Persuading the Jury: Closing = Summation + Final Argument
Although we use the phrases “closing,” “summation,” and “final argument” almost interchangeably, the terms are different. The difference between “summation” and “final argument” is more than semantic. As James McElhaney noted:
Summation … is what must be done when the facts are long and complex, there are many witnesses, or the course of the trial was somehow interrupted. It is a task to undertake when the jury needs help keeping things straight. It is a job most needed when the case has not been well tried. Summing up means going over the evidence. It is not so much argument as it is a preliminary to argument.1
Summation is part of a final argument, but not the totality of it. Instead, summation is the foundation of the final plea to the jury. To that end, summation of the evidence plus final argument equals the closing.
The key to a persuasive closing is empowering your jurors (if you don’t have any by the time of final argument, you probably will not be able to sway any to your side) to persuade their fellow jurors that your client should prevail.2 Why? Prof. McElhaney notes that the jury that “reached a conclusion on its own [ ] will hold that conclusion more firmly than if it had merely been told what conclusion to reach.”3
Obviously, we need to tell the jury what we want from it, but we also want to equip the jury to reach our conclusion on its own. To do this requires tools for the jurors to argue with: highlighting our strong points and the opponent’s weak points are obvious methods, but we need these to be connected to something in the juror’s mind.
In Texas (unlike many other jurisdictions), we know the Court’s Charge to the jury before final argument. Therefore, we have the questions the jury will have to answer and the Court has charged the jury by the time we make our final argument.
Walking through the Charge step-by-step is nice and basic, but a better tactic is to use the Charge in conjunction with daily testimony records to demonstrate both how you want the jury to answer and that what the witnesses said that supports that answer. Paraphrasing does not have the same effectiveness as reading the actual testimony from the witness that the court reporter transcribed. Jurors may trust their memories more than yours, but not more than the reporter’s transcript; reading the transcript prevents anyone from disputing the accuracy of any
“characterization” of the testimony.1 Quoting the transcript puts us in good company celebrated trial lawyer Edward Bennett Williams, quoted extensively from transcripts.2
Again, don’t lose sight of the power of physical and demonstrative evidence to your audience, the jury. These are highly effective tools for persuading jurors, but forgotten in final argument even though we fought tooth-and-nail to get them admitted. Using physical or demonstrative evidence to support and corroborate the points we make in closing will provide the example that we want our jurors to use to persuade other members of the panel. This tactic is consistent with the overall strategy to enlist our favorable jurors to work for us in the jury room. Your efforts to deputize your favorable jurors should not include obvious pandering, or any tactic that negatively affects your credibility. You should believe that jurors will see through gimmickry because they almost certainly will.
In addition, do not assume (nor state) that jurors’ recollections of the witness testimony will be superior to your own.3 Nothing is accomplished by this except to strip away some of your own credibility, and such a statement is not true – you have lived with this case (in all likelihood) for months or years and have diligently sorted through the evidence and paid rapt attention to the witnesses; the jurors have not.
Similarly, do not admit your own bias – every juror knows it is there, but your task is to lead jurors to your client’s preferred conclusion by showing that the facts dictate that conclusion. The judge will charge the jury to reach its conclusion without bias or prejudice; therefore, if you admit your own bias the jury will discount what you say.
Also, do not intimate that the jury has superior deductive powers to your own – if that was true, then you serve no purpose because a superior result would be obtained if all the evidence was put before a neutral jury to do as it wished without guidance from the attorney.4 The jury looks to the attorney for guidance and leadership. You as the attorney in charge of the case must provide it.
1. James W. McElhaney, McElhaney’s Trial Notebook (3rd ed.) (“McElhaney”) at 634.
2. Stern, supra, at 31.
3. McElhaney at 646.
4. Stern at 33.
5. Stem at 74-78 (quoting Edward Bennett Williams’s closing in Jimmy Hoffa Trial); id. at 97-99.
6. See Klonoff and Colby at 254-55.
7. Id. At 255-56.
About the Author
Trey Cox specializes in courtroom fights between businesses. His jury trial experience and courtroom success have earned him the distinction of being Board Certified as a Trial Advocate by the National Board of Trial Advocacy. Trey represents Fortune 500 corporations, entrepreneurs, and leading firms in a wide array of industries. His dedication to his clients and winning track record have repeatedly earned him recognition as one of the top trial lawyers in the country.
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