Law Tips: Persuasive Closing Arguments, Part 2

Persuasive Closing Arguments, Part 2:

Avoid humor, irony, sarcasm or personal attacks; avoid anger; and avoid a script, to the extent possible…. Closing argument techniques for your consideration from a veteran of being persuasive.

I am glad to bring you Part II of the advice from Hamish Cohen on a key principle for preparing effective closing arguments: “be persuasive.”  His counsel last week ranged from explaining the significance of the evidence to developing a shared ethos with jurors.  Here is a link to Part 1 in case you missed it.

Now, let’s look at additional aspects of preparing a persuasive argument:

10. Consider the non-logical factors at issue (pathos).  Jurors want to respond in a human and sympathetic way to the issues presented.

  • What are the recognized human emotions? Affection, aggression, anger, annoyance, anxiety, combativeness, comfort, confidence, conflict, defensiveness, dejectedness, discontentment, disgust, dislike, embarrassment, enthusiasm, envy, excitement, fear, frustration, grief, guilt, horror, impatience, inferiority, jealousy, joy, love, nervousness, pain, prejudice, pride, rage, remorse, resentment, satisfaction, self-aggrandizement, shame, shyness, superiority, surprise, suspicion, tension, timidity, vindictiveness, and worry.
  • What are other virtues and characteristics? Courage, justice, prudence, temperance, charity, faith    and hope.
  • What are other traits? Generosity, honesty, industriousness, laziness, modesty, patience, etc.

11. Consider, what is the appropriate level of emotional argument?

12. Integrate emotional appeal, where appropriate, into the case theme.

13. Use appropriate, thoughtful and powerful words.

14. Use physical evidence and images where appropriate.

15. Regardless, do not forget that logic (logos) is the key element.

  • Suggest inferences and draw conclusions; and
  • Utilize contention and support.

16. Counsel should refute her opponent’s arguments. The arguments which should be rebutted and the time spent in doing so will vary from case to case.

  • A concise restatement of opponent’s point;
  • A short rebuttal;
  • A statement of the evidence supporting the rebuttal; and
  • A conclusion.

17. Have a strong conclusion.

18. Other considerations:

  • Use jury instructions and verdict forms where appropriate;
  • Ensure you have gathered the evidence into a coherent whole;
  • Highlight key evidence;
  • Address witness credibility issues;
  • Use trial transcripts and quotations where appropriate;
  • Use analogies and common experience where appropriate;
  • Consider putting questions to the jury (but only when you are certain of the answer);
  • Reference earlier statements of counsel, where appropriate;
  • Establish or respond to damages;
  • Use simple and direct language. Do not use legalese or unnecessarily complex language;
  • Repeat key points;
  • Use pitch and resonance, inflection and modulation, rhythm, timing and pauses to emphasize points;
  • Be cognizant of non-verbal communication – eye contact, body language, dress and appearance, gestures, posture and space and movement.
  • Use aides where appropriate: charts, blackboards, overhead projectors, computer and power points, videos, etc.
  • Rehearse!
  • Avoid improper argument.
  • Avoid humor, irony, sarcasm or personal attacks.
  • Avoid anger; and
  • Avoid a script, to the extent possible.

Have you paid full attention to avoiding irony and maintaining the appropriate level of emotion in your closing arguments? Have you always been cognizant of your modulation and timing? I hope that sharing Hamish Cohen’s perspectives have provided a helpful review of the important aspects to avoid and to include. Did Mr. Cohen get your “persuasive” juices flowing? Or perhaps, he sparked a conversation with colleagues on a certain technique or issue. If so, I believe he would count his advice as successful. Best wishes for effective closing arguments!

A comprehensive Closing Arguments presentation by Hamish Cohen is a feature of the popular “Trial Tips and the Art of Legal Persuasion” CLE.  To view the upcoming Video Replays, the Online/On Demand Video or purchase the e-Publication, Click Here.

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About our Law Tips faculty member:
Hamish Cohen is a partner in Barnes & Thornburg LLP’s Indianapolis office. He is a member of the Litigation Department and the Antitrust Practice Group. His practice focuses on antitrust, securities litigation, class actions and other large, complex commercial litigation. He has experience handling a wide variety of disputes from pre-litigation negotiation, through trial and the appeal process from both the plaintiff and defense perspective.

About our Law Tips blogger:
Nancy Hurley, Law Tips blogger, has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook page, Twittering and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page. You are encouraged to comment below or contact Nancy. She enjoys hearing from readers and welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you on Law Tips.

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