicolas Michaux promised to prove to you that the Whizzer bicycle was unreasonably dangerous. But counsel has failed to prove the bike was unsafe. All that the evidence has proven is that it was unreasonable and irresponsible for Nicolas’ parents to let a small child ride a full-sized bicycle unsupervised on a road where speeding vehicles rush by at 55 or 65 miles an hour. Sadly, but for their unfortunate decision, this accident would not have occurred. And that is the real cause and calamitous outcome of this tragedy.

10. Anticipating Rebuttal Argument

In a jurisdiction where the party with the burden has an opportunity for rebuttal, opposing counsel may need to explain that there will be no opportunity to counter what opposing counsel will say during the rebuttal.

Example (Civil Defendant):

Because the plaintiff has the burden of proof in this case, the plaintiff has the chance to present an argument after I have finished. I anticipate counsel will question the ability of Afrah Navistar to remember the details of the contract negotiations. As you listen to plaintiff’s counsel you should ask yourself whether what counsel says about the contract discussions is supported by the evidence you heard in this case or whether it is clear Ms. Navistar remembered those specific details. I will not have another opportunity to talk to you, and I am confident you believe her and will not be swayed by counsel’s weak argument.

F. Criminal Cases

1. Burden of Proof

Both the prosecution and the defense may explain burdens of proof, such as “beyond a reasonable doubt.” The extent of an understandable explanation depends upon the type and experience of the decision maker.

Example (Prosecution):

The term “beyond a reasonable doubt” does not mean proof beyond a shadow of a doubt or beyond all doubt. For if that were the standard, criminal convictions would be impossible. The term “reasonable doubt” only applies to the elements of the crime that must be proved. If you have a doubt that is unreasonable, the defendant must be found guilty. If you have a doubt about something that is not part of any element of proof, the defendant must also be found guilty. In this case, there is no real doubt that Carson Wells committed the crime of robbery.

Example (Defense):

The judge will tell you that a reasonable doubt is a doubt that would cause a person to pause in making an important decision or transaction in life. For example, an important decision is the purchase of a house. Imagine that the three witnesses for the prosecution are real estate agents selling a home and that the buyer of the home learns that one of the agents has never seen the home, another lied both to the police and under oath to a judge, and the third agent is a convicted felon. A reasonable buyer would pause in entering into that transaction, reasonably doubt the truthfulness of the statements made by those salespeople, and decide not to buy the house. Similarly, you should reasonably doubt and reject the testimony of the three untrustworthy witnesses for the prosecution and decide the defendant, Kay Scarpetta, is not guilty.

2. Lesser Included Offenses

Lesser included offenses are difficult to explain without diminishing the strength of the argument in support of the most serious offense or of an acquittal on all charges. A prosecutor may need to decide how to deliver an argument seeking a premeditated murder conviction and, in the same argument, explain the elements of manslaughter. The defense must consider how to reduce the chances the decision maker will find a defendant guilty of premeditated murder and at the same time not concede a conviction based on manslaughter. These and related issues need to be carefully explained during summation.

Example (Prosecution):

We have proven that the defendant Raylan Givens committed the crime of murder in the first degree. He shot and killed his business partner with premeditation and with the intent to murder him. In this case, just like many others, there are other crimes involved. When we established the facts that proved murder in the first degree, we also proved the crime of manslaughter and the crime of assault with a deadly weapon.

3. Alternative Defense Explanations

Criminal advocates may rightfully decide that the best defense tactic is to require the prosecution to prove its case and to rely on its failure to prove the necessary elements of the crime. Some defense counsel may choose to offer another explanation of how the crime was committed. Still others will decide to have their client offer an alibi. The downside of these defenses—that someone else did it—is that the jurors may focus on who else may have committed the crime instead of on the innocence of the defendant. The upside is that this option provides another reason for a not guilty verdict. This advantage can be a benefit to the defense if strong and credible evidence exists to support the alternative explanation or alibi.

G. Civil Cases

1. Burden of Proof

Counsel for both plaintiff and defendant must decide whether to discuss or describe the burden of proof in a civil action. When making this decision the attorneys must consider whether the decision maker will properly apply the correct standard of proof. Section 2.13 discussed whether the burden should be explained or relied on. In a jury trial, if an attorney decides the burden of proof should be explained during summation, consideration must be given to whether the judge’s instructions defining the preponderance of evidence are clear and sufficient, whether they should be emphasized and related to the facts, or whether an example and a more detailed definition should be given.

Many jurors may confuse the burden of proof in a civil case with the burden of proof in criminal cases and think that the phrase “beyond a reasonable doubt” (which they likely have heard about before the trial) should apply. The plaintiff’s attorney should make certain the jury does not confuse the applicable burden of proof. In some civil cases, the burden of proof is the “clear and convincing” standard. See § 2.13(C).

Example (Plaintiff):

In this case, we have the burden of proof—the burden of proving our case to you. We have met and exceeded that burden. The judge will tell you—and now I am quoting from what Judge Solomon will tell you later: “The party that has the burden of proof must persuade you by the evidence that the claim is more probably true than not true and that it outweighs the evidence opposed to it.” Now that is the law.

As the plaintiff, our proof must outweigh the defendant’s proof. The phrase, “preponderance of the evidence,” means nothing more than the greater weight of the evidence, the greater likelihood of the truth. To prove our case all we have to do is to tip the scales in our favor. It may help you to visualize in your mind the scales of justice. One side of the scale holds the evidence of my injured client, Nicolas Michaux; the other scale holds the evidence of the defendant bicycle manufacturer, Whizzer. Young Nicolas doesn’t have to topple the scales. He just has to tip them in his favor. All we have to do is tip those scales by the weight of the evidence, in our favor, and we have carried our burden of proof. We have proved by a preponderance of the evidence that the defendant, the Whizzer company, was negligent when they designed, manufactured, and sold a defective bicycle.

In jury trials, the use of the “scales of justice” is usually effective because the description provides a visual explanation of an abstract concept and because the jurors may not have previously heard this description. Jurors may want to impose a greater than a probability burden because they want to be fair and make the right decision. The party with the burden will try to reduce its effect, and the party opposing the burden will want to maximize its impact.

In bench trials, arbitrations, and administrative cases, the professional decision maker will better understand the applicable burden. They understand the probability percentage and that the plaintiff wins if the evidence more likely than not supports the claims. In close cases, these decision makers also realize that the defendant wins if the plaintiff fails to meet that burden or if the evidence is evenly balanced. It can be effective for the advocate to refer to this impact of the burden of proof.

2. Liability and Damages

A plaintiff in a civil case may prefer to argue damages after explaining the elements of liability. This tactic may leave the decision maker with a memorable impression of the damages the plaintiff has suffered.

A defense attorney may prefer to argue against the amount of damages initially in summation and then discuss the lack of liability. This approach reduces the awkwardness of having to explain the possibility of damages after asserting the plaintiff has no right to recovery.

Example (Civil Defendant):

Nicolas Michaux is a child with significant brain damage who will need medical care and supervision. This is reality. The cost of medical care must be reasonable and not exaggerated. The lawyers for the plaintiff have overstated and inflated that cost just as they have misstated the fault of the men and women from Whizzer who made the bicycle and who are not responsible for this accident. Nicolas was too small for the bike his grandparents bought him. His own parents never took the time to have the seat or bars adjusted. His bike did not malfunction. He was way too small to control that bike. And his parents knew that. Their heartbreak is that they are at fault.

3. Award of Damages

The plaintiff’s attorney may need to explain why damages should be awarded to reimburse the plaintiff for the injuries suffered, income lost, or expenses incurred.

Example (Plaintiff):

A long time ago people were guided by the law of retribution in these matters. The law was to do to another what was done to you and your family. You may have heard it expressed as: “an eye for an eye, a hand for a hand, a bruise for a bruise.” But with the development of our system of justice, we have become civilized. All we ask is that Sister Mary Clarence and her Order fairly compensate the plaintiff for the wrong done with money damages. Why money? Because it is the only remedy the law provides. It is the only way you have to make sure that justice is done.

4. Amount of Damages

The argument may contain a request for a specific amount of damages to be awarded with an explanation for the amount of money sought. Asking for a specified amount is usually much more effective than leaving the assessment to the fact finder. There are some cases where a request for a general amount of damages may be effective, but usually the better strategy is to request a specific amount or provide the decision maker with a range of adequate, reasonable, and proportionate awards. A specific damage request or demand may anchor the fact finders to an amount that reflects a fair monetary outcome.

Example (Actual Damages):

And now, (referring to the monitor screen listing damages), here is a list of the damages Princess Odette has suffered. Your responsibility is to determine the amount of damages the defendant must rightfully pay to Ms. Odette because she lost the use of her legs. It is up to you to determine the amount of damages she is rightfully entitled to as a result of the negligence of the defendant. The defendant’s negligence prevents her from leading a full and complete life, and prevents her from continuing her lifelong dream of being a professional dancer. I will go through each of these types of damages and suggest a reasonable amount of money Ms. Odette has a right to receive:

Example (Intangible Damages):

The tragedy in this case is that Megan and Mallory will never see their Mom again. She died under the wheels of the defendant’s truck. The further tragedy is that there is no way that Ms. Jasmine can be brought back to life to live with her children. As I mentioned before, the only thing our society allows to compensate Megan and Mallory for the loss of their mother is money damages. In this jurisdiction, the judge will tell you they are entitled to receive an award of damages for the loss of the love and affection of their mother, for the loss of never being able to love, hug, be held by, laugh with, cry with, and just be with, their mother. You have to decide how much to award Megan and Mallory. How does one assess the loss of the love and affection of a mother? How does one put a dollar amount on such a terrible loss? This story might help you decide the value of life and the worth of a lost mother.

The story requires us to go back in time, before this tragedy. Imagine that Megan and Mallory are on vacation with their mom along an ocean sand beach. Mom relaxes on the beach, and they tell her they are going for a walk looking for shells. They walk about a block down the beach, and Megan stumbles over something in the sand. She looks down and sees something silver gleaming. Mallory says, “What’s that?” Megan replies, “Let’s find out.” And they begin to dig around this gleaming silver object. When they finish digging, Megan says “You know what this looks like? It’s like one of those magic genie lamps.” And Mallory wonders, “You mean one of those lamps you rub and a genie appears and grants your wishes?” And Megan says “I’m going to find out. I’m going to rub it.” And so, she rubs it, and magically a genie appears and says to them, “Today, Megan and Mallory, this is your lucky day. You have released me from the magic lamp and I am going to reward you by giving you many millions of dollars.” Imagine how excited they are! They hug each other and Mallory says to Megan, “Mom will be so thrilled!". . . . “Aaahhh,” the genie interrupts, “There is one condition. I will give each of you fifteen million dollars, but you see your mother over there lying on the beach—you will never, ever see her again.” Now, I ask you, members of the Jury, do you think Megan and Mallory would consider for one moment taking the millions of dollars, or any amount of money, and never see, hug, and love their mom ever again?

Example (Punitive Damages):

Judge Michael Scott is going to tell you that you may award punitive damages in this case if you find the conduct of the defendant wanton and willful and in gross disregard for the safety of others. The law allows you to award punitive damages in this case to punish the defendant. An award of punitive damages allows you to take money from the defendant to make the defendant and other future defendants realize this should not happen ever again. An award of punitive damages is not made to give the plaintiff something that is undeserved, but rather it’s a deterrent, that is, it sends the message to the defendant and future potential defendants never to do this in the future.

To send this message, the amount of punitive damages must be significant. The amount must be enough so the defendant feels it is being punished. How do you set that amount of damages? It depends on the amount of actual damages, who the defendant is, how much of a profit it makes, and how much it is worth.

The defendant Dunder Mifflin Corporation is worth over 240 million dollars and has average profits of 24 million dollars a year. Those are substantial amounts of money. But only a significantly large amount of punitive damages will affect the defendant and have an impact on its future conduct. If you took away from it 24 million dollars—which is four times actual damages and only one year’s profit—the defendant may be properly punished under the law. And when you consider how wanton, how willful, and how grossly indifferent it was to the safety of the plaintiff and others, you may conclude that even 24 million dollars is not enough money to fairly penalize the defendant corporation.

5. Per Diem Argument

A plaintiff’s attorney may use a “per diem” argument, which divides a period of time into small units and assesses a dollar value for each of these units. For example, if a party will suffer permanent injuries for the remaining thirty years of life, the plaintiff’s attorney might argue the plaintiff is entitled to receive $100 a day for thirty years because of this continuing injury, for a total of $1,095,700.

Many jurisdictions prohibit per diem arguments. Some jurisdictions permit the argument when coupled with a mitigating jury instruction. Other jurisdictions permit the argument to be used by the plaintiff’s lawyer as an alternative way to determine certain damages. For example, the plaintiff’s lawyer could suggest that the decision maker may decide upon a value of $100 per day, or $200 a day, or more in determining recovery for pain and suffering. This lawyer could not, however, in these jurisdictions suggest an amount of damages based on a specific formula.

**Example (Plaintiff): **

How do you arrive at dollar amounts for the intangible damages—for severe pain and suffering? You have heard testimony about the unbearable pain the plaintiffs have suffered in this case. How do you determine how much money to compensate them for that relentless pain? If a person goes to a dentist to have a root canal, the dentist might say, “I can drill your tooth without any painkiller, but for an additional $100 I can give you dental anesthesia, and you will be free from intense pain for an hour.” $100 for freedom from piercing pain for 60 minutes. Who would refuse to pay $100 for freedom for one hour from such excruciating pain? Here, Stu and Jade Price have lived with agonizing and tormenting pain for many many hours for over a year.

6. Alternative Damage Tactics

Plaintiff advocates may have options regarding how best to suggest an amount of damages. The “aspirational” approach is to request a high figure that includes a multiple factor of a reasonable recovery. For example, if a reasonable damage verdict in a tort case would be $250,000, counsel may request a larger award, believing that the jurors will likely reach a compromise verdict and it’s necessary to reasonably increase the amount of damages sought. Another method is the “proof” approach, that is, counsel demands an amount that is clearly supported by the evidence. For example, if the facts distinctly support a damage claim of $145,450, that is the specific amount sought as a verdict. This approach reflects the belief that the jurors will reach an outcome based on definitive compelling evidence.

Defense lawyers may or may not decide to suggest a specific damage amount in a case. Some advocates believe that to mention a dollar amount weakens their argument that the defendant is not liable for anything. Others think that, if they fail to suggest a dollar amount, the fact finder will focus on the excessive damages sought by the plaintiff and not an alternative lower amount.

What approach plaintiff or defense counsel employ in a case will be based on which method they predict will likely yield the best outcome.

7. Collateral Source Rule

An injured party may have received partial recovery from sources other than a favorable verdict or judgment, including workers compensation, health insurance, or government benefits. Many jurisdictions require that the damages obtained from collateral sources be subtracted from a damage award. The specific rules of a jurisdiction determine whether and how collateral source payments are deducted and affect what is said in closing arguments.

8. Financial Status of Party

The general rule is that the financial status of a party is irrelevant and cannot be referred to during summation, unless the financial position is an issue in a case. For example, if punitive damages are sought, the economic status of a defendant is relevant because the assessment of punitive damages depends upon the fiscal condition of that party.

9. Impact of Tax Laws

If the amount of the verdict or award is not taxable income, then the general rule is that tax law cannot be relied on during summation nor considered by the decision maker. In some cases, tax laws will have an effect upon the award or verdict. In these cases, it might be appropriate for the decision maker to consider the impact of these tax laws, proper for a counsel to refer to the tax laws during summation, and fitting, in a jury trial, for the judge to explain the tax laws during jury instructions.

10. Existence of Insurance

The general rule is that neither party may refer to the existence or non-existence of liability or related insurance during a case, and this rule covers summation. Insurance may be mentioned if it is a direct issue in the case. Otherwise, evidence rules prohibit references to such insurance. See Fed. R. Evid. 412.

Presentation and Delivery

The more effective and persuasive an advocate is in presenting a closing argument, the greater the chance a fortunate determination will be reached by the judge, arbitrator, ALJ, or jury. If the evidence presented in a case is weak, the attorney will have little hope of convincing the decision maker in final argument to return a decision for the client. If the evidence presented is strong, statements made by the lawyer during summation will most likely match the favorable conclusions the decision maker has already reached or can readily agree with. If the evidence presented by both sides is balanced or the decision maker is unsure, the closing argument becomes vitally important and may have a significant influence on the outcome of the case.

The effective presentation approaches explained in Chapter 6 on opening statements apply, with modifications, to summation. Many of the elements that make an opening effective also pertain to final argument. Again, Gen AI can assist with the format and content of a summation. The following factors supplement aspects of persuasive advocacy covered in Sections 6.5 and 1.8.

As with the other stages of a case, court and hearing rooms need to be accessible for all participants. The law, policies, and regulations may require barriers to be removed and reasonable accommodations provided. Some of the following suggestions may need to be adapted or revised to reflect the capabilities of counsel. If a hearing or court room has inadequate features, changes will need to be made or another room used. A virtual court or hearing “room” may not have these physical or corporeal concerns. All counsel need to be aware of these issues and provide appropriate support and assistance.

A. Positions and Transitions

The advocate needs to present the live in person summation from a position that enhances its presentation. In general, the more effective location for an attorney is to appear in front of the decision maker and avoid being hidden by furniture or equipment. In court trials, counsel may stand by or behind a lectern, and may be expected or required to do so. In administrative and arbitration forums, counsel may sit at a table or seek permission to stand.

A lectern or table may be used as a tool, with effective communication techniques employed to maintain attention and interest. A protected location may provide a safe refuge for those attorneys who are uncomfortable or inexperienced with speaking away from a table or lectern. Remaining stationary may make the attorney lackluster and the argument boring, and needs to be avoided.

Purposeful movement and intentional transitions should be utilized for variety and to emphasize points, especially if the closing is lengthy. The lawyer may use visual aids and case exhibits allowing movement away from a fixed location and to mark transitions. These efforts should not be done randomly or distract from the merits of the closing.

The advocate needs to maintain an appropriate distance from the judge, arbitrator, ALJ, or jury. This distance should neither be so far away that personal contact is lost, nor so close that it is uncomfortable. In a jury trial, counsel may be able to appear in front of or close to the jury box rail, and address the jurors in both the front and back rows.

From these various perspectives, the advocate can effectively present and flexibly adapt the summation. The optimal location, distance, and movement depends upon the circumstances, including the size of the room, the location of others, the types of exhibits, the placement of visual aid devices, and the preferences of the decision maker.

B. Deportment and Bearing

The advocate should coordinate body language, facial expressions, and mannerisms to further enhance summation. Appropriate gestures should appear natural. Flexible and adaptable eye contact can hold the attention of the fact finder and allows the lawyer to observe reactions and react appropriately.

In jury trials, eye contact should be made with all jurors and not just a few selected jurors. Often an attorney can identify those jurors who appear to be dominant, one of whom may be selected the foreperson. Counsel can focus on those jurors when presenting important points.

The deportment displayed by the advocate can influence the effectiveness of the argument. Appropriate mannerisms help establish sincerity and credibility. Fact finders will become bored with a static, talking head. Counsel can employ varied facial expressions, a louder voice, a lower volume, silence, and coherent gestures to enrich the presentation. Wild gesticulations, fixed staring, random pacing, fiddling with objects, and playing with devices are distracting actions and are to be avoided. The bearing and carriage of the lawyer should be consistent with the substance of the closing.

C. Observing the Decision Maker

The attorney must notice and consider the awareness and attentiveness of the decision maker during the closing argument. Body language, eye contact, facial expressions, and note taking communicate information about the attitude, interest, or position of the decision maker. An advocate who carefully observes these reactions will more effectively present a responsive argument. These actions may not always correctly reflect what is being considered because it can be difficult to discern what someone is really thinking. Care must be taken not to overreact or unduly change a prepared approach because of a perceived reaction.

D. Notes and Outlines

It will be necessary for an advocate to rely upon notes or an outline during closing argument to ensure all important points have been covered. The longer the summation the more likely it is for an attorney to rely on extensive notes. To avoid being tedious, a lawyer should not read a prepared argument or follow notes so closely that eye contact is lost.

References to notes are appropriate as long as such reliance does not unreasonably interfere with or detract from the presentation. A persuasive, flowing argument is more effective, even if minor points are overlooked. The continuous use of notes to cover every detail can lead to a monotonous and ineffectual presentation.

Advocates need to rehearse the closing based on the planned presentation. A prepared diagram, a display board, easel paper, or a monitor screen may contain a summary of points which highlight important matters and assist the attorney in explaining the argument. Outlines can be effectively used in summation if combined with visual aids.

E. Visual Aids and Exhibits

As mentioned previously, the use of visual aids and exhibits can enhance the manner of the presentation and favorably affect the outcome of a case. Critical and persuasive parts of real and demonstrative evidence exhibits may be shown again to the decision maker to highlight key facts and issues. Important documents may be displayed and explained. These and other graphic depictions can be crafted for use during the closing to make the evidence and issues understandable and memorable, and Gen AI can provide informative illustrative displays. Visual aids used during the opening statement may also be used in summation. See Chapter 8.

F. Developing an Effective Style

An attorney must deliver the closing in a style that reflects the advocate’s abilities. A lawyer should avoid inappropriately copying and mimicking another lawyer’s style, and should be open to adapting or adopting what someone else has done if this style is natural and effective. Portions of summation may be taken from previous arguments made by other attorneys because of the similarity of the cases, the issues, or the quality of the ideas. This form of imitation is appropriate and can be most effective if counsel presents it in a fresh and authentic manner.

Objections

The advocate is generally allowed wide latitude in discussing the evidence and presenting explanations during summation. All the tools of effective oratory are at the lawyer’s disposal, and tactics calculated to convince or persuade the decision maker should be utilized. Objections may be asserted to prevent improper closing arguments.

If an attorney has an opportunity for a final argument or rebuttal after the opposition, the attorney may prefer not to object but later comment on the inappropriate statement made by the opposing lawyer. If an attorney has no further summation, then an objection may be necessary to repair any damage and to preserve a matter for appeal. Many lawyers do not object during summation unless the opponent is saying or doing something that is clearly improper and unfairly prejudicial.

An objection to improper summation must be made in a timely fashion. An objection must be made immediately during or at the end of the final argument depending on its impact and the ground of the objection. In a jury trial, the objecting attorney should also request a curative instruction. The trial judge may then attempt to reduce the prejudicial impact of the improper comments by instructing the jurors to disregard the comments.

Many jurisdictions require the attorney to make the objection as well as request a curative instruction. The reason for the curative instruction is to provide an opportunity for the judge to rectify the error. In rare instances, prejudicial damage done by offensive or repugnant comments may not be correctable by a curative instruction.

Appellate courts have reversed verdicts and granted new trials even where the trial judge gave curative instructions because the comments were so prejudicial as to deny the objecting party a fair trial. For example, comments made by a plaintiff’s attorney regarding the existence of extensive liability insurance in a civil case may be impossible to correct. Improper comments made in a case in which the issues are evenly balanced may be sufficient to support a motion for a mistrial. See § 3.8(C)(9).

Usually, a judge in a jury trial will not interrupt a summation unless there is an objection interposed or unless some fundamental rights are being violated. In bench trials and administrative and arbitration hearings, an objection and prompt ruling is appropriate to halt improper comments. Some professional decision makers will interrupt on their own to control a summation.

In jury trials, the circumstances of each case determine whether the impropriety of the remarks is incurable. Appellate courts may reverse a verdict without objections being made to the final argument where the substantial interests of justice require a reversal. See § 12.9(D). The advocate should not rely on such result because the granting of a new trial or an appellate court reversal for improper closing argument seldom occurs.

The following paragraphs describe objections to improper comments made during summation.

A. Arguing New Matters

An attorney may not introduce or argue new matters during closing argument beyond the scope of admitted evidence, including testimony and exhibits. Section 11.2 described what can be presented in final argument. References to facts or to the law which go beyond the evidence or legal issues are objectionable. References to evidence deemed inadmissible or to facts that were not introduced during the case are also improper.

Objection:

Counsel is improperly referring to matters not part of this case.

Response to Objection:

• Explain the source of the admitted facts or relevant law.
• Avoid referring to inadmissible or unproven evidence.

B. Misstating the Evidence

Misstating or mischaracterizing evidence is improper. In a jury trial, the judge may not recall the exact evidence or may permit the attorney broad latitude in characterizing the evidence because the judge has given or will give an instruction that what the attorneys say during summation is not evidence. The jurors will be instructed that they are to rely upon their own recollection of the evidence. In some cases, the judge may give a curative instruction during summation advising the jury to ignore an improper statement made by an overenthusiastic or mischievous lawyer.

Misstatements or mischaracterizations may also occur regarding evidence that was not introduced or received, or admitted only for a limited purpose. The attorney, during argument, might use evidence admitted for one purpose to prove something else, which is objectionable.

Objection:

Counsel misstated the evidence presented during the case.

Response to Objection:

• Explain the source of evidence supporting the comment.
• Explain the comment is a permissible inference that may be drawn from the facts presented.
• Argue the statement is a good faith belief by the attorney of what the evidence was.
• Remind the judge an instruction will be given to the jurors that what the lawyers say is not evidence.

C. Improper Legal Argument

An advocate may not argue a personal interpretation of the law applicable to the case. The lawyer may and should correctly explain the relevant law and apply it to the facts. It is improper for the attorney to misstate or misinterpret the law or ask that the law be disregarded.

Objection:

Counsel is incorrectly stating the law.

Response to Objection:

• Identify the legal elements of the claim or defense.
• Assert the explanation is a fair interpretation of the law.

D. Improper Personal Argument

An attorney may not state a personal viewpoint or make personal remarks about the facts, credibility of witnesses, expert opinions, or other evidence. The decision maker is to decide the case upon the evidence and not be influenced by the personal opinion of counsel. For example, the advocate may not state: “There is no question in my mind that the plaintiff lied to you. I heard what you heard, and I saw what you saw. I am convinced the plaintiff lied.” A prosecutor may not state: “I have prosecuted over 30 drug dealers over the years. I have never been as sure as I am in this case about the guilt of the defendant. I firmly believe as an officer of the court that he’s guilty as charged.” While an inadvertent, occasional use of a statement prefaced by “I believe” may not call for an objection, any prejudicial effort to influence the decision maker with a personal opinion calls for an objection.

Objection:

Counsel is stating improper personal opinions.

Response to Objection:

• Avoid making personal opinions.
• Avoid using “I” in a statement referring to an opinion.
• Preface such remarks with:

“It is clear from the evidence. . . .”

“The only reasonable conclusion that can be reached is. . . .”

E. Improper “Golden Rule” Argument

The “Golden Rule” argument is a statement by an advocate asking decision makers to put themselves in the place of a party or witness. An example is “What if you were the defendant in this case. How would you want yourself to be regarded?” Decision makers are to decide the case based on the facts, not based upon how they personally want to be treated as a party or believed as a witness.

Objection:

Counsel is improperly invoking immaterial considerations.

Response to Objection:

• Avoid making the statement.
• Do not use the word “you” (referring to the decision maker).
• Ask the decision makers to rely upon their common sense or how a reasonable person would respond and not how they would respond.

F. Appeals to Passion

Statements are improper if they unfairly inflame the passions of the decision maker. Attorneys may legitimately invoke emotions in a case, but may not rely on improper sympathy. The drama inherent in many cases will naturally result in appropriate emotive closing arguments. Empathy, sadness, and tears may naturally result from the atmosphere created in the courtroom or hearing room. The nature of the issues and the degree of the appropriate emotional comments determine propriety.

There can be a fine line between acceptable references to the values and viewpoints of the decision maker that influence an outcome and inappropriate appeals to biases and prejudices. It is proper to suggest that a victim has a right to expect to live in a safe and secure community, and improper to argue that jurors would not want to live in an unsafe neighborhood with the homeless defendants. Prior case law in a jurisdiction may provide helpful guidelines regarding the range of suitable closing argument comments. See § 11.7(F).

Objection:

Counsel is unfairly inflaming passions.

Response to Objection:

• Explain that emotions are a natural part of the case.
• Present the argument in a less emotional manner.

G. Misuse of Visual Aids and Exhibits

Advocates may inadvertently or intentionally prepare visual aids that distort the actual evidence or refer to portions of exhibits taken out of context. Some visual aids prepared for summation will not be easily reviewed by opposing counsel before the argument because they are not visible or apparent. Many jurisdictions require a lawyer using visual aids to make them available to the other side a reasonable time before they are to be used. Or a lawyer can ask permission to timely review the exhibits to be used by the opponent.

Objection:

Counsel is using a visual aid that distorts the evidence and is improperly referring to documents taken out of context.

Response to Objection:

• Explain that the visual aid accurately presents one side of the story and is based on the evidence.
• Explain that the exhibits are relevant to the point being made or that opposing counsel will have—or had—an opportunity to introduce other portions of the exhibits during summation.

H. Beyond the Proper Scope

Section 11.3(I) explained that the scope of rebuttal may be limited in some jurisdictions. During rebuttal, the attorney may improperly make statements that exceed the scope of the rebuttal.

Objection:

The argument by counsel exceeds the proper scope of rebuttal.

Response to Objection:

• Explain that the topic raised by opposing counsel relates to the rebuttal argument.
• Include the arguments during the initial summation and do not save them for rebuttal.
• Ask the judge, arbitrator, or ALJ to exercise discretion and permit a broader rebuttal.

I. Improper Inferences

All jurisdictions recognize evidentiary privileges that prevent the introduction of relevant information. These jurisdictions differ regarding whether opposing counsel may suggest that the fact finders draw adverse inferences from the invocation of such a privilege. For example, in jurisdictions that recognize marital privileges and prevent spouses from testifying to confidential marital communications, opposing counsel usually may not refer to the excluded marital conversation and may not draw the inference that what was discussed must be harmful to the case.

In some cases, a party may not be able to introduce relevant evidence for legitimate reasons. The evidence may have been inadvertently lost by a third party. A key witness may not be able to be located after substantial efforts. Some evidence may be outside the subpoena power of the court, arbitrator, or agency. In many jurisdictions, it is improper for opposing counsel to ask that adverse inferences be drawn from the failure of the other attorney to introduce unavailable evidence.

Objection:

Counsel is improperly asking that adverse inferences be drawn from the lawful invocation of a privilege.

Response to Objection:

• Research the laws of the jurisdiction to determine whether this is permissible. If so, provide a cite to the authority.
• Make a reference to the missing evidence without asking for any adverse inference.

J. Prosecutorial Misconduct

In criminal cases, the prosecutor must be careful not to overstep the bounds of fair argument. Prosecutors may be bound by a higher standard than defense counsel. Defense lawyers may rely on the constitutional rights of the defendant that protect against an overzealous prosecutor. For example, it is a constitutional violation for a prosecutor to comment negatively on a defendant’s presumption of innocence. And it is improper for a prosecutor to say that the defendant would not have been arrested if he was innocent or that, unless a conviction occurs, taxpayer money will have been wasted.

Objection:

Prosecutor has made unfair prejudicial comments.

Response to Objection:

• Do not make such statements.
• Avoid sounding vindictive.

K. Appeals to Prejudice

It is a gross violation of the fundamental precepts of our system to appeal to the prejudices or biases of the decision maker regarding racial, sexist, economic, religious, political, or similar arguments. Appeals to the animalistic instinct or preconceived reptilian nature of fact finders is improper. These and similar comments are unethical and unconscionable.

Example:

Plaintiff’s Lawyer:

Whatever doubts you may have about the defendant’s liability in this case can be resolved by considering the wealth of the defendant. This very rich and well-off defendant can clearly afford to pay the plaintiff a lot of money and should be made to do so, even if you aren’t sure who is really responsible.

Defendant’s Attorney:

Objection. Counsel is making unfairly prejudicial comments.

Judge:

Sustained. And the lawyer is reprimanded for such unprofessional conduct.

L. Improper References

Attorneys may not cite or quote the results of similar cases when arguing to a decision maker. The case is to be decided based on the facts of the present case and not on what other decision makers have done in other cases, unless it is controlling precedent or the issues are identical.

Example:

Claimant’s Lawyer:

This is not the first case where the Respondent stole and misused copyrights of legitimate businesses. There have been other cases like this against the Respondent, and those SharkTank claimants easily won. You should do what those other arbitrators did.

Defense Attorney:

Objection. Counsel’s erroneous remarks about previous awards in dissimilar cases are irrelevant, improper, and unfair.

Arbitrator:

Sustained. And I admonish counsel for this malfeasance.

M. Improper Comments

The following statements represent examples of improper comments in civil cases: mentioning liability insurance; implying that the jurors as taxpayers would ultimately be responsible for a damage award to a plaintiff who sued a governmental agency; telling the decision maker that the present frivolous case is not the first time litigants have asked for excessive damages; comments that denounce or degrade opposing counsel or the adverse party; unfair comparisons made between the extensive resources of the opposing counsel’s law firm and the limited resources of the advocate’s firm; and any other unprofessional or unjust statements.

N. Improper Interruptions

Objections may not be made merely to interrupt the attorney. If an opposing lawyer makes inappropriate or harassing objections, counsel should object to the unfounded and improper objections.

O. Admonishing Counsel

If opposing counsel makes improper comments or continues to make inappropriate remarks after an objection has been sustained, the objecting attorney can ask that counsel be admonished and instructed to stop such behavior. See § 3.13(B).

P. Uncommon Problems to Avoid

Thorough preparation, comprehensive planning, and extensive practice—as well as this scintillating Chapter—have well prepared you to present a closing argument. It is worth the additional effort to review uncommon mistakes that need to be avoided, including the following:

• A weak beginning. Open with your best explanation of why your client deserves to win.
• Not highlighting the theory of the case. Emphasize your concise and compelling case theory.
• Being inconsistent with your opening. Be sure to review your opening statement.
• Being inconsistent with evidence. Make sure your summation comports with the testimony, exhibits, and other evidence.
• Avoiding weaknesses. Be candid and offer reasonable explanations to rebut weaknesses.
• Unbalanced summation. Include both factual and legal explanations and persuasive reasons.
• Forgetting real and demonstrative evidence. Use compelling exhibits and craft convincing visual aids.
• Sounding like a partisan advocate. Be passionate and compassionate.
• Poor delivery. Practice. Practice. Practice.

Now you are finally ready for your summation.

INTERACTIVE ADVOCACY

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You can now use GenAI to refine and enhance your skills in delivering final arguments. Our specially designed AI feature integrates the comprehensive content of this chapter, allowing you to interact with LLMs, augmented by the text of this book, to optimize your advocacy strategy. By inputting the specifics of your case, you can direct the AI system to compose draft summations, propose thematic elements, and assist you in crafting persuasive arguments that resonate with decision makers. This integration offers a contemporary, interactive approach to final arguments, enhancing your advocacy skills through advanced technology.

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