Closing arguments usually occur after reading the court’s charge to the jury and are often an attorney’s favorite part of the trial. Frequently critical to the trial’s verdict, there are two main purposes of a closing. The first is to remind the jurors of the relevant evidence and facts of the case, thereby providing proof of the verdict. Secondly, presenting this information reminds jurors already in agreement with the attorney of relevant information, allowing them to persuade other jurors who may still be in doubt. While the content and style of closing arguments varies for each case and each attorney, successful closing arguments include and exclude common components.
What to Include
Closings in Texas should include the following: (1) a summation of the evidence, (2) reasonable deductions and inferences from the evidence, and (3) responses to the opponent’s argument.
What to Avoid
Side-bar comments top the list of behaviors to avoid during closing arguments. They are unnecessary, often aggressive comments that do not address either the witness or the court. Such comments “will be rigidly repressed by the court.” Tex. R. Civ. P. 269(f).
Another objectionable behavior is making an argument that is, while not exactly wrong or incorrect, an unfair argument, perhaps even one presented in bad faith. Knowingly making incendiary and inaccurate comments is one way to act in bad faith. Suggesting that the attorney knows more about the case than has been presented to the jury is another. Speaking to a juror by name, falsely implying a relationship with that juror is another example of trying to mislead or distract the jury. While these behaviors may not be technically wrong, they are not completely honest and straightforward.
Arguing out of the record is another common mistake to avoid. During closing arguments, an attorney may share relevant common knowledge, may recap the evidence, and may make logical inferences based on that evidence. However, the attorney may not stray from the evidence presented. Sometimes there is a fine line between making an evidence-based inference and stating an opinion, but attorneys must be diligent about not crossing that line.
Similarly, an attorney should not share unsupported opinions about people or situations during closing arguments. Saying for example, that the defendant is an impeccably honest person, incapable of the alleged action is stating an opinion not based in evidence. An ad hominem or personal attack is another tactic to avoid. Verbally attacking or undermining witnesses, defendants, or counsel in this way is not just faulty logic. It is objectionable and a bad practice in a closing argument.
Experienced attorneys also advise against these less blatant but still unhelpful strategies for closing arguments:
- Last minute preparation of closing arguments – preparation should begin before trial and be ongoing.
- Reading the closing arguments – since closing arguments are so important, the delivery should be engaging not boring, and the information should be clearly relevant, organized, cohesive, and supported by visual aids as necessary for clarity.
- Making unnecessary objections – jurors tend to think that unnecessary interruptions are rude rather than helpful.
Avoiding these common errors will help to make closing arguments as powerful and impactful as possible.
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