Persuasive Closing Arguments, Part 1:
You are involved in a complex litigation case and the time for closing arguments is fast approaching. What are the key components of your preparation? In the opinion of Hamish Cohen, partner in Barnes & Thornburg, Indianapolis, and ICLEF faculty participant, there are three basic principles:
First, remember the key legal propositions;
Second, remember the permissible (and impermissible) modes of argument;
Third, be persuasive.
How do you go about being persuasive? From the perspective of Mr. Cohen there are specific skills you should draw upon for an effective closing argument. Over the next two Law Tips blogs I am pleased to share his well-honed viewpoint on this principle.
Let’s begin by digesting nine of his “Be Persuasive” pointers:
1. Consider the nature of a closing argument. It is an argument of what the evidence means and the particular verdict which should result therefrom. Counsel is not limited to a review of the evidence. Rather, counsel should persuade by demonstrating how the evidence – via summary organization and argument – leads to a result. Counsel may suggest inferences and draw conclusions.
2. Counsel should explain the significance of the evidence in terms of the applicable law and argue the desired verdict therefrom.
3. Develop the theme:
- From Circumstances? The careful and logical collection of events to arrive at a particular result.
- From consequences? What are the consequences of a particular result?
- From similitude? An argument drawn by analogy?
- From definitions? An argument that establishes a definitional standard applicable to a specific case.
4. Develop structure.
5. Counsel should consider the social interaction between her and the audience (ethos):
- Be fair and truthful;
- Appreciate standards of fair dealing;
- Demonstrate that your case is consistent with the jurors’ beliefs and opinions;
- Appeal to fundamental beliefs and values—that one should play by the rules;
6. Jurors appreciate friendly assistance. They do not appreciate condescension.
7. Jurors will seek to accommodate those with whom they have bonded or have a friendly relationship – they look for information to support their beliefs and conclusions. Sociologists tell us, and jury research confirms, people have confirmatory bias – they seek information that will prove them right more than they will seek information that will prove them wrong. Jurors are not likely to seek information that refutes their first impressions.
8. Counsel should consider her introductory remarks. The introduction should develop both a theme and a shared ethos.
- Introduce and continue the theme;
- Thank the jurors for their attentiveness during trial and explain the importance of their task;
- Be familiar and comfortable, if possible; and
- Weigh objectives – balance need to connect to the jury with your need to introduce and begin your substantive message.
9. Do not overreach- “overstatement is a cardinal sin of advocacy.”
In order to not overreach our blogging content, this is the breaking point for this week. Hopefully, you mined an idea or two from Hamish Cohen’s persuasive advice that will assist in your closing arguments, or perhaps even in everyday parlay. Next week’s blog brings additional words of wisdom on finalizing your case in a convincing manner. Meanwhile, do you have a persuasive technique to share with colleagues? Feel free to leave a comment below.
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.
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.
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