CIVIL TRIAL PRACTICE—DO’S AND DON’TS
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There are many ways to litigate a case, and there is no such thing as the right or wrong way. One of the benefits of attending seminars like this is to learn from colleagues. Everyone has his or her “war stories” and we can learn from these stories. Typically, if I learn just one thing from a seminar, I will consider my attendance to be a success. Without further ado, the following are some of my thoughts on trying cases in Arizona.
Be organized. At trial, the jury is looking for someone to lead them. Enhance your credibility by being prepared. This means anticipating problems and formulating solutions with ease.
Keep track of every document in the case. You can use trial software such as CaseMap to do this. Keep track of all the exhibits and keep a list of which exhibits have been admitted and which exhibits have not yet been admitted.
Create a “hot document” notebook to keep track of important docs. Create notebooks for each witness and for the opening statement and closing arguments.
Follow the docket pretrial deadlines and make sure exhibits are marked ahead of time.
Be prepared. The most common mistake made by lawyers both experienced and inexperienced is lack of preparation. Great trial presentations follow the standard rule of 90% perspiration and 10% inspiration. Whether you are prepared or not, you must appear to be well prepared, confident and in control of the trial. You must be sure that you can back up everything you say. If you cannot, your credibility will be reduced in the eyes of the jury. You can avoid this problem by being prepared and organized with a firm understanding of what you need to prove to win your case.
Do not call witnesses that you really do not need. Cumulative evidence, particularly on minor points, is unnecessary and can be dangerous if the witness providing the third or fourth iteration of the same conversation also has negative things to say if asked on cross-examination.
Do not fight or argue with witnesses. It does not enhance your credibility, it can make the jury uncomfortable, and it may result in the jury taking the side of the witness you are attacking.
With respect to exhibits, parties should stipulate to admit as many exhibits as possible. A stipulation will save time and will avoid having to formally follow a process of many steps.
Do not let the jury believe that anything that happens is a surprise. If you look surprised, even a very minor problem will be amplified in the eyes of the jury.
If you have been made the victim of a dirty trick by the other side, do not get angry. Do not show emotion unless the magnitude of the dirty trick is such that even the jury should be sympathetic to your reaction.
Do not overly commit yourself with respect to the specific facts that will be introduced during the testimony during the opening statement. You do not want to make promises you cannot keep. The more options you have left open for yourself, the better you are going to be able to react to the things that may come up that you did not necessarily expect.
If something truly surprising happens that requires you to modify your approach to the case, be frank with the jury, let them know that based on the testimony of a particular witness, that you are now going to talk about some things that you had not anticipated talking about. If there are serious turns of events during the trial that require you to make modifications to your approach, be confident in moving forward with that modification.
When things do go wrong during trial, the most important thing is not to let anyone else know. Do not wail or moan, put your head in your hands, or throw things around the counsel table. None of these activities will enhance your credibility with the jury. Take a deep breath and move ahead.
Know what the judge expects of you in the courtroom. Be kind and courteous to the court staff. Always treat them with the respect they deserve, whether the judge is present or not.
Do not argue with the judge’s rulings, especially in front of the jury. If you make too much of a fuss over an objection, the jury may wake up and actually pay attention.
Do not object to the testimony of a witness unless you must do so. If it is an important point, seek an advance ruling not in the presence of the jury.
If you make an objection in front of the jury, make it understandable. For example, rather the just saying “objection, leading,” you can say, “objection, your honor, Ms. Jones is testifying for the witness. I am sure the jury would like to hear Mr. Smith’s story in his own words.” Some judges may not like this, but because you are doing nothing more than explaining the reason behind the legal basis for your objection, most judges will allow you some leeway on this, particularly if you do not make objections all the time.
Do not make faces, over-react to testimony or rulings, use loud stage whispers to your client or co-counsel, or call people liars. These things will only hurt your credibility.
Do tell compelling stories. Good story telling is persuasive and keeps the jury interested in the case. Storytelling is not about reading from a script, at least in a courtroom. Notes are a distraction for everyone because you need to constantly look down, which means that you cannot establish eye contact with the jury. In addition, people write differently than they speak, and reciting a written opening statement just does not sound right. While it is obviously important to grasp the important points of a story, you need not memorize the story in its entirety either. If you memorize a story word for word and lose your place, you could become nervous and flustered. The goal of a good story is to have the jury focus on the content of the speech, not the mistakes. Attorneys must prepare their opening argument, but they must also prepare for the unexpected. If you have a story memorized word for word, it will be much more difficult to make changes on the spot. Storytelling involves the recreation of one or several events. In order to create the proper images, it is important to choose the right words and create the small details. While it is important to give credit to the intelligence of the jury, you should not choose words beyond the average person’s vocabulary. But, you must choose words that convey drama that can appeal to a juror’s sense of emotion.
Motions for Summary Judgment
The first key milestone in most civil litigation cases is the Motion for Summary Judgment. For the plaintiff, you should always assume that the defendant would want to knock some or all of your case out on summary judgment. Often, the settlement value of a case depends upon the outcome of a Motion for Summary Judgment.
The most common defense to a Motion for Summary Judgment is to raise factual issues. Therefore, it may be necessary to gather discovery before filing a Motion for Summary Judgment to pin down the facts. Locking in your opponent’s testimony also limits the chances you will be confronted with a lawyer-crafted response affidavit in opposition to your Motion for Summary Judgment or accompanying affidavit.
If you file a Motion for Summary Judgment too soon, the other side may file a Rule 56(f) affidavit stating why it cannot respond to your motion until certain discovery is conducted. It is not unusual for trial courts in Maricopa County to allow additional time to respond when a proper Rule 56(f) affidavit is filed.
Another defense to a Motion for Summary Judgment is to raise legal issues. Has the other party misstated or misinterpreted the law? Should the law be changed? If you are thinking about filing a Motion but you only have strong arguments on a few counts of a multi-count complaint, limit the Motion to those counts. Cluttering the Motion with arguments where there are probably genuine issues of disputed facts will often result in the trial court denying the entire Motion.
There may be times that you will want to file a Motion for Summary Judgment, even though you will probably lose. If you are having trouble understanding the other side’s legal approach to the case, or you believe that you are not getting full disclosure regarding the facts, a Motion for Summary Judgment will often smoke-out what you need to learn. At times, you may want to consider filing a Motion for Summary Judgment to educate the judge, or perhaps even your opponent.
In planning your discovery, always know why you are using a particular method and what information you are trying to obtain because discovery is expensive and time consuming.
Both the state and federal rules have initial disclosure requirements. In most cases, you should usually wait to start formal discovery until after the initial disclosures have been made. Assuming the parties exchange reasonable initial disclosure statements, the information provided can provide a roadmap for your discovery plans. Once the parties exchange their initial disclosure statements, you should have a good idea of (1) what facts you need to win, and (2) your case theme. Additional discovery should be calculated to meet your needs on these two issues.
Given the limitations placed on formal discovery methods, do not lose sight of your ability to obtain information through more informal processes. Try inputting names of parties or witnesses into an Internet search engine like Google. Interviewing non-party witnesses generally leads to the names of others who may have valuable information or key documents. Furthermore, this can be an extremely inexpensive way to obtain significant information without necessarily having to immediately share what you learn with the other side.
After you receive the initial disclosure from the other side, you may choose to request the production of certain documents. The Arizona rules limit discovery to ten distinct items, but more categories can be used if the parties agree or if the court finds that good cause exists to expand the number of requests.
Interrogatories can also be an effective tool for obtaining specific information. During a deposition, it can be fairly easy and believable for a person to not remember specific dates, dollar amounts, and the like. If this information can be obtained from the other party’s records, interrogatories require the answering party to track down the answers. Like requests for productions, the number of interrogatories is also limited but can be expanded by stipulation of the parties or court order.
Requests for admissions can also be an effective tool for narrowing the disputed issues, obtaining foundation for documents, and establishing key facts that might otherwise be hard to prove. In most cases, requests for admissions should be sent out simultaneously with interrogatories. The Arizona rules provide a limit to the number of requests that can be propounded of 25 requests, but the federal rules have not such limit. This number can be expanded by stipulation of the parties or court order.
Depositions are also an effective discovery tool, but they can be very time consuming and expensive. As with all discovery, you should not depose people without regard to why you are doing it. Know why each person needs to be deposed and what you are intending to accomplish. Some common goals to achieve during a deposition include gathering as many facts as you can from the witness, pinning the witness down to his or her story, obtaining admissions of key facts, learning the identity of additional witnesses and documents, evaluating the witness for trial, testing your case theme, and preparing for cross examination of the witness at trial.
During the discovery phase, it is a good idea to make extra copies of particularly important documents and put them in a separate file. If you have the necessary equipment, you can also scan these documents onto your computer. When you need these documents at a later date, it will be easy to retrieve them.
There are many all day or multi-day seminars covering discovery, especially deposition techniques. In the short time we have today, we cannot go into much detail on this subject.
In very few cases will you be able to convince a judge to allow the use of written juror questionnaires. First, they take extra time. Second, in Maricopa County, the jury selection process is just not very conducive to jurors preparing written answers to a series of probing questions. Juror questionnaires, however, can be quite valuable in the right case. Questionnaires allow you to obtain information quickly, but they should be followed by at least some oral voir dire. If you have a case that is going to be complex, or if you have a high profile case that has had considerable pretrial publicity, then you may be able to convince the judge that juror questionnaires will be worth the extra effort they take. Another advantage to using a juror questionnaire is the increased chance of receiving an honest and candid response from the juror. Some jurors may feel nervous about speaking in open court.
Assuming you are unable to convince the judge to allow jury questionnaires, your next best bet is voir dire. However, judges also typically limit the scope of voir dire. There are certain pieces of information that you need in uncover in each case. The court will provide some of the basic information to you. Pursuant to Ariz.R.Civ.P. 47(a)(4), “[t]he court shall furnish counsel with the name, zip code, employment status, occupation, employer, residency status, education level, prior jury duty experience, and felony conviction status.” However, you will need to engage in some probing in order to determine whether a prospective juror may help or hurt your case. Discover the basics of a juror’s life; what they read, what television shows they watch, what social organizations they belong to, etc. Additionally, find out whether the potential juror has ever been a party to a lawsuit, prior occupations, prior injuries, damages, and other information as it may relate to your case.
The goal of voir dire is to get honest information from the jury. This can only be done by asking open-ended questions. Asking closed-ended questions will only hamper your ability to get meaningful answers. Put some thought into your questions and prepare at least some of them in advance. Remember that your questions should be designed to get the jury to talk, even if they ramble. Try questions that start with “how” or “why.” Avoid asking whether a juror can be fair or impartial because you likely will not receive any meaningful type of response.
Most people refer to voir dire as a jury de-selection process. However voir dire is helpful for several reasons. First, you have an opportunity to learn information about the prospective jurors so that you can use a peremptory challenge or a challenge for cause. Second, you get to introduce the basic theme and facts of the case through your questions. Third, you get to learn about the prospective jury, which could help you to decide how to present your case, including what areas to emphasize. Fourth, you get an opportunity to establish a bond with the jury.
Voir dire is the first opportunity to speak with the jury, so it is important to make a good first impression. During voir dire, you want to start establishing your credibility in front of the jury and start developing a rapport with the jurors. As a result, you do not want to unduly embarrass them or make it appear as if you are putting them on the spot. If there are certain questions that you think might be embarrassing, but need to be asked, try to get the judge to be the one who asks those difficult or embarrassing questions. Most judges will do so if you ask. Jurors are poorly paid as it is. There is no reason to embarrass them.
Listen to and observe the responses of the prospective jurors. This cannot be over-emphasized. Many attorneys don’t listen. Instead of thinking about what the next question should be, listen to the prospective jurors. You must also watch the jury panel. Pay attention to the appearance and reactions of the prospective jurors, as well as the body language of the prospective jurors.
When conducting voir dire, talk like a normal human being. Don’t talk like a lawyer. You want to connect with the jury, and you will not be able to do this by using terms that are unfamiliar to normal people. Even during the course of the trial, it is best to use normal objections. The jury does not know what constitutes a Rule 403 objection. It is unlikely that an average juror would be able to explain the term “product liability.” If you talk like a lawyer, you are only going to confuse the jury or lead them to a misguided decision. Therefore, it is important to talk like a normal human being from the beginning.
Use a little common courtesy when dealing with a prospective jury. Always be prepared, don’t interrupt a juror, use eye contact, act like a professional, and don’t refer to a juror by a number. If you’re the type with a tendency to forget names, think about making a list, or a jury box diagram, in order to remember. As the juror is seated, and her name called out, write the name down. You may want to write down the phonetic pronunciation of a juror’s name.
Finally, you will be able to challenge several jurors. You can typically challenge a juror for cause if the juror is expected to be called as a witness, if the juror has a direct or indirect interest in the matter, if the juror is related “by consanguinity or affinity within the fourth degree” to one of the parties, if the juror is biased or prejudiced in favor or against one of the parties, or if the juror does not meet several statutory qualifications. See, A.R.S. § 21-201. Additionally, each side receives at least four peremptory challenges. Depending on the number of alternate jurors, each side will get additional challenges. If there are to be 1 or 2 alternate jurors, each side gets one extra challenge, if there are to be 3 or 4 alternate jurors, each side gets two extra challenges, and if there are to be 5 or 6 alternate jurors, each side gets 3 extra challenges. Ariz.R.Civ.P. 47(f). Additionally, if two or more parties on a side have adverse or hostile interests, the court may allow additional challenges, as long as each side has an equal number of challenges. Ariz.R.Civ.P. 47(e). Parties exercise their challenges by alternate strikes, beginning with the plaintiff. Ariz.R.Civ.P. 47(a)(3). If a party fails to exercise a challenge, it forfeits its remaining challenges. Id.
The United States Supreme Court has held that the use of peremptory challenges to strike jurors based solely on race or gender violates the Equal Protection Clause of the Fourteenth Amendment. Batson v. Kentucky, 476 U.S. 79 (1986); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994). The Supreme Court in Batson articulated a three-part test to determine whether the use of peremptory challenges was discriminatory and impermissible: (i) the party opposing the strike must first present a prima facie case of racial discrimination; (ii) the burden then shifts to the party who made the strike to provide a race-neutral explanation; and (iii) if a race-neutral explanation is offered, then the judge must determine if discrimination occurred. Under Batson, the party alleging discrimination has the initial burden of persuasion, however, if the opposing attorney can make out a prima facie case of racial discrimination, you will need to articulate a nondiscriminatory reason for striking the juror. Purkett v .Elem, 514 U.S. 765 (1995).
Most studies have found that demographics have little predictive value. Instead, jurors make decisions based on a variety of factors, including their knowledge base, values, beliefs, attitudes, and experiences. Every juror is different. For better or for worse, jurors typically obtain much of what they know about the law from the media. There have been recent articles about the C.S.I. effect. Jurors can hold their own preconceived notions about the legal system based solely on their exposure to television. During voir dire, you need to learn the perceptions of the jury of the legal system. Because jurors may have formed opinions about cases where they have little information about the facts (i.e. the McDonalds/coffee case), you need to probe the experiences of the jurors to determine whether they are desirable or undesirable.
Many of the standard preliminary jury instructions are already written for you. Do not mess with them. If you want to change the instructions, look to Arizona law and law outside of Arizona for source materials. The key cases setting out what must be proven can also be a good starting point. Look to reported cases where the issue involved was the adequacy of the jury instructions. What you want is a set of jury instructions that correctly state the law to be applied by the jury with enough factual content so that the jury understands what it is supposed to do. But the court should prevent the parties from incorporating too much of the evidence into the instructions themselves. When drafting your proposed instructions, remember that the jurors will be given copies of the instructions before they start their deliberations. The judge will normally give the jury a standard set of preliminary instructions before opening statements. You may want to raise the possibility of instructing the jury of the substantive law early in the trial. If so, discuss this with the judge at the joint pretrial conference, or at some other appropriate time.
When you receive a copy of the instructions submitted by the other side, take the time to look them over. You may be able to learn something about your opponent’s trial strategy from their proposed instructions. You also need to identify which instructions are objectionable and start formulating your objections to make to the judge.
Many would consider the opening statement to be the most important part of a trial. The opening statement is the lawyer’s first chance to present his case to the fact finder and to present himself and his client as believable and credible sources of information. Many studies show that jurors make up their minds about the whole case based on the opening statement. Jurors then spend the rest of the trial looking for reasons to confirm their initial impressions, and may even choose to selectively ignore information that contradicts their initial impressions.
Keep in mind the rules of opening statements. This is not your time to argue. Nor is it the time to attack the credibility of witnesses who have not yet testified. Save overt emotion and hyperbole for later, if ever. Once you have captured the jury’s attention and done your introductions, you have two more goals. First, tell the jurors what to expect and alert them to the evidence they should look for as the trial progresses. Second, tell your story in a compelling way that works with your theme.
Do not say you are outraged; tell the jury your story in simple words so that the jury becomes outraged. Be cautious about being too detailed in outlining the evidence. Do not overstate things. You do not want to promise something you cannot deliver. If you promise to prove something, the jury may think that you have to prove it to win.
Do not talk like a lawyer. Use common language. Before preparing an opening statement, closing arguments, or questions for the witnesses, think through the words you want to use to describe the key elements of your case. You then want to keep coming back to those words or phrases. Keep things simple. At the same time, respect your audience. Treat them as equals. Do not talk down to the jury. The jury needs to understand that getting your ideas over to them is the most important job you have.
The most important part of the opening statement is the first minute or two. In this brief period of time, you should communicate to the jury the theme of the case, the summary of facts which entitle your client to a favorable verdict, and, most importantly, your enthusiasm about the case.
The purpose of rehearsing the opening statement should be to make it as effective as possible. You need not memorize the opening statement, but should memorize the general outline you plan to present. If you memorize the opening statement verbatim, there is a good chance it will come off to the jury as being forced and without emotion.
Just like teachers use visual aids to help their students learn materials, you should use visual aids to help the trier of fact to understand the case. You can choose from a wide array of visual aids to present the opening statement. For example, you can use a PowerPoint presentation to present an outline or timeline of a case. While there are only a few “E-Courtrooms” in the Valley, it does not take much to put together a PowerPoint presentation. You just need a computer, a projector, and a screen. In other situations, you may opt for something a little more foolproof. These days, it is easy to create professional looking charts and graphs on cardboard paper to present the case. In some cases, it may even make sense to enlarge key documents or pictures. In addition, you may want to consider purchasing presentation software which allows the user to enlarge, focus, or enhance the view of a document scanned into a computer system. Some software programs even allow you to highlight or make notations of a document, akin to a teacher writing on a blackboard.
You do not need to have the latest gadgets, however, to present an effective opening statement. At the root, the opening statement involves telling a story. At trial, the jury essentially hears two sides of a story, and it is the jury’s job to decide which version is true. The story itself should also resemble a proper story. Too often we forget what a proper story sounds like. A proper story is organized and consistent with a proper beginning, middle, and ending. Good stories also have themes or plot devices to help engage the audience. You should consider using classic storytelling techniques like telling parallel stories, using flashbacks, telling the story from the first or third person, or dramatizing certain details. In crafting the story, it is important to identify the human elements involved. There are emotions and characters traits in stories. While not all characters are perfect, it is important for the jury to relate to the characters in the story. In preparing for the opening statement, the most important place to invest time is in gathering details from the client. Details are the cornerstone of an effective story, and you want the story to paint a complete picture.
Direct Examination of Witnesses
At trial, the jury essentially hears two sides of a story, and it is the jury’s job to decide which version is true. The direct examination is your opportunity to present your story in an interesting as well as informative manner.
Well before trial is set to begin, you should think about what you are trying to accomplish with each witness and what message you want each witness to convey to the trier of fact. Some questions you should consider include:
- What am I trying to prove?
- What witnesses do I need to prove my case? Who are my best witnesses?
- How should I order my witnesses in order to tell my story?
- What can I do to make my examination more interesting to the trier of fact?
- What are the legal requirements of getting my evidence or testimony introduced?
- What exhibits should I introduce and when?
- What demonstrative aides should I use to reach my goals?
- What objections should I expect? How can I overcome those objections?
For each answer, ask “why?” Always question whether you are taking the best approach. Ideally, your goal should be to make your examination compact yet forceful. There is no need to have a 6-week trial if you can be done in 3 weeks. Juries don’t want to be involved in a 6-week trial, and judges do not want to be at a 6-week trial either. If you can eliminate the need for certain witnesses, do so. The more witnesses you call, the less time you will likely have to prepare your witnesses. Thus, the more witnesses you call, the greater the chance for an unexpected answer or for your opponent to find a hole in your case. However, you cannot be too efficient. If feasible, you should only use each witness for 2 to 3 points at a maximum. This will make it easier for the trier of fact to understand the issues in the case.
In preparing your witnesses for trial, make sure that you devote enough quality time to explain the process. Some witnesses will need more time than others. However, at the minimum, the witness should understand:
- Why he or she is being called as a witness
- What facts he or she is going to prove and why those facts are important
- What the overall theory of the case is
- How his or her testimony fits in with the overall theory of the case and the evidence to be presented
- Your opponent’s theory of the case
- Anticipated objections and anticipated cross-examination
Always over-prepare your witness, especially your main witnesses. Keep in mind that all witnesses are apprehensive about cross-examination. If you properly prepare your witness, however, you may be able to alleviate some of these concerns. It is best to do a run-through of the expected cross-examination questions. If necessary, prepare your witness for the cross-examination multiple times. While preparation is essential, there is a line that you can cross in which you are over-prepared. If you write out all of your questions in advance, the direct examination may sound stilted. A better approach might be to create a general outline of the questions.
For each witness you intend to call, prepare a checklist of what you need to get from this witness and what exhibits will be introduced through that witness. If you anticipate that there may be problems getting a particular exhibit admitted into evidence, have several opportunities and approaches ready. Consider whether you are going to organize the direct examination chronologically or through logical relationships. Chronological organization is often the best and usually lends itself to good story telling. However, do not forget principles of primacy and recency. If you can, ask several very key questions before going into the witness’ background and broad identifying information. Once you have your checklist for each witness, prepare only an outline of the main topic areas you plan to cover with the witnesses. There may be a few critical questions that you want to make sure you ask in a particular way. If so, write them out, but keep that to a minimum.
The best way to keep both the jury and your witness on the same page with you is to use headlines to introduce new topics. Start each new topic with a headline.
Finally, get to the point as quickly as possible. If you move too slowly, you will lose the jury’s attention.
Cross Examination of Witnesses
Many courtroom dramas on television or in the movies include a searing cross-examination of a witnesses who, when faced with the proof of their lies, either confesses, breaks down into tears, etc. In real life this rarely happens, if ever. The goal of effective cross-examination should be to minimize the impact of the direct examination.
Before you can even prepare for a cross-examination, you need to develop your theory and theme of the case. Ideally, these ideas will come to you early on. Once you develop a theory and theme, apply them to the cross-examination. Many times, the other side’s witness will actually help you develop your case. If the cross examining the other side’s witness will not help you, consider not cross examining the witness. You do not need to cross-examine every single witness in order to prevail. You should only cross-examine a witness if doing so will develop the cause of action or case theme. Before considering whether to cross examine a witness, consider whether the witness has hurt your case, whether the witness was important, whether the witness was credible, and whether cross examining the witness will help your case.
While you may want to conduct a direct examination in some logical order, you may want to jump all over the place during a cross-examination in an effort to try to confuse the witness. Questions should be quick and should not give the witness an opportunity to make any sense of the story. Varying the order of questions will make it less likely that the witness will be able to anticipate the next question. It is also important to conduct the cross-examination so as to not repeat the direct examination, unless the direct examination supports the cross-examining attorney’s theory of the case.
The strongest points of a cross-examination should be at the beginning and end of a cross-examination because the trier of fact is more likely to recall these points. Start the cross “crisply” because the jury (and the client) expects something noteworthy. Juries have preconceived notions of cross-examinations as being exciting. It is also important to end on a high note because jurors tend to remember the last point. If you get an important piece of information on cross-examination towards the end of the session, you should not continue the questioning by seeking meaningless information but should instead end on that high note. In general, you should make as few points as possible in a cross-examination. You should strive to only make one or two big points because the trier of fact has a greater likelihood of retaining a small amount of information
Any question you pose on cross-examination should be in the form of a leading question, unless you are absolutely sure that you know the answer. Therefore, never ask “how” or “why” questions. If the other side’s witness answers your “yes” or “no” questions with an explanation, ask the judge for assistance. Most witnesses will listen to the judge, and you will send a message to the jury that the particular witness is evasive or non-cooperative. If the witness continues to provide long narrative answers, it is usually effective to pose the same question again. Give the jury credit where due. They will see through evasive and argumentative witnesses and give their testimony little weight. When you prepare for trial, you should consider scripting your initial 5 or 10 questions. Choose questions where a reasonable witness must agree. If the witness accepts these propositions, it may not be necessary to cross-examine the witness further.
Finally, jurors try to relate to witnesses. In some instances, it is not appropriate to conduct a difficult cross-examination, especially if the witness is a victim or a child. However, experts are a different story. Experts are being paid to provide their opinions, and deserve little sympathy from the jury.
The conventional wisdom is that the closing argument should be prepared before the opening statement because preparing the closing argument allows you to think about the claims and defenses, the theory and themes of the case, and the disputed and undisputed evidence, and how to integrate these into a persuasive argument. Preparing the closing argument first will also help in deciding which parts of the case to emphasize, and which parts of the case to de-emphasize. While you should prepare to deliver the closing argument before the trial, you should pay close attention during the trial in order to make changes to the closing argument. A good piece of advice is to place several blank sheets of paper at the beginning of a notebook to make notes about the closing argument. Anytime you hear something that might be included in the closing argument, like key testimony from a witness, you should write it down. Keeping these thoughts in a central place will help prepare the final closing argument.
You goal in presenting the closing argument is to convince the fact finder that your view of the disputed issues is correct and that the trier of fact should render a verdict in your client’s favor. Trials rarely run exactly as planned. The closing argument is the last chance you have to tie up any loose ends, and is a great opportunity to give the trier of fact one last reason to rule in your favor. Even though many studies show that a jury makes up its mind about a case after the opening statement, it is important to treat the closing argument as if it really matters because an effective closing argument can swing votes or change the outcome altogether.
Like opening statements, closing arguments should be rehearsed but not memorized. In preparing for trial, you should create a notebook for the closing argument containing initial thoughts about the summation, including thoughts about the general theme of the case. But the closing argument needs to be flexible to reflect the actual events of the trial. Great attorneys can confront adverse facts and (1) mitigate the damage and/or (2) integrate the adverse facts into their own theory of the case.
Even though the closing argument is the last opportunity for you to confront an adverse fact, you should make a point of identifying adverse facts from the very beginning. If you know that the other side will present an adverse fact, you should present it first on your own terms in order to build credibility. The attorney who acts first will have the opportunity to shape the facts and impute his own view, making it difficult for the other side to later rebut the facts.
There are rules that restrict what you can do in closing argument. One that you will be tempted to violate is generally referred to as the golden rule. You are not allowed to ask the jury to put themselves in the place of your client. You also need to make sure that you do not misstate, or overstate, the evidence that has been submitted in the trial.
One technique that works quite well is the use of analogies. If you can find an apt comparison of some type, or a good story that demonstrates the point you are trying to make, use it. Take the time to try to formulate good stories that will make the point you are trying to make. If you are going to use an analogy, however, test it out carefully. You need to make sure that the analogy cannot be easily turned against you.
Use of the jury instructions can also be very helpful, particularly if your theory of the case is that the plaintiff cannot or has not been able to prove essential elements of the cause of action that the plaintiff is pursuing. Take the key jury instruction and have it blown up on foam board. Have each element highlighted. Then, go through each element of the instruction where the proof is missing and point out to the jury that the plaintiff has failed to prove certain material elements. This technique is particularly effective in fraud cases where there are nine elements of common law fraud that the plaintiff must prove.
From a defendant’s perspective, you only have one opportunity to argue to the jury. It is always wise to tell the jury at the end of your closing that the plaintiff is now going to have an opportunity to make some final arguments. You should ask the jury to consider those arguments, but because you are not going to have an opportunity to speak again, you want the jurors to think through how you would respond. This is usually an effective technique. It provides some warning to the jurors that the plaintiff’s attorney may try to take unfair advantage of you because you are no longer going to be able to rebut anything that he might say. On the other hand, you are not making an accusation of that type directly.
At closing argument, it is especially helpful to use demonstrative evidence to sum up the case. If the issues are complex, and you have not won your case by now, a good PowerPoint presentation could put the entire case in perspective for the jury. However, unless your case contains a fact scenario involving the Titanic, do not show film clips from that movie during a closing argument.
In Standard Chartered PLC v. Price Waterhouse, 190 Ariz. 6, 945 P.2d 317 (App. 1996), Standard Chartered (“SC”) alleged negligence, breach of fiduciary duties, and securities claims against Price Waterhouse (“PW”) in relation to SC’s purchase of a bank. PW performed the bank’s audits for years prior to SC’s purchase of the bank. During SC’s closing argument, its lawyers played a videotape comparing PW’s auditing practices with the sinking of the Titanic. The video included clips of a Hollywood movie depicting the Titanic’s sinking. The trial judge determined, after screening the video that it was not inflammatory and was appropriate for use during SC’s closing. PW did not object to showing the video when it was played for the jury. After closings, PW objected that (1) the video was improper, inflammatory and argumentative, (2) PW did not have an opportunity to review the video prior to it being shown to the jury, and (3) that there were no facts in the record about the Titanic and therefore attempting to “match” the facts of the Titanic to the facts of the SC/PW case was inappropriate. The trial judge overruled the objection. PW appealed this ruling, and the Arizona Court of Appeals agreed that the video was improper, inflammatory, argumentative, and “based on nonexistent or inaccurate evidence about the sinking of the Titanic.” Id. at 47, 945 P.2d at 358. The SC Court stated that the purpose of closing arguments is to “enable each party to review the evidence and tie it to the applicable law.” 190 Ariz. at 48, 945 P.2d at 359. Demonstrations, according to the SC Court, should not be used to divert the jury’s attention. The SC Court determined that a videotape about the Titanic sinking was non-evidentiary. In fact, the SC Court said that they “see little difference between the use of videotaped Hollywood disaster footage to suggest the impact of a tort and the use of mood music, animated cartoons, or professional actors, costumes, and dramatic props.” Id.