how to write a closing speech in court

Closing Argument

Original Cochise County Courthouse, Tombstone Courthouse Historical Park, Arizona, 1882.

The closing statement is the attorney’s final statement to the jury before deliberation begins. The attorney reiterates the important arguments, summarizes what the evidence has and has not shown, and requests jury to consider the evidence and apply the law in his or her client’s favor.

What to know before drafting a closing

What happened from your side’s point of view?
What is your theory of the case?
What are the key elements that have to be proved (by you or the other side)?
What do you anticipate the evidence will show?
What are the important facts your side’s witnesses will testify to?
What themes (words and phrases that convey emotions) do you want to emphasize?
Who has the burden of proof and what is it?
What do you want the jury to do?
How much time do you have? (usually 5 minutes)

Anatomy of a Closing Argument : The Basics

If you are the prosecution or plaintiff you must reserve time for rebuttal before you start your closing argument. Check your Mock Trial rules.

Some attorneys begin with something like: “Your Honor, members of the jury, my name is (full name), representing the prosecution/defendant in this case.”
If they have already been introduced, many attorneys just go right into their opening to save time, create drama, and make it look more like a real trial.
The closing attorney has a lot more flexibility than the opening attorney
Closing is a persuasive argument
Briefly review what has to be proved (by you or the other side)
One or two sentences which tell the jury what the evidence has shown in the context of your theory of the case
“ The evidence has shown by a preponderance of evidence that my client, Landry Lopez, was fired for reporting an illegal activity to his employer, the restaurant Buddies Burgers.”
Could be combined with a brief overview of what the evidence has shown using general statements or through a descriptive story
This is essentially the elements of the case
Do not delve too deep into legal terms or you will lose the jury’s attention
Talk about burden of proof
Focus on the key issues
Identify witness testimony and exhibits supporting each issue
Tell a the client’s story
Reinforce case themes
Help the jury tie things together in their mind
The organizational structure will vary depending on the case
“This is a civil case and Plaintiff Landry Lopez must prove his case by a preponderance of the evidence.” (Explain briefly and illustrate with hands what a preponderance of the evidence means)
“ Oregon’s whistle blower law exists to protect, and encourage, employees to report illegal activity in the workplace. Mr. Lopez engaged in such whistle blower activity and was fired for doing so. “
“For these reasons, after you have heard all the evidence, at the end of this trial we will ask you to return a verdict in favor of Landry Lopez.”
“At the end of the trial the State of Oregon will ask you to find the Defendant guilty of . . .”
“Based on the evidence you will hear, at the end of the trial the Defendant will ask you to return a verdict of not guilty.”

Tracking the evidence at trial

Witness statements are not evidence (unless they were admitted to impeach a witness)
Exhibits are not evidence unless admitted
What an attorney said in their opening statement is not evidence
Witnesses may forget key evidence
Attorneys conducting the direct and cross examinations may forget questions
Attorneys may forget the last step of offering an exhibit into evidence
Testimony and exhibits may be kept out the judge after the other side objects
Consequently, it is important to track what evidence comes in during the trial
Memory (fallible)
Notes (cumbersome and hard to access)
A master outline to checking key items off of as they come in (better)
Keeping a flow chart (better)
Prepare in advance
List the key facts for each witness
List all exhibits
Do not go into too much detail (makes things hard to find)
Contain blank space for notes on actual witness testimony and quotes
Contain blank space for the opposition’s cross examination
Contain blank space for actual witness testimony and quotes
Includes places to track other sides’s theory of the case and arguments in openings and closings

Going Deeper: Ways to Improve the Closing Argument:

The attorney doing the closing argument is being judged both on the substance of the closing and on their performance (public speaking ability).

How to improve the substance:

Practicing attorneys differ on this
The attorney’s speaking style
The attorney’s comfort level with impromptu speaking
The attorney’s ability to memorize a speech
Other roles the attorney might have in the case
In either case, the closing argument must be modified based on what evidence comes in
Certain parts can still be memorized (intro, conclusion, etc)
Body of the argument can be easily modified as trial progresses
Delivery style may seem often more natural
More difficult to use rhetorical devices
More difficult to implement themes in the body of the speech
Most of the speech is memorized
More difficult to modify based on the what happens at trial
Delivery style is often more formal
Easier to use planned out rhetorical devices
Easier to implement themes in the body of the speech
The closing attorney must track what evidence comes in
Having other roles makes it more difficult for them to do this
It is especially difficult for a prosecution/plaintiff attorney to do cross examination and a closing because this is when they should be putting together their thoughts for closing argument
Closing arguments go through many edits and revisions
Seek out the input from others
Try things out – if they don’t work, don’t use them
Is it consistent with the theory of the case used in closing?
Are they consistent with the theory of the case used in closing?
Has evidence been left out that is needed for closing argument?
A hook is a sentence or short paragraph which serves as an attention grabbing device
See section on advance public speaking techniques
Use descriptive, emotional content
Use active voice
Use language that reinforces your themes
“The evidence has shown that . . .
“The facts have shown that …”
Use a few of these lines but don’t overdo it.
In her testimony Landry Lopez told you . . . “
Don’t ask questions (it allows the jury to come up with answers you might not want)
Do not waste your time on unimportant things
The more you repeat something the more it is remembered and believed
If you say the evidence will show that “Mrs. Smith did not run the red light” the ‘not’ is lost.
The jury remembers the phrase “ran the red light”
Instead say the evidence will show “Mrs. Smith came to a complete stop at the signal.”
The jury remembers “came to a complete stop at the signal.”
Are they a sympathetic witness who just got it wrong?
Are they deliberately lying or lacking in credibility?
Be professional with opposing counsel – attack the facts and witness, not the other attorney
Personalize your witnesses by using their names
Depersonalize the opposition’s witnesses with language like ‘Defendant” or “Plaintiff”
Don’t be shy to take on this role
Refer to yourself “The State of ___” not just the “prosecution.”
“There are certain facts in this case that are not in dispute . . . “
“The defense/prosecution have agreed . . .”
“ The parties have agreed that . . .”

How to improve the performance:

Find your focus, energy and commitment
Memorize movement, inflections, and gestures to the extent you can
Use them sparingly
Use a legal pad or clip board so they do not flop around
Don’t be afraid of the jury
Look them in the eye
Educate them about the case
Move closer (5-10 ft.) but not too close
Be natural so as to keep their attention
Do not be overly aggressive in your argument style
Being overly aggressive can make one less believable
Help the jury – assist them in evaluating the evidence in a persuasive way
Do not shout except to make a particular point
Use rhetorical devices to persuade
Let the type of case dictate your style and tone
Example: A prosecutor might want to be more forceful whereas a defendant might want to evoke sympathy
Use legal terminology sparingly
Maintain upright body posture (do not slouch)
Keep shoulders back to show confidence
Stay balanced
If you move make the movement coincide with transitions between points
Try not to change position more than 7 times in 5 minutes
Try not to fidget or have unnecessary gestures or body movements
Use gestures to create interest and drama
Gestures include the give, the show, the tell, and signposting
If you are the prosecution and point to the defendant it will be using a harder accusatory “tell” gesture with a pointed finger
If you are pointing to your own witnesses it will be using an inviting open handed “give” gesture
Act professional and confident – even if you are nervous

Preparation Sheet

Closing argument preparation sheet, how to do a closing argument (professor rose), opening statement and closing argument, judge david barker, how to do a closing at mock trial – defense, jerry spence closing argument for defense in a criminal case.

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How to Draft a Persuasive Closing Argument in Five Easy Steps

Overwhelmed by the task of writing a persuasive closing argument here's how to draft a persuasive closing argument in five easy steps..

There are very few times when practicing law feels like artistry; closing argument is one of them. If you’re feeling overwhelmed by the task — here’s how to draft a persuasive closing argument in five easy steps.

By Kimberly A. Quach, Family Lawyer

Drafting A Persuasive Closing Argument

This Hot Tip is designed to help with the task of drafting a closing argument in five easy steps. It is hardly a panacea for good preparation, but it can help to allow the lawyer’s nonjudgmental, brainstorming juices flow rather than slow the process of drafting when perfectionism looms.

The Five Easy Steps

The five easy steps to drafting a persuasive closing argument are based on the premise that closing argument is drafted, in part, while trial is going on rather than after the trial. Certainly, one cannot draft a good closing argument until the end of the case, but why not brainstorm about ideas for closing as you listen to the case? Pull out your highlighters, colleagues, as you are listening to opening statements and testimony so that you can easily refer to what you found compelling as you listen to the case. Then, when you finally have the opportunity to draft your closing argument, you can collect all of these bits and pieces and quickly incorporate them into your argument.

Lest I get ahead of myself, though, the steps in drafting your closing argument should include at least the following:

Listen to the Case Carefully. Listen to the witnesses, the evidence presented, and the Court and opposing counsel with the theme of your case repeating like a well-memorized mantra. Also, look for the Big Mistake made by the opposing client.
Highlight Supporting Information for Future Reference. Highlight any testimony, and comments by the Court that support your theme in the case, as well as your perception of the Big Mistake made by the opposing client.
Identify Two or Three Main Points in the Case. Identify two or, at most, three main points relevant to the Court’s consideration.
Fit the Supporting Information into Your Outline. Take all of the highlighted information that you thought was helpful and place it into the outline that you have created.
Create a Catchy Introduction That Summarizes Your Assessment of the Case. After you have created an outline, complete with supporting information, craft a pithy, catchy introduction with which to start your closing.

Listen To The Case Carefully

It is important to establish a theme to your case in your opening statement, which is beyond the scope of this Hot Tip, so I will not address how to develop that theme. Your task, as you listen to the case, is to listen for how your theme plays through the evidence. Is it being supported? Does the theme need to be modified? If so, what additional evidence should be submitted to support the modified theme? How do you plan to pitch the justification for the modified theme to the Court in closing?

It is also important to see how the opposing client’s theme plays through the evidence. Has he made promises that were not kept during the case? Has he introduced testimony or evidence that contradicts his theme? A Big Mistake is the part of a case in which the opposing client submits testimony or evidence that substantially undercuts his initial assessment of the case. Listen to the case carefully to identify that Big Mistake. At some point in the middle of your closing, make sure to identify the opposing client’s Big Mistake to undercut the opposing case. It is best to do so in the middle of the case so that the court does not view this technique as unnecessarily negative or overzealous.

Highlight Supporting Information For Future Reference

There is no reason to artificially compartmentalize tasks as a trial advocate. Being a good trial lawyer is a lot like flying an airplane on instruments — one has several critical functions to negotiate simultaneously, and it is perfectly fine (perhaps even expected) to multitask. So that listening to the evidence for closing argument does not become overly burdensome, I suggest you simply use one color of highlighter to identify the information you feel might be valuable for your closing. If you highlight the important tidbits, you will be more likely to stop worrying about remembering them later. (Those lawyers that are highlighter-happy might use another color for cross-examination.)

Remember that there are several sources of information for your closing. The judge may make preliminary comments on the record or in chambers that you wish to address in closing. Your client or an expert might have used a clever phrase to describe a feature of the case. In one of my recent trials, the expert said the father was “consistently inconsistent‚” in his positions during a custody study, a statement I found particularly helpful in my closing. And do not forget exhibits as a source of closing argument materials, which should be identified by exhibit number in your closing so the Court has a clear outline of why you are making your arguments. The judge may not prepare a ruling for several days after the trial, so specific references to exhibits and testimony will be helpful to refresh her recollection. Even more important, use of exhibit numbers and specific references to testimony will vest your argument with an air of credibility, making the Court more secure in its willingness to trust your perceptions of the case.

Identify Two Or Three Main Points In The Case

The Court can process only so much information. After reviewing all of your highlighted information in a very summary fashion, try to think of two or three main ideas that summarize the evidence and testimony. This should be the hardest part of drafting your argument, so do not be hard on yourself if it takes a little time. A cohesive structure for your argument is the very foundation of what makes it compelling and easy for the Court to digest completely, with all of its nuances.

Fit The Supporting Information Into Your Outline

woman drafting a persuasive closing argument

You can state, “All of the lay witnesses agreed that the Mother was the child’s primary caretaker, including . . .“ and list the witnesses’ names.
The wife’s spending habits, as summarized in the year-end VISA and American Express Statements (Exhibits 31 and 32), show that she spent at least $3,000 a month after taxes.

If a witness provides a good anecdote about the evidence, place it in the outline. At this point, do not be judgmental about what you include. Just list it all.

If you are like me, the closing argument you have drafted is about an hour long. If your judge does not have this level of patience, now is the time to start cutting out detail that you feel is not essential to the argument, or to summarize the detail more briefly. Your choice about what to omit from your closing argument should be based, in part, upon how the judge responded to the evidence. If she was annoyed by one particularly uneventful turn in the evidence, it is a good bet you can safely omit that discussion from your closing. If your judge was careful not to reveal her leanings, put your best argument together. Know that you may need to adapt if the judge appears to wince at your approach during closing.

Create a Catchy Introduction That Summarizes Your Assessment of the Case

Your argument is drafted. You breathe a sigh of relief. But now, according to communications experts, you need a catchy introduction. This introduction will grab the Court’s attention and give you the momentum to deliver your closing with an appropriate level of enthusiasm. It should complement your theme. Perhaps you will quote a witness, or read from an exhibit, or provide an analogy for the way in which your client or the opposing client is approaching the case. Whatever it is, make it simple. Your goal is to have the Court repeat your introduction and theme in her ruling.

Drafting a closing argument is hardly brain surgery, but sometimes we treat it that way because we want it to be excellent. This Hot Tip hopefully provides some ways to help the lawyer quickly draft a compelling closing argument by treating it like a brainstorming exercise, rather than like Chagall’s irreversible splotch of oil paint on a clean canvas. There are very few times when practicing law feels like artistry; closing argument is one of them. Be creative, and be credible by preparing for closing argument throughout the trial.

The Assisted Opening Statement Show the judge why your case is worthwhile.

Development and Introduction of Exhibits Almost anything can be an exhibit, if it will advance the cause and lead to proof of the case.

Kimberly Quach is a member of the Oregon and Washington bars. She practiced commercial litigation and family law in Seattle and Portland before moving to Singapore in 2000 and becoming general counsel to NMG Financial Services Consulting.

About the Author

Diana Shepherd, CDFA®

Diana Shepherd has over 30 years of experience as a marketing, branding, SEO, copywriting, editing, and publishing expert. As Content Director for Family Lawyer Magazine, Divorce Magazine , and Divorce Marketing Group , she oversees all corporate content development and frequently creates SEO-friendly videos, podcasts, and copy for family law and financial firms. The Co-Founder of Divorce Magazine and Divorce Marketing Group, Diana is an award-winning editor, published author, and a nationally recognized expert on divorce, remarriage, finance, and stepfamily issues. She has written hundreds of articles geared towards both family law professionals and divorcing people, and she has both performed and taught on-page SEO for 20+ years. Diana spent eight years as the Marketing Director for the Institute for Divorce Financial Analysts® (IDFA®), and she has been a Certified Divorce Financial Analyst® since 2006. While at IDFA, she wrote, designed, and published The IDFA Marketing Guide , and she also created seminars for CDFA professionals to present to family lawyers (approved for CLE), as well as to separated and divorcing individuals. She has represented both DMG and IDFA at industry conferences and events across North America, and she has given marketing as well as divorce financial seminars at many of those conferences.

How to Write a Closing Argument

Last Updated: January 3, 2021 Approved

This article was co-authored by Srabone Monir, JD . Srabone Monir, Esq., is an Attorney based in New York. She received her JD from the St. John's University School of Law in 2013, and has used her legal training in positions for 32BJ SEIU, the New York Legal Assistance Group, and Disability Rights New York. She is currently a Principal Law Clerk with the New York State Supreme Court. She is also a VA Accredited Attorney as of 2015 and is licensed to practice law in New Jersey and in New York. wikiHow marks an article as reader-approved once it receives enough positive feedback. This article has 11 testimonials from our readers, earning it our reader-approved status. This article has been viewed 314,731 times.

A closing argument is delivered by an attorney at the end of a trial, after all of the evidence has been presented, witnesses and experts have been questioned, and the theory behind a prosecution or a defense has been given. A closing argument is the last chance an attorney has to address the judge and jury. [1] X Research source That is why it's so important to write a closing argument that is memorable, factual, and informative.

Preparing to Write a Closing Argument

Be sure that you have notes about damaging testimony that you were presented with during the trial. This will give you the opportunity to reference that evidence in your closing argument.

For instance, in a murder case, important details that both sides may want to talk about include the physical evidence that may link the defendant to the murder, whether or not the defendant has an alibi, any problems with the murder investigation, and any motive the defendant may have had to commit the murder.

For example, if you are the prosecutor during a murder trial, use a picture of the victim when he or she was still alive, a timeline of the defendant's movements around the time of the murder or a word that represents your theory of the case (such as jealousy or greed).
To ensure that you use visuals aids effectively, choose one or two that you can use throughout the trial, and make sure that whatever visual you use is easily understood by the jury.
To use a visual aid during your closing argument you may need to get approval from the judge. You must get permission from the judge to show pictures or other types of visual aids that were not admitted into evidence during the trial. However, if the visual aid that you plan to use in your closing argument is an exhibit that was admitted into evidence during the trial, you can use it without approval.

Step 4 Remember to use simple language while writing your closing.

Reviewing Your Case

The theory of the case is essentially each side's version of what happened, and if the juror's believe one side's theory, that side wins. Because the theory of the case stays the same throughout the trial, the jury should be familiar with each side's theory of the case when closing arguments are given.
Bring up your theory at the beginning of your closing argument. Try to bring it up during the first 30 seconds of your argument to focus the jury's attention on the theory. Then continue to reference the theory throughout the rest of the argument.
Be sure to use active, descriptive language and strong transitions between ideas. This will help capture the jury's attention and help them sympathize with your client.

The prosecution and the defense will necessarily have different views of the facts, so make sure that whichever side you are on, you tell the jury the facts in a way that is favorable to you.

Step 3 Use well known stories, analogies, and rhymes to prove your point.

For example, making an analogy between a murder case and the Cain and Abel story in the Bible may work if the facts are similar because many people have heard the story. On the other hand, analogizing a jealous murder to Shakespeare's Othello will probably not help the jury understand your case, because not too many people read Shakespeare.
You may also use rhymes and phrases to drive home your argument to the jury. For example, during the famous O.J. Simpson trial, the defense attorney coined the phrase “if the glove doesn't fit you must acquit” to make sure that the jury would not forget an important piece of evidence: the glove.

Step 4 Get the jury on your client's side.

Attacking the Opposition's Case

Step 1 Listen to the other side's case during the trial.

Things that they say or that their witnesses testify to that are not supported by evidence, or
Things that they say or their witnesses testify to that you can refute with your own evidence.

Step 2 Point out discrepancies in the other side's theory.

For example, you could point out that your opponent is paying their expert witness to testify, and therefore that testimony is not as credible because it is essentially exchanged for money.
You could also point out that other witnesses may have a stake in the outcome of the case. For instance, if a defendant's mother testifies that he was with her at the time the crime was committed, you could point out that as his mother she does not want him to go to jail, and therefore she could be lying.
It is also likely that a witness on the other side made some sort of inadvertent comment during testimony that is not helpful, and may even be harmful, to the other side's case. Point this out during your closing.
However, in a criminal case, you may not make any comments about the defendant choosing not to testify in his own defense. Such comments violate the fifth amendment prohibition against self-incrimination, and making statements such as “he didn't testify because he's guilty” and similar ones is grounds for a mistrial.

Step 3 Remember that the prosecution bears the burden of proof.

Concluding Your Closing Arguments

However, make sure that you do not argue improperly by appealing to the jurors prejudices against a certain group of people. For example, it is improper to make an argument for a high award of damages based on the wealth of the individual or corporation that is being sued. It is additionally improper to ask the jury to base their verdict on characteristics of the defendant or victim such as race or sex.

Step 2 Make your final statements memorable.

Some examples include talking about a juror's duty to uphold the law and dispense justice, or talking about how letting a defendant go free would put him or her back on the streets to commit more crimes.
For instance, the prosecutor could say to the jury that “the verdict in this case does more than decide just this case. The verdict is a message to the community that you will not tolerate crime and those who commit crimes.”

Expert Q&A

Remember to be organized. The jury will need to see the story from start to finish. Keep the argument chronological so the jury does not get confused or misunderstand your case. Thanks Helpful 0 Not Helpful 0
Closing rebuttals are available for prosecutors in criminal cases. This can be used if something new and unexpected is brought up by the defense in their closing argument. To do a rebuttal, ask the court to reserve a minute or two of your time at the start of your argument. Failure to save time will result in the court not allowing you to do a rebuttal. Thanks Helpful 0 Not Helpful 0

This article offers legal information, not legal advice. For legal advice, contact a licensed attorney. Thanks Helpful 3 Not Helpful 2

↑ http://www.law.indiana.edu/instruction/tanford/web/reference/09close.pdf
↑ http://www.uscourts.gov/educational-resources/get-informed/federal-court-resources/closing-arguments.aspx
Thomas A. Mauet: Trial Techniques, Ninth Edition.
http://criminaldefense.homestead.com/Argument.html

About This Article

To write a closing argument, start with your theory of the crime, which you should try to bring up within the first 30 seconds of your closing argument. Then, review your evidence by taking the jury step-by-step through the facts of the case from your side's perspective. You should also point out flaws and discrepancies in the other side's argument to help discredit them. Finally, conclude your closing argument by appealing to the jury's emotions and making a strong final statement. To learn how to outline your closing argument, scroll down! Did this summary help you? Yes No

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Short, sweet, and specific: Effective openings and closings in oral argument

By Kyle R. Kroll

The first impression is the last impression.” It’s a familiar phrase and one that underscores the importance of oral argument. Briefing is usually the first opportunity to make an impression, but appearing before judges in person is often more influential. The opening volley of your oral argument is crucial. But the last impression can be just as important as the first. As the saying goes, “You never win at oral argument, but you certainly can lose.” Your closing lines are therefore mission-critical as well.

What are the hallmarks of a strong opening and closing in oral argument? Most scholarship about oral advocacy focuses on the middle of the argument—the substance. And there is little advice regarding how to make a powerful and persuasive beginning and end.

To address this information gap, this article surveys just some of the great oral advocates from Minnesota and elsewhere. A review of openings and closings from these greats reveals three key insights: keep it short, sweet, and specific.

Openings: Theme and roadmap—briefly

Justice Ruth Bader Ginsberg led with the following piece of advice in remarking on advocacy: “Be brief, be pointed.” 1 For openings, this typically means beginning with a thematic statement and a roadmap of your main points. 2

The thematic statement should remind the court of the nature of the case and reiterate your client’s story. And the roadmap should introduce no more than three key points you wish to make. As one practitioner put it: “Write out an introduction that, from the very first sentence, captures the panel’s attention, frames the appeal and the issues, and presents a compelling narrative why your client should prevail….” 3 It’s important that the theme not overshadow the roadmap, however. 4 Although some scholars suggest completing the roadmap in 30 seconds—because sometimes that’s as much time as you will have before an interruption 5 —anything up to 60 seconds should suffice.

Take, for example, this effective opener in Romag Fasteners, Inc. v. Fossil , Inc. , from one of the most prolific appellate attorneys in U.S. Supreme Court history, 6 Lisa S. Blatt:

The Lanham Act authorizes courts to remedy trademark violations by awarding infringers profits subject to the principles of equity. The question presented here is whether this phrase, “principles of equity,” requires trademark owners to prove willfulness as an absolute precondition to profit awards. The answer is no for three reasons: First, the phrase “principles of equity” signifies a multifactor analysis where no one factor is controlling. Second, the statutory text and structure supersede any settled willfulness requirement. And, third, there was no such settled background willfulness requirement. 7

To avoid an interruption and ensure you make your key points, consider former U.S. Solicitor General Paul D. Clement’s succinct opening in United States Forest Service v. Cowpasture River Preservation Association :

Respondents’ effort to convert all of the land traversed by a Park Service-administered trail into lands in the National Park Service fails for reasons of text, context, and consequences. 8

Clement’s very short roadmap identifies three key points (text, context, and consequences), while promoting the narrative that the respondent is trying to convert private into public land.

Sometimes it is best to focus the inquiry on the single most dispositive and pressing issue, just as future Chief Judge John R. Tunheim (District of Minnesota) did in Growe v. Emison :

Redistricting is a power and responsibility that is reserved to the states in the first instance. This case presents the Court with an opportunity to illuminate that important principle and clarify the apparent confusion in the lower federal courts. I intend to direct my argument this morning to the abstention issue: Did the federal court err by refusing to abstain to an ongoing state judicial proceeding? And the case presents perhaps one of the most stark examples of what can go wrong when there are jurisdictional disputes in the redistricting process. 9

Nicole A. Saharsky (a University of Minnesota Law School graduate and also one of the most prolific attorneys to argue in front of the U.S. Supreme Court) 10 offered a shorter and sweeter opener on a key issue in DePierre v. United States :

Whether you call it freebase, coca paste or crack, it’s the same thing chemically. It is cocaine base, it is smokeable, it has the same effects on the user; and Congress did not limit the statute to one form of cocaine basis. This court should not do it, either. 11

Aaron Van Oort focused the Court in on a dispositive issue after opening with a strong thematic point and summarizing the compelling facts:

This case tests and exceeds the very outermost limits of what a person may be insured against under Nebraska law. In 2006, Commander David Kofoed of the Douglas County CSI unit committed the reprehensible act of planting false blood evidence against two innocent men in a murder investigation. For this criminal misconduct he was both convicted of a class four felony and it resulted in the civil judgments that are underlying this proceeding. In this appeal, the plaintiffs are arguing on his behalf—Commander Kofoed—that he has insurance coverage for the damages arising out of his wrongdoing, even for the punitive damages that were awarded against him. That’s incorrect under Nebraska law because Nebraska affirmatively forbids its political subdivisions like Douglas County, his employer, from paying civil judgments that arise out of criminal wrongdoing, whether they do it through insurance or otherwise. 12

In each of these examples, the advocate’s winning opening was short, sweet, and specific. The openings usually include one or more thematic sentences. Theme appeals to ethics and morality, while the roadmap that introduces the key points appeals to logic. These advocates strive not only to show the court that their positions are right, but also that their clients are in the right . Sometimes the advocates focus on one key issue, but where there is more than one, they often use signposts (“first,” “second,” “third”) to provide verbal organization in their roadmap. The opening roadmaps are short, even though they often paint a clear picture with salient facts or legal principles. Notice also the use of vivid and concrete language—the “sweet” part of the opening that often grabs attention. Further, the openings either implicitly or explicitly call for the court to make a certain holding (reverse, remand, etc.). Short, sweet, and specific.

Closings: Make a compelling point, and tell the court what you want

Closings should also be short, sweet, and specific. Admittedly, advocates often have little—or no—time for a planned closing. Questions that arise during oral argument regularly fill up that space, and the lawyer runs out of time, only to offer a short “Thank you” at the end. But when time permits, the greats include closings that are short, sweet, and specific.

For example, in Weinberger v. Wiesenfeld , future Justice Ruth Bader Ginsburg offered this concise and compelling closing:

In sum, appellee respectfully requests that the judgment below be affirmed, thereby establishing that under this nation’s fundamental law, the woman worker’s national social insurance is no less valuable to her family than is the social insurance of the working man. 13

Justice Ginsburg’s closing is a model of short, sweet, and specific. She concisely boils down the issue on appeal to a clear ultimatum. She asks for specific relief: that the judgment be affirmed. The Court agreed.

Appeals to bedrock principles—a version of “sweet”—are common among the greats. Eric J. Magnuson, in Padden Law Firm, PLLC v. Bridget Trice, appealed to core principles of client autonomy and choice:

Mr. Padden got the case in the door, he got some lawyers to handle it, and then he disappeared. And at the end of the day, he wants to get his full 30 percent contract because, if you read their brief, a contract is a contract. It’s not when it comes to attorneys’ fees. Not under Minnesota law. Judge Montgomery did the right thing by honoring the client’s wishes. This was a decision by Bridgett Trice and Quincy Adams, that they wanted the lawyers who really got them their recovery to be appropriately rewarded. They have the right as clients to do that, and if you’re going to worry about public policy, the public policy should be in recognizing the client’s interests and protecting those interests. Thank you. 14

Like openings, the best closings share short, sweet, and specific qualities. Effective closings don’t belabor points, but instead reiterate the key points in simple and motivational terms. Prolific advocates inject personal style into their delivery. They include strong themes and narratives that appeal to ethics, morality, and justice. And they implicitly or explicitly ask the court to take a certain action, leaving little room for ambiguity.

There is no one-size-fits-all approach to success in oral argument. But these winning examples provide useful guidance to practitioners. Keeping openings and closings brief, compelling, and on-point are key ingredients in making a lasting and persuasive impression.

KYLE R. KROLL is an adjunct professor at the University of Minnesota Law School and an attorney at Winthrop & Weinstine, P.A. in Minneapolis, where he practices business litigation at both the trial and appellate levels. The views expressed in this article are those of the author alone, and not of any other person or organization.

The author expresses special thanks to Miriam Solomon for her research assistance and contributions to this article.

1 Ruth Bader Ginsburg, Remarks on Appellate Advocacy, 50 S.C.L.R. 567, 571 (1999).

2 See Stephanie A. Vaughan, Experiential Learning, Moving Forward in Teaching Oral Advocacy Skills by Looking Back at the Origins of Rhetoric, 59 S. Tex. L.R. 121 (2017); Sylvia H. Walbolt, Openings in Appellate Oral Arguments, Carlton Fields (3/22/2019). https://www.carltonfields.com/insights/publications/2019/openings-in-appellate-oral-arguments

3 George W. Hicks, Jr. Oral Argument: A Guide to Preparation and Delivery for the First-Timer, KIRKLAND & ELLIS (8/16/2019). h ttps://www.kirkland.com/publications/article/2019/08/oral-argument_a-guide-to-preparation-and-delivery

4 Emily R. Bodtke, Arguing at the Appellate Level, Bench & Bar of Minn., April 2017, at 35 (“[I]t is far better to use the limited time available to explain why the law supports a desired outcome, rather than pontificate about the wrongs committed against a client.”).

5 See Hicks, Jr., supra.

6 See Marlene Trestman, Women Advocates Before the Supreme Court , The Supreme Court Historical Society (5/21/2021). https://supremecourthistory.org/women-advocates-beforethe-supreme-court/

7 Romag Fasteners, Inc. v. Fossil, Inc., Oyez, https://www.oyez.org/cases/2019/18-1233 (last visited 8/26/2021). For more information about this case, in which Ms. Blatt faced off against Mr. Katyal, see Kyle R. Kroll, Lanham Act Disgorgement Just Go More Complicated, Bench & Bar of Minn. (Dec. 2020), https://www.mnbar.org/resources/publications/bench-bar/columns/2020/12/01/lanham-act-disgorgement-just-got-more-complicated.

8 United states Forest Service v. Cowpasture River Preservation Association, Oyez, https://www.oyez.org/cases/2019/18-1584 (last visited 8/26/2021).

9 Growe v. Emison, Oyez , https://www.oyez.org/cases/1992/91-1420 (last visited 8/26/2021).

10 See Tresman, supra.

11 DePierre v. United States , Oyez, https://www.oyez.org/cases/2010/09-1533 (last visited 8/26/2021).

12 Sampson v. Lambert, Nos. 17-1104, 17-1106, 17-1114, 17-1117 (8th Cir. 2018), http://media-oa.ca8.uscourts.gov/OAaudio/2018/2/171104.MP3

13 Weinberger v. Wiesenfeld , Oyez, https://www.oyez.org/cases/1974/73-1892 (last visited 8/26/2021).

14 Padden Law Firm, PLLC v. Trice , Nos. 18-2451, 18-2576 (8th Cir. 2019) . http://media-oa.ca8.uscourts.gov/OAaudio/2019/10/182451.MP3

The author expresses special thanks to Miriam Solomon for her research assistance and contributions to this article.

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A Quick Guide to Preparing a Winning Mock Trial Closing Argument

Your team’s closing argument just needs to do two things: tell your story and explain why your story is better than your opponent’s.

1. Tell Your Team’s Story

A. first, talk about the case.

The attorney responsible for your team’s closing argument should start by explaining the case as they see it, using their own words. They should pretend they’re telling the story to a friend.

I suggest students record themselves as they tell the story, then play the recording back to see how they tell the story. It’s easier to tell a story in an engaging way if it’s told verbally instead of written out.

b. Second, Add Evidence

Then, for each part of the story that your student tells, they need to explain how the evidence supports that part of the story. They should remind the judge of the testimony they heard and the exhibits they saw.

i. Consider Using Cross Examinations

Your team could look back at their cross examinations and make a list of all the testimony they expect from the opposing witnesses. If any of the other team’s witnesses will testify to a fact that supports your team’s story, add that testimony to your team’s closing. Your team’s story is much stronger when your team can argue that even their opponent agrees with them on a few key points.

And if possible, the attorney delivering your closing argument should incorporate a few quotes from the witnesses. Your trial attorneys should work together during the trial to take notes as the witnesses testify. When a witness on the other team gives testimony that’s really helpful, they should try to write down the exact words the witness said.

2. Explain Why Your Story Is Better Than Your Opponent’s

Every closing argument should include, well…argument! In an opening statement, your team gives a preview of what the evidence will be. But in a closing argument, it won’t just recap what the evidence was.

After your closing attorney tells your team’s story, they will then explain why the judge should believe your team’s story, not your opponent’s. Your closing attorney should tell the judge why your team’s evidence is more credible and more reliable than your opponent’s. Here are five ways to do this.

a. Cast Doubt on Your Opponent’s Case Theory

A closing argument for the defense team typically argues that there’s plenty of reasonable doubt in the prosecution’s case. And a prosecution’s closing will argue that the doubt the defense tries to raise is not reasonable at all.

Often, in mock trial fact patterns, one team’s case theory depends on a lot of unrelated events happening at the same time, or on circumstances that seem too coincidental. If this can be said of your opponent’s case theory, point it out in your closing argument.

b. Attack the Reliability of Your Opponent’s Witness(es)

If any of your opponent’s witnesses is unreliable, your team should point that out to the judge. For example, if your opponent’s witness’s testimony is contradicted by more than one piece of evidence, your team should say so in its closing argument.

c. Attack the Bias of Your Opponent’s Witness(es)

If an opposing witness has a motivation to lie, you definitely want to call them out! Again, cite to (and quote, if possible) testimony given and admissions made during their cross examination.

d. If a Witness Was Impeached, Question Their Credibility

Getting the chance to impeach a witness is rare, and the opportunity is kind of wasted if it’s not discussed in closing argument.

Here’s a quick formula for doing this:

Note that your opponent relies on testimony from a particular witness [name the witness].
Remind the judge that the witness was impeached during cross-examination.
Explain how the witness’s testimony did not match their witness statement.
Tell the judge that the witness can’t keep their story straight and suggest that nothing they say should be believed.

e. Explain why your witnesses are credible and/or unbiased.

After your closing attorney points out all the ways your opponent’s evidence is bad, they explain why your evidence is better. They should explain how your team’s witnesses give consistent testimony or how they are more credible than your opponent’s.

Conclusion

To summarize, your team’s closing argument should start by telling your story, including references to evidence presented at trial. Your closing argument should then give some arguments about why the judge should believe your story, and not your opponent’s.

Hope you find this quick guide to be helpful. Next time, we’ll dive a little bit more into closing arguments and go over an example. Until then, feel free to reach out with any questions!

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The Beginner’s guide to the closing speech

I have no way of knowing how important closing speeches are. I know of no research that even begins to throw light on whether they make the slightest difference to the outcome of a trial, or whether, by the time for speeches has arrived, juries or magistrates have usually made up their minds.

So most of what I am going to say is not based on solid evidence.

Nevertheless my feeling, and one that is probably shared by most advocates, is that the closing speech is one of the most crucial parts of the case. It is where you have the chance to marshal your arguments; to make the points explicitly that previously had only been implicit in your questions; and, just asimportant, to deal with the points made by the other side.

Visual Aids

It is surprising how little impact technology has made in most court-room speeches. There are some cases in which counsel operate clever computer gimmickry but they remain the exception, usually for very complicated or serious cases, and not the rule.

The ghastly paraphernalia of the “presentation” – Powerpoint, interactive whiteboards and bullet point projections of what the speaker is about to say – have, I am glad to say, made no impact at all. This is probably because such aids actually distract from what the speaker is saying.

That is not to say that a few well chosen props cannot be quite effective. Nothing beats the drama of handling Exhibit 1, the blood-stained knife, and drama makes a jury listen. I was once fortunate enough to be led by Nigel Pascoe QC – who knows more about both advocacy and theatre than anyone – in a baby shaking case. Although he could not produce a baby for his closing speech, he did the next best thing by producing a realistic doll which he then proceeded to manhandle in a vivid demonstration of how a parent should not behave with a crying baby.

But with or without props, only two things define how persuasive your speech is: what you say and how you say it.

Different types of closing speech .

There is of course an important difference between a closing speech for the defence and one for the prosecution. As a rule the defence will be trying to ask difficult questions, while the prosecution will be trying to provide irrefutable answers.

There are also differences between both the technique and the procedure in a Magistrates Court (where generally speaking the prosecution does not make a closing speech) to that in the Crown Court. (where it usually does).

So here are some hints for advocates who have not had much experience. Many of them are, of course, of equal relevance to prosecutors and defenders. But in general the focus will be on representing the defence.

Preparation for the speech starts when the jury panel comes into court

I don’t mean by this that you need to have started to write a speech before the trial starts, although you should, of course, have a strategy and the beginnings of a plan for how you would like to address the jury at the end.

What I do mean is that when you stand up to make your final effort to persuade the jury you must be somebody that they will pay attention to. They don’t have to like you – it is a good thing if they do – but if they don’t take you seriously, and especially if they don’t trust you, there is no way that you will be able to persuade them of anything.

So whenever the jury is in court, and preferably of course even when they are not, you must be sensible, reasonable and straightforward . It is also a great help to be polite. Amongst contemporary politicians few have generated as much vitriol from his opponents as the Education Secretary Michael Gove. Watch the way he deals with it: he is scrupulously polite to all, no matter how rude they are to him. You may or may not approve of his policies but you should copy the way his good manners disarm the fiercest opposition.

Dress properly .

A grey and scruffy collar and a rumpled pair of bands creates a very bad impression; as though you can’t be bothered.

On the other hand a battered and balding wig is better than a new white one; It makes the wearer look more experienced.

If you are defending, make a good note of the prosecution opening speech . It is surprising how often prosecutors say something in their opening speech which turns out to be flatly contradicted when the evidence is called. When that happens, what better way to highlight the fact than by quoting from the opening speech in your closing address to the jury?

When you make a mistake, admit it straight away.

When you have taken a bad point, concede it.

When your opponent makes a good point, acknowledge it.

Do not insult witnesses.

Do not interrupt or be rude to your opponent or the judge. Not only does this make for far more pleasant atmosphere in court, it also makes you seem more serious, sensible and therefore authoritative.

Many jurors will have seen American court-room dramas, some may even have watched American court TV (for legal nerds, like`me and probably you if you have read this far, it can make for very enjoyable viewing). They may, as a result, be expecting all sorts of shouts of “Objection!” and “Strike that from the record!” and probably a judge furiously hammering his gavel as grandstanding attorneys approach the bench. To start with they will be disappointed when they see that that is not really the way we do things.

But jumping up and down and yelling “objection!” is definitely not the way to impress jurors. This does not mean you have to roll over and concede every point: if something is important then of course you will have to contest it. If you are angry for good reason, as occasionally you may be, show it. But do so politely and never lose your temper. Genuine anger will be all the more effective for being deployed sparingly and only when it is actually appropriate.

Try to keep an eye on how the jury are reacting as the trial continues. It is usually very difficult to “read” a jury, but sometimes it is obvious that a particular witness, or a piece of evidence has struck home.

Some advocates have a way of cross-examining witnesses while not looking at them at all, just at the jury. The idea is that you keep in touch with the jurors – they see your face and you see theirs. But to my mind it smacks of rudeness to the witness. You are asking him questions so you should at least pay him the courtesy of attending to his answers. If the focus of your attention appears to be on the jury it gives the impression that you are putting on a show instead of seriously listening to the evidence. To put it bluntly, it can make you look like a slimy lawyer.

Put yourself in the jury retiring room. Whose arguments are going to carry more weight: those of the slimy lawyer or those of a sensible and straightforward lawyer?

Never, ever misquote the evidence

Nothing will lower your credibility with the jury more quickly and more certainly.

It goes without saying that you will not do so deliberately. But in the heat of battle wishful thinking can sometimes play tricks with ones memory. It is easy to miss the crucial word, or worse still, to imagine that something was said when it was not. Before you take a point based on what a witness has said you must be absolutely sure that you are quoting the evidence correctly.

For this reason it is essential that, if it is possible you keep, or at least have somebody behind you keeping, a good note of the evidence. Some advocates are reluctant ever to make a note, but unless you have a remarkable memory you should not be one of them.

Many beginners might think – why bother with notes? After all everything is recorded. And so it is (including, these days, conversations between counsel while the judge is out of court, so be careful what you say, unless you want a Gordon Brown style embarrassment don’t call the judge a “stupid bigoted woman” in the court-room: wait until you reach the robing room); but for practical purposes you will not be able to access the recording except occasionally to check on some particularly important disputed evidence.

You cannot expect to note everything that is said, but with practice you should be able to get the most important bits down, except of course when you are on your feet yourself. If you have no-one behind you to take a note of your cross-examination then, if you have made some progress, as soon as you sit down make a note of at least the most important answers that you received.

Should I write my speech out?

Beginners often worry about this and opinions differ. There is no right answer. My opinion is that in general you should .

Sometimes, of course, – and it is one reason why advocacy in front of the Magistrates can be much harder than in the Crown Court – there is simply no time to prepare a closing speech. You call your client, he cuts a miserable figure in the witness box; and it’s “Yes Miss Bloggins?”. Off you have to go and do the best you can.

But usually you do have at least an hour or so to prepare the speech. It is almost always time well spent.

To deliver a closing speech extempore is not easy. There are those who can do it well, and they can make exceptionally good advocates. Their speeches are likely to be lively, spontaneous and convincing, and the lack of any writing will leave the advocate free to connect with the jury. Think, for example, of Boris Johnson’s speech at the end of the 2012 Olympics. It had all the hallmarks of being beautifully unprepared and was as a result hilarious, joyful and perfectly pitched to the occasion. But only he could have done it. Nobody else could have emulated Boris’s apparently bumbling ramblings and carried the audience with them.

And in fact even bumbling Boris may not have been as unprepared as he seemed. If you watch the speech carefully you will see that he appears to be looking at notes of some sort as he speaks.

There are some criminal advocates who can do something similar but they are invariably individuals with their own inimitable styles. You are almost certainly not one of them.

There are plenty who think they can do it but cannot. Nothing is achieved by rambling on about the burden of proof and drifting aimlessly over a few bits of evidence. You will lose your audience. Remember that unlike a theatre audience they haven’t chosen to come and watch you, they have been forced to do so. They can’t get up and leave, nor can they usually heckle (although occasionally, and very disconcertingly, they write notes and pass them to the usher as you are speaking). Once they get bored with you their main way of showing their displeasure is to give their support to the other side. You will know if you have lost a jury’s attention. It will sit sullenly silent, not smiling, not frowning, just staring vacantly. You will have the devil’s own job to get them listening to you again.

So don’t be afraid of writing out copious notes, or even of writing the whole thing verbatim. Juries don’t mind if you use notes.

Churchill used to do it. In fact he would spend hours changing a word here, a paragraph there and would even practise out loud until he was satisfied.

Nelson Mandela’s famous speech in the Rivonia treason trial (strictly speaking it was an unsworn statement from the dock) was written out more or less verbatim, and fortunately his notes have been kept for posterity so we know that he always intended to end with this magnificent, courageous peroration:

During my lifetime I have dedicated myself to this struggle of the African people. I have fought against white domination, and I have fought against black domination. I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die.

Margaret Thatcher was writing her conference speech at 2.45 a.m. when the Brighton bomb exploded. She re-wrote it and delivered it later that day.

There have been many other great political orators and very seldom do they simply stand up and speak. Their speeches have almost invariably been painstakingly written, often over several drafts. And many, many first rate advocates routinely write and re-write their closing speeches.

Remember, though, that you are writing a speech not an essay. Keep your sentences short and your points – as far as you are able – reasonably simple. There is nothing worse than constructing an argument that might be perfectly good on paper, which is too complicated to explain to a jury. You will get lost, the jury will get lost and your client will pay dearly for your mistake.

If you have written down what you want to say you will at least have a structure and argument of sorts, and this will make it far less likely that you will lose your direction.

However, it is one thing to write it: it is another thing altogether to read it. You absolutely must not do that . Nor should you try to memorise it: you don’t have time, and even if you did a speech recited from memory is unlikely to work very well. You will sound like a ham actor delivering a soliloquy.

The point of writing the speech is rather different. You will find that the act of committing it to paper, or even to a computer screen sparks thoughts in a way that does not happen when you simply stand up and speak. Arguments present themselves, connections suddenly make sense. You can check the evidence to ensure you do not misrepresent it. If you are lucky useful turns of phrase and helpful analogies will occur to you.

All this will be of enormous assistance when you actually address the jury. If you have written it down you will know exactly where you are going and soon you will find that you seldom need to look down at your notes at all. You almost certainly won’t say exactly what you wrote down. That doesn’t matter a hoot. In fact it probably means you will sound more natural; it is easy to write something down that sounds awkward when spoken out loud. But the fact that you have written it will be a comfort. You will know that if – and it happens to almost everyone – you somehow get lost or forget where you are going you can glance down and get yourself back on track.

What do I do with my notes?

You need them to hand, but the typical court room desk or table in front of counsels’ row is far too low for most people to be able to read their notes easily when they are standing up. So you will have to prop them up with something if you are going to be able to use them. Different advocates favour variously a pile of lever arch files, an empty cardboard box or a couple of Archbolds.

Of course a lectern would be ideal but a ridiculous etiquette has it that only silks are allowed to use lecterns. As a result at many courts they are not even supplied, and at the more conservative venues you, as a mere junior, will face stern judicial disapproval if you try to use one. A notable exception is Guildford Crown Court where the legacy of a popular local barrister Frank Gillibrand has been used to purchase lecterns for every court-room. Silks are rare birds in Guildford and the lecterns are gratefully used by all.

In neighbouring Winchester a well-intentioned designer incorporated them into the structure of the 1970s court-rooms, Unfortunately, he was not a very good designer, or at least not very good at designing lecterns, and they are so awkward to use that you are almost better off without them.

What is the best time of day for my speech?

The answer is, as with so many things in advocacy not at all clear. My view is that 10.30 in the morning is usually the ideal time.

There are those who prefer last thing in the afternoon. The theory is that jurors then leave the building with your arguments ringing in their ears and reverberating around their cerebella all night long. I disagree. When jurors are tired or bored they want to go home, or start their weekends; they don’t want to listen to you. And unless they listen it does not matter how good your arguments are, they will be in vain. Most advocates would do a great deal to avoid having to address a jury on a Friday afternoon. The advantage of having the last word before a weekend is far outweighed by the fact that the jury will subconsciously resent you for delaying its start.

So the sensible advocate will generally try to ensure that his or her speech is heard first thing in the morning. Not only is that when the majority of people are most alert, it also gives you the evening before and, if necessary, the morning before to prepare your speech.

Of course whether you can speak in the morning all depends on the evidence and the flow of the trial, but there are ways of improving your chances.

You can, of course simply ask:

The traditional way is to say, perhaps disingenuously:

“ I could do my speech now, but I suspect be that it will be considerably shorter if I could have a little time to focus it on the main issues .”

There is no reason why a well prepared speech is necessarily shorter than an unprepared one. In fact the opposite is often the case, so this sounds a little insincere.

So it is better to be blunt:

“ I would like a little time to sharpen my thoughts. I wonder whether Your Honour would be prepared to rise a little early this afternoon, and perhaps make the time up by starting half an hour early tomorrow morning? ”

It would be a harsh judge who rejects such a reasonable request.

But harsh judges do exist. Such a judge will almost certainly have started sitting half an hour earlier than usual anyway. These days they are all under constant pressure to cut delay and get through their lists as fast as possible. From the point of view of the public, and indeed other litigants that may be desirable. But you do not represent the public or other litigants, you represent the defendant: you certainly do not want to cut corners if the result is that your client is even slightly more likely to go to gaol.

If you have the misfortune to appear before one of these troublesome Ministry of Justice enforcers, do not allow yourself to be bullied.

A good way of dealing with such a judge is to time your legal submissions carefully. There are few cases in which there is not some sort of discussion about the law at some point between the end of the evidence and the judge’s summing up. Indeed, the Court of Appeal strongly encourages the practice. Even if the law seems to you entirely straightforward you need to be sure that the judge thinks so too. Maybe he has missed something, maybe you have. Anyway it can get boring sitting on the bench just observing the trial. Some judges are delighted to be given a chance to play a bigger part by wrestling with a legal issue.

So you are always entitled to make legal submissions, and half past three in the afternoon, after all the evidence has been called, is a very good time to make them. By the time the jury has been sent out and a check-list of directions sorted out it should be getting on for 4 o’clock, even if there isn’t much to argue about.

Perhaps there is time for the prosecution to make a speech then, but probably not for the defence too. That, in fact, might be the perfect outcome from a defence point of view.

The Defence Closing Speech in the Crown Court

Your simple objective is to raise at least one fundamental doubt about the prosecution case.

If that is done then it will be impossible to be sure of your client’s guilt and you will be acquitted.

Broadly speaking defence arguments fall into four categories.

First, and probably most common, are those cases where the prosecution witnesses’ reliability is challenged; typically, perhaps an identification issue, or a self-defence case turning on “who threw the first punch.”

Secondly: cases where the witnesses’ honesty is challenged. Historic sex cases, for example, often leave little scope for mistake or misunderstanding: one or other party must be lying.

Thirdly: cases which depend upon disputed expert evidence . An example might be a “baby battering” case where, relying upon evidence of broken ribs, bruises and brain damage the prosecution experts assert that a baby must have been shaken, even though no-one has seen it happening.

Finally cases where the prosecution evidence is accepted but the prosecutor’s interpretation of the evidence is disputed: for example a conspiracy to supply drugs where the telephone and observation evidence is agreed, and the argument is over whether it does in fact prove a conspiracy.

Of course these categories overlap a lot. A drugs conspiracy, for example, may involve surveillance officers who are mistaken in their observations, a “supergrass” lying to save his own skin, forensic scientists making mistakes in an analysis of drug residues on bank notes and a prosecutor drawing unwarranted conclusions from the telephone evidence.

In other cases, perhaps particularly street or pub fights, it may be possible to argue that the witnesses are either unreliable or dishonest.

But identifying which type of case you are dealing with should help you to concentrate your fire where it is needed. In a sex case, for example, if the dispute is whether the incident took place at all the issue is almost certainly honesty. If so, there is no point in wasting time demonstrating that perhaps the complainant was unreliable on some of the surrounding details.

“ Members of the jury this woman couldn’t even remember if the defendant was wearing a red top or a blue top? ”

It invites, in fact demands the response:

“ So what? If that’s your best argument we’re against you. ”

How long should my speech be?

As so often, Churchill was right. “ A good speech should be like a woman’s skirt: long enough to cover the subject and short enough to create interest .”

Typically, in a 3 – 5 day trial this means 30 to 45 minutes; if the trial has lasted a couple of weeks then perhaps up to an hour.

What should I say?

The most important part of your speech is that which deals with the burden and standard of proof. You simply cannot take it for granted. And given its importance you should usually deal with it near the beginning of the speech; and at the end; and in the middle.

Don’t forget that being “sure” means the same as being “sure beyond reasonable doubt”. The latter is a well-known phrase with a solemn ring to it and I rather like it. One does not want to make too much of the analogy but the difference is rather akin to that between the poetic language of the Authorised Version and the more prosaic words of the New English Bible.

Unfortunately, once you have addressed ten or twenty juries on the subject of the standard of proof, it can get rather boring and mechanical. It is impossible every time to think up a new way of saying much the same thing. On the other hand, remember that what may bore you, just because you have said it all before, will not necessarily be boring to the jury.

I am regularly heartened by the seriousness with which juries take their task. Many will remember the superficially foolish sounding questions asked by the jury in Vicky Pryce’s first trial for perverting the course of justice. One of the questions it asked was “ what is reasonable doubt ?” The jurors were widely castigated for asking such an apparently stupid question: but plenty of our senior judges over the years have proved themselves equally baffled by it.

The answer, according to the trial judge Mr Justice Sweeney, is that a reasonable doubt is “a doubt which is reasonable.” That was a very straight answer. Other judges have attempted more detailed elucidation, usually by saying what it does not mean. It does not mean proof “beyond a shadow of a doubt ” 1 Nor does it does it mean “ a doubt for which you could give reasons…. ” 2 On the other hand it might mean “ the sort of doubt that might affect the mind of a person in dealing with matters of importance in his own affairs .” 3 So the jury’s question was not actually stupid at all; it simply revealed that the jurors were quite properly agonising over the meaning of a phrase, something that is, indeed, difficult to pin down. It is hardly surprising that they asked for help.

So, what do you say to the jury about the need to be sure before convicting?

As judges have found, it is much easier to define what being “sure” is not than to say what it is. For this reason many advocates give some such explanation as this:

“Being sure does not mean you saying to yourself: “I think he did it”, or “he probably did it”, or even “I’m almost sure he did it.” If the prosecution have made you almost sure then they have not proved the case to the high standard that the law requires. If there is a possibility that you could be mistaken then you are not sure, and the proper verdict is one of not guilty.”

To some extent the way you pitch this part of the speech depends on how strong the case against you is.

If it seems a very strong case then the standard of proof is probably one of your only points. You can afford to devote quite a lot of your speech to it.

On the other hand, if you have plenty of other good points to make they can seem a little devalued if you stress the burden of proof too much. There is always the danger that a jury will think:

“ Why is he going on about the burden of proof? It must be because all the evidence supports the prosecution and he is hasn’t got anything better to say. ”

Of course, if you haven’t got anything better to say, then so be it. But it is remarkable how in most cases good defence points do tend to emerge as the case plays out.

Generally speaking it is best to concentrate your fire on attacking the main prosecution points rather than trying to shore up your own witnesses. It is not, after all, your job to prove a case but to show that the prosecution case is unsafe.

Make sure you are realistic in what you say. If you take silly points the jury will think you are silly.

If you have followed my advice the jury will regard you as a straightforward, honest and sensible person. They rightly expect you to articulate the defence answer to the best prosecution points. So identify the best prosecution points and answer them as best you can.

All the best speeches have a central backbone, a spinal column to ensure that the speech stands up: the witnesses have motives to lie, the witnesses were drunk, the witnesses all contradict each other. The possibilities are endless but if you can build your speech around a theme of this sort it will be far easier to follow.

Of course exactly how you structure your speech is up to you. It will vary from case to case. But a good pattern is this:

State your argument early on.

Illustrate the argument with examples from the evidence.

Conclude by stating it again.

Make it easy for the jury to return the verdict you want

This is a principle that you should bear in mind throughout your speech.

Let me give an example: your client alleges a vast police conspiracy to convict him of assaulting his neighbour, after a dispute over noise from a drunken party. He may even be right; fact can indeed be stranger than fiction. Nevertheless, it is exceedingly improbable. The jury will consider it far more likely that both parties were drunk and lost their tempers. If your speech leaves the jury with the idea that a not guilty verdict depends upon the existence of a police conspiracy, your client will love the speech but will be convicted. On the other hand if you suggest a more mundane explanation in which both parties are as bad as each other so that you cannot be sure who is telling the truth, that will be much easier for the jurors to agree on. Your client may not enjoy the speech, but he will like it when he is acquitted.

But do be careful about being rude about your client in your closing speech. Sometimes it may be in his best interests to describe him in unflattering terms, but if you are going to do so it is always tactful to tell him first and if possible obtain his agreement. Once they have heard the evidence many defendants will surprisingly often be happy to agree that they are stupid, drunk or even nasty individuals. The jury do not have to like the defendant to acquit him and if he is thoroughly unlikeable then it is better to face the fact rather than deny it and look like an idiot. Tell the jury that the fact that he’s nasty does not mean that the evidence proves his guilt.

Generally speaking the points that you must get over to the jury are:

The presumption of innocence means that the defendant is not guilty. You should find him guilty only if the prosecution evidence is so overwhelming that it allows of no other explanation.

The standard of proof is such that a “not guilty” verdict does not mean that the complainant is lying. You may in fact be “almost sure” that she is telling the truth, but that would still require a verdict of not guilty. On the other hand in most cases a “guilty” verdict cannot be returned unless you are sure that the defendant was lying.

It is much easier for a jury to accept that a witness is mistaken than that he is deliberately lying. Don’t allege that a witness is dishonest if his unreliability is equally explicable by an honest mistake.

A similar principle may well apply to the defendant’s evidence as well, but in reverse. Unless you are sure that he is lying, he is not guilty. Only if you are sure that he is lying must you find him guilty.

Cases can be laughed out of court. But it takes the right case and a very special advocate to achieve that. It also helps to have an interfering judge or a galumphing nincompoop for an opponent. Such a happy concatenation of circumstances comes together almost as rarely as a total solar eclipse.

A little gentle teasing of your opponent can be fine, but be careful you do not appear as a sort of David Cameron style smoothie-chops, mocking a less polished colleague. This is of course a special danger for those – and they do exist in the legal profession – who already have a tendency towards smoothie-chops snootiness.

And there are some types of cases in which humour should never, or hardly ever, be attempted. Homicides, most sex cases and serious assaults need to be taken seriously and to be seen to be taken seriously. As a rule, if someone cracks jokes during such a trial no-one laughs and the joker looks like a fool.

This mistake was made in his opening address by Don West, defense attorney for George Zimmerman the Florida Neighbourhood Watch representative on trial for shooting dead Trayvon Martin, a harmless teenager walking through his gated community. The case excited huge controversy. As reported by Richard Luscombe in The Guardian

“West began his opening statement with a joke, poking fun at the two weeks of jury selection that delved deeply into what prospective panel members knew of the case. “Knock, knock,” he said. “Who’s there? George Zimmerman. George Zimmerman who? Good, you’re on the jury.”

There was little reaction in the courtroom and West acknowledged that his joke had fallen flat.”

Nevertheless, West went on to win the case but it was in spite of, not because of his sense of humour.

On the other hand in less serious or emotive cases humour can be a very powerful weapon. No-one can teach you to be funny, least of all me, but if you can make the jury laugh with you, they will often happily do most of what you ask. If the case allows it then you should try to make the jury at least smile once or twice. It won’t win you the case on its own but it will help.

Most comedians will tell you their best jokes are often the result of careful preparation: this is just as true for jokes in your closing speech.

Seriousness

It is, of course, much easier to be serious than to be funny, and fortunately juries appreciate a proper seriousness too. There is much to be said for emphasising the importance of the jury’s role and reminding them of how seriously they should take their task. Although one reads the occasional horror story about how a jury has arrived at a verdict through a ouija-board and so on, my experience is that most do seem to approach their solemn task with great care.

Sometimes you will need to take a jury through a complex argument. Don’t worry, they will follow it as long as they are listening. Tell them it is important, tell them that they need to concentrate and do not patronise them. They will listen.

It is a serious issue but you are not allowed to comment on what punishment may be meted out on the defendant if he is convicted.

1 Miller v. Minister of Pensions [1947] 2 All E.R. 372

2 R v. Stafford & Luvaglio 53 Cr.App.R. 1

3 Walters v. R. [1969] 2 A.C. 26

Checklist For Closing Argument

By Hon. Robert Trentacosta

The following is a checklist to help you prepare and deliver a successful Closing Argument . In your first few trials, be sure to review this list until the items become familiar and habitual.

Personal preparation

Review the applicable jury instructions for each count or cause of action, and any defenses applicable to your case. In crafting your Closing Argument, you must know the elements you need to prove or refute.
Review your Opening Statement. There must be symmetry and consistency between your Opening Statement and Closing Argument for you to have credibility with the jurors.
Review your case theme and theory. By Closing Argument, your case theme and theory should be familiar to the jurors. Closing is the time to make sure that you bring the evidence together for the jurors so they will fully understand and agree with your case theory.
Organize your argument. The basic components are: a dynamic beginning; a compelling and accurate factual story consistent with your case theme and theory; an application of the facts to the law; a strong ending that reinforces your case theme/theory; and a clear “ask” (tell the jurors what you want them to do).
Once you have outlined the narrative, decide how you will illustrate your argument with visual aids.
Review your trial notes to excerpt any successful impeachment of witnesses or admissions of untruthfulness. Prominently feature any untruthfulness of opposing witnesses in your Closing Argument.
Create an outline of your Closing Argument and practice out loud .
Anticipate opposing counsel’s arguments and craft responses, in advance of Closing, to inoculate the jury against your opposition’s claims.
Put the outline of your Closing Argument on your laptop or on a manila folder that can be laid flat on the courtroom podium. This will give you a safety net should you lose your place. Reference to these outlines can be done at a glance and will not interfere with your delivery.
Do not write out your Closing Argument on separate pages (that need turning) or on a legal pad (you will be flipping pages). You want to maintain eye contact with the jurors throughout your Closing. Anything that prevents you from doing so, needs to be jettisoned.

Delivery of your closing argument

Do not read your Closing Argument. Like Opening Statement, this is a performance that must be animated, engaging and appealing to the jurors.
Speak with confidence and conviction.
While you may use the podium as a base for your laptop or manila folder containing your outline, step out from behind the podium, stand in front of the jurors, and speak directly to them.
Remember you have a “magic minute” at the beginning of your Closing Argument when you will have the jurors’ rapt attention. Make your beginning memorable and consistent with your case theme and theory.
Be scrupulously accurate when you recount facts for the jury. You may not argue facts that are not in evidence. Your credibility is key to persuading the jury to trust you.
Use visual aids to illustrate your points. Make sure the visuals are large enough to be seen clearly by the jurors; legible and (in the case of video or photos) vivid enough to convey convincing power.
This is an argument. Argue. Do not simply recite facts to the jury. Explain to the jurors the significance of the facts and why they support your position.
Keep your legal argument simple and understandable. Show the jurors the elements of the crime, or cause of action, and make it absolutely clear why the facts support your position.
If the opposition was inaccurate in their Opening Statement or made promises they did not keep, make them pay. Point out to the jury the opposition’s failures. For example, your preface may be: “Here are the promises the other side made to you in their Opening Statement. Promises that they did not, and could not keep…”. It can be especially powerful to quote from your opponent’s Opening Statement when you list the inaccurate facts or failed promises.
Hone-in on the opposition’s witnesses that were impeached or admitted untruthfulness. If the impeachment/untruthfulness was on a key point, ask the jurors to disregard the witness’s testimony in its entirety as not worthy of the jurors’ belief.
Don’t bore the jurors with insignificant details. If you give as much time to the trivial issues or facts as to the important ones, you will dilute your argument and become ineffectual.
Build to a strong finish. Inject passion into your argument as you finish. For example, in a self-defense case you may argue: “We know now that Bill Williams had to make a life and death decision when he was charged by a drunken and crazed Sam Booth. Bill Williams chose to defend himself. He chose to fight. He chose to live. And ladies and gentleman, he chose to do what the law allowed him to do – defend himself and survive.”
At the end of your Closing Argument, make a clear “ask” . Tell the jurors what you want them to do and be crystal clear. For example, “We ask you to find Bill Williams, not guilty of this charged crime.”
In keeping with a clear “ask”, make sure you explain the Jury Verdict form to the jurors . Tell them specifically what they need to know to fill out the form to reach your desired verdict.

Closing Argument requires conscientious and determined personal preparation. You want to create an argument that is consistent with your case theme/theory and symmetrical with your Opening Statement. The argument should not be read to the jury. Deliver the argument with confidence and conviction. Make eye contact with the jurors and argue the case. Do not just recite facts, but explain the significance of the facts and why they support your case. Be honest when reciting facts to the jury and make the other side pay if they were inaccurate, or untruthful in their Opening Statement. Build to a strong conclusion and finish with a clear “ask”. Review the Jury Verdict form with the jurors to reach your desired verdict.

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Closing Statement

Each side gives a closing statement at the conclusion of the trial, after all evidence has been given. Each lawyer will give a summary of the evidence the judge heard on the key issues, and offer their opinion on the reasons the judge has to find in their favour.

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Part 1: Working it Out
1.0 Introduction
1.1 The Big Picture
1.2 Goal Setting Worksheet
1.3 Reaching an Agreement
1.4 Going to Court
1.5 Who Can Help?
1.6 Taking Care of Yourself
1.7 Health Check Questionnaire
1.8 Conclusion
2.0 Introduction
2.1 Financial Orientation
2.2 Financial Inventory Worksheet
2.3 Monthly Budget Worksheet
2.4 Financial Separation Checklist
2.5 Legal Orientation
2.6 Care of Children
2.7 Parenting Decisions Worksheet
2.8 Child Support
2.9 Child Support Activity
2.10 Child Support Worksheet
2.11 Spousal Support
2.12 Spousal Support Worksheet
2.13 Property Division
2.14 Excluded Property Worksheet
2.15 Property Division Worksheet
2.16 Conclusion
3.0 Introduction
3.1 Managing Emotions
3.2 My Triggers Worksheet
3.3 Managing Your Emotions Worksheet
3.4 Communicate Constructively
3.5 Am I Ready for this Conversation Test
3.6 Good Communication Techniques
3.7 Communicating in Conflict
3.8 High Conflict Communications
3.9 Communication Worksheet
3.10 Communication Pitfalls
3.11 Communication Pitfalls Worksheet
3.12 Communication Review
3.13 Communication Dos and Don’ts
3.14 Negotiating
3.15 Negotiating for Win-Win
3.16 Negotiation Worksheet
3.17 Negotiating: Before, During and After
3.18 Conclusion
4.0 Introduction
4.1 Mediators
4.2 Family Justice Counsellors
4.3 Lawyers
4.4 Unbundled Legal Services Worksheet
4.5 Meeting a Lawyer Worksheet
4.6 Questions to Ask Your Lawyer Worksheet
4.7 Free and Low Cost Legal Services
4 .8 Other Professionals
4.9 Conclusion
5.0 Introduction
5.1 Creating Agreements
5.2 Parenting Plan Worksheet
5.3 Separation Agreement
5.4 Separation Agreement Worksheet
5.5 Writing Agreements
5.6 My Priorities Worksheet
5.7 Finalizing Separation Agreements
5.8 Divorce
5.9 Steps to Uncontested Divorce
5.10 Divorce Flowchart
5.11 Conclusion
Part 2: Going to Court
6.0 Introdcuction
6.1 Court Overview
6.2 Key Issues Worksheet
6.3 Choosing the Right Law
6.4 Choosing the Right Court
6.5 Court Rules
6.6 Legal Rights
6 .7 Care of the Children
6.8 Child Support
6.9 Child Support Exercise
6.10 Spousal Support
6.11 Property Division
6.12 Property & Debt Division Exercise
6.13 Property Worksheet
6.14 Conclusion
7.0 Introduction
7.1 Legal Skills – The Basics
7.2 Legal Research
7.3 Applying the Law Worksheet
7.4 Researching Case Law
7.5 Researching Cases on CanLII
7.6 Legal Research Exercise
7.7 Case Law Worksheet
7.8 Evidence
7.9 Evidence Inventory Worksheet
7.10 Building Your Case
7.11 Case Building Activity
7.12 Case Building Worksheet
7.13 Conclusion
8.0 Introduction
8.1 Legal Writing
8.2 Completing Court Forms
8.3 Court Form Writing Activity
8.4 Affidavits
8.5 Sample Affidavit
8.6 Writing Affidavits
8.7 Formatting Affidavits
8.8 Affidavit Checklist
8.9 Affidavit Activity
8.10 Serving Documents
8.11 Serving Documents Quiz
8.12 Fixing Errors in your Submitted Court Forms
8.13 Conclusion
9.0 Introduction
9.1 Provincial (Family) Court Process
9.2 Early Resolution Steps
9.3 Application about a family law matter
9.4 Other Orders
9.5 PAS and/or Family Justice Counsellor
9.6 Attend a Family Management Conference (FMC)
9.7 Family Management Conference Worksheet
9.8 Attend a Family Settlement Conference (FSC)
9.9 Family Settlement Conference Worksheet
9.10 Attend a Trial Preparation Conference (TPC)
9.11 Trial Preparation Conference Worksheet
9.12 Attend Trial
9.13 Supreme Court Process
9.14 File and Serve
9.15 Attend Judicial Case Conference
9.16 Judicial Case Conference Worksheet
9.17 Attending a Trial Management Conference
9.18 Trial Management Conference Worksheet
9.19 Attending a Judicial Settlement Conference
9.20 Judicial Settlement Conference Worksheet
9.21 Attending Trial
9.22 Discovery
9.23 Examination for Discovery Worksheet
9.24 Interim Applications
9.25 Requesting the Same Judge
9.26 Conclusion
10.0 Introduction
10.1 Evidence: Documents
10.2 Evidence: Witnesses
10.3 Witness Worksheet
10.4 Prepare your Legal Argument
10.5 Opening Statement
10.6 Opening Worksheet
10.7 Testifying in Court
10.8 Testimony Worksheet
10.9 Questioning Witnesses
10.10 Closing Statement
10.11 Closing Worksheet
10.12 Preparing for Trial Exercise
10.13 Presentation Skills
10.14 Going to Court
10.15 Managing the Stress of Trial
10.16 Before Court Checklist
10.17 Conclusion
11.0 Introduction
11.1 Court Order
11.2 Court Order Checklist
11.3 Enforcing Orders and Agreements
11.4 Changing Agreements or Orders
11.5 Conclusion
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1. Getting Started
2. Key Issues
3. Preparing Yourself
4. Getting Help
5. Reaching Agreement
7. Building your case
8. Court Forms
9. Court Process
11. Orders and Agreements

The closing statement is where the meat of your argument will be. You want to show that your facts supported your evidence and the law supports your order. Refer to your Case Building Worksheet from Chapter 7 to help you write your closing statement. It’s helpful to refresh your memory on what the law says, what you want to prove and how you are going to prove it.

The closing argument is not another chance to give evidence. You may only refer to points on which evidence has already been given.

Here are the steps you want to take for your closing:

Summarize the law –Very briefly state the law you are relying on and any case law you are using to support your claim. Highlight the points you are trying to prove off your Case Building Worksheet.
Summarize your evidence and how it relates to the law – Make reference to the evidence you presented to the court such as witness statements or documents that show the points you are trying to prove.
Address any arguments by the other party - If you can show how their points do not apply to you, do so.

Even though you have drafted a closing statement, be flexible. Evidence can arise at court you weren’t expecting, you may need to edit your closing statement as the trial goes on.

Conclude - Restating the order you seek.

It’s a good idea to submit your closing statement in written form. Ask the judge if you would be allowed to submit your written closing statement to them so they can follow along as you present it. A judge doesn’t need to accept your written closing statement, so ask to see if they will. If they do accept it make sure all key elements of your legal argument are included.

Fill in the Closing Statement Worksheet to help you prepare but be sure to fill it in with more detail during your trial.

Ending Strong on Closing Arguments

Closing Arguments are the Mona Lisa’s of Mock Trial. Closing Arguments require you to take down notes and create an argument on the spot using evidence that was admitted during the trial while including your theme and theory. It’s the single most important task that can either make or break your case. It’s the attorney’s only chance to stand before the jury and argue their case theory without having to worry about objections or interference.

Closing argument are the most challenging as you must tie two or more hours of testimony for the most important facts and show the jury that you have proven everything the opening attorney promised. Closing arguments are the time to answer questions that the opening attorney presented in the beginning and leave the jury with a clear, clean cut, painting in their heads.

Focusing on a few solid points will really drive home the jury. Elicit the most important facts that came out on the record. Having good content is not difficult, given the argument is logical. The one thing that separates team is good presentation to great presentation. The jury is most likely paying more attention to the way you move and speak than the actual content. Emotion, conviction, confidence, and passion are the most important factors in swaying a jury in your favor and getting the most points.

Remember Primacy, Recency, and Frequency
Remember Move About The Well

Talk to Your Team

Ask each attorney and each witness what the three most important facts are from his role and use that information to creation three important facts for your speech. Closing Arguments are a summation of all the key facts of your case and it’s important to consult your teammates to learn about the important things they will put in their exams.

Draft First

Always write a draft and have it reviewed by your teammates and coaches. This will help you get the vivid imagery that your closing needs.

Time Your Closing

It’s important to stay under time (If your Mock Trial program has time limits for closings and openings). Don’t go over time or go under time. The time you get (usually 5 minutes) should be more than enough for you to say everything that needs to be said. You don’t want to lose points for going over time. It’s good to trim the useless facts and keep your speech precise.

Rule of Three & Primacy, Recency, Frequency

Remember these rules for everything. Your jury hears things that are First Heard, Recently Heard, and Frequently Heard. It’s also best to keep three important points to talk about in your closing.

Comment on Admitted Facts

If you comment on evidence that was not introduced, it would be considered a mistrial in a real courtroom. In Mock Trial, the jury will just deduct points, or the opposing team may expose your error.

Practice Is Key!

There is nothing better than practice. Practice your speech in front of your teammates and coaches to get feedback from them. Practice your speech in front of other people, as well, to get even more feedback from a different perspective.

Prosecution/Plaintiff ALWAYS speaks last

People always forget this but Prosecution/Plaintiff ALWAYS speaks. It’s because the burden falls on Prosecution/Plaintiff and they will always close last. This provides Prosecution/Plaintiff a rebuttal to rebut opposing counsel’s arguments or flip their theme. When you’re on Prosecution/Plaintiff, listen to the Defense closing and try to flip their speech.

No Objections are Allowed

As always, Objections are NEVER allowed on Openings and Closings.

Silence Speaks Louder than Words

In Public Speaking, the most powerful tool you can use is a pause. By taking healthy pauses between a point, your words will resonate with the Jury and will serve to bring their attention back to you.

Organization

Paragraph one: captivate your audience.

First paragraph should focus on repeating the theme and theory. It should be able to draw the Jury into your side of the case. The paragraph should focus on rehashing the egregious facts in the other side’s case.
Be sure to utilize pauses, voice fluctuation, and tone changes to capture the jury.

Paragraph Two: Burden of Proof

Prosecution/Plaintiff should acknowledge the burden of proof. If you are on Defense, emphasize the burden the other side holds
Burden of Proof differs between Civil and Criminal cases and explain your Burden of Proof.

Paragraph Three, Four, and Five: Walk Through The Facts

Organize the case topically as this is the most persuasive organization style. Similarly, this means you should avoid chronological, witness-by-witness accounts.
Rule of Three & Primacy, Recency, and Frequency. That means, each of these three paragraphs should highlight an important fact that will advance your side’s case and will tell the jury the story of what happened through these paragraphs. In other words, people remember what happens first, what happens last, and what happens often.
Use Exhibits . If a document or photo was admitted that may be useful for your closing, make use of it. In addition, it’s a good idea to hold evidence in front of the jury to visualize your point and to captivate their emotions.
Bury the Bad Facts . If a witness was hammered on cross, try to rehabilitate them during the closing argument by pointing the jury back in the correct direction and reminding them of the important facts.
Attack. If an opposing witness is being paid to testify, or has something to gain, be sure to bring it up in your closing. Likewise, if an opposing witness has a bad past, bring that up.
Comment on Broken Promises. If the opposing side made any promises on opening and they were broken, bring them up and hammer them for it. For instance, pointing out a broken promise is an easy way to damage their credibility.
FLIP THEIR THEME. If there is any way to twist their theme to your favor, and it’s clever and honest, do it. However, if you cannot flip their theme or you feel it’s too weak, it’s probably NOT worth to attempt to flip their theme. Above all, a botched flipped theme won’t go over well with the Jury or the Judge.

Paragraph Six: End Strong

End by leading the jury back to the theme
Sum up your case in one sentence
Make a strong emotional connection with the jury

Differences Between Opening Statements & Closing Arguments

Each party in a jury trial has a right to speak directly to jurors once before and once after the evidence is presented.

Opening Statement

The opening statement at the beginning of the trial is limited to outlining facts. This is each party's opportunity to set the basic scene for the jurors, introduce them to the core dispute(s) in the case, and provide a general road map of how the trial is expected to unfold. Absent strategic reasons not to do so, parties should lay out for the jurors who their witnesses are, how they are related to the parties and to each other, and what each is expected to say on the witness stand. Opening statements include such phrases as, “Ms. Smith will testify under oath that she saw Mr. Johnson do X,” and “The evidence will show that Defendant did not do Y.” Although opening statements should be as persuasive as possible, they should not include arguments. They come at the end of the trial.

Closing Argument

Only after the jury has seen and heard the factual evidence of the case are the parties allowed to try to persuade them about its overall significance. Closing arguments are the opportunity for each party to remind jurors about key evidence presented and to persuade them to adopt an interpretation favorable to their position. At this point, parties are free to use hypothetical analogies to make their points; to comment on the credibility of the witnesses, to discuss how they believe the various pieces of the puzzle fit into a compelling whole, and to advocate why jurors should decide the case in their favor.

Key Difference

There is a critical difference between opening statements and closing arguments. In opening statements, parties are restricted to stating the evidence: (“Witness A will testify that Event X occurred”). In closing arguments, the parties are free to argue the merits: “As we know from Witness A’s compelling testimony, Event X occurred, which clearly established who should be held responsible in this case.”.

DISCLAIMER: These resources are created by the Administrative Office of the U.S. Courts for educational purposes only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on any pending case or legislation.

COMMENTS

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At the end of your Closing Argument, make a clear "ask". Tell the jurors what you want them to do and be crystal clear. For example, "We ask you to find Bill Williams, not guilty of this charged crime.". In keeping with a clear "ask", make sure you explain the Jury Verdict form to the jurors. Tell them specifically what they need to ...
Closing Argument
A closing argument is the final statement an attorney makes to the judge and jury at the conclusion of a civil or criminal trial. The closing argument provides a summary of the case and is ...
PDF Chapter 9 CLOSING ARGUMENT
§ 9.02 EXAMPLE OF A CLOSING ARGUMENT The following example should give you a feeling for the scope and structure of a closing argument. It illustrates most of the points raised in later sections. 2 May it please the court; members of the jury. I have asked my client to leave the courtroom, as I had asked him not to be here during the medical ...
Prosecution closing
The elements of the crime of residential burglary are that the defendant 1) entered or remained unlawfully within the property of another, 2) that property was a dwelling, and 3) the defendant entered with the intent to commit a crime against a person or property therein. So when writing a prosecution closing argument, you need to make certain ...
Closing Statement
Closing Statement. Each side gives a closing statement at the conclusion of the trial, after all evidence has been given. Each lawyer will give a summary of the evidence the judge heard on the key issues, and offer their opinion on the reasons the judge has to find in their favour.
10.10 Closing Statement
Here are the steps you want to take for your closing: Summarize the law -Very briefly state the law you are relying on and any case law you are using to support your claim. Highlight the points you are trying to prove off your Case Building Worksheet. Summarize your evidence and how it relates to the law - Make reference to the evidence you ...
How to Write a Defense Closing Argument for Mock Trial
Burden of Proof. The defendant does not have to prove he is innocent, rather it is the burden of the prosecutor to establish that the defendant is guilty. The government has not met that burden. It is the prosecutor who has all the resources to investigate a case. It is not the job of the defendant to go out and investigate the case.
Ending Strong on Closing Arguments
Closing arguments are the time to answer questions that the opening attorney presented in the beginning and leave the jury with a clear, clean cut, painting in their heads. Focusing on a few solid points will really drive home the jury. Elicit the most important facts that came out on the record. Having good content is not difficult, given the ...
Differences Between Opening Statements & Closing Arguments
There is a critical difference between opening statements and closing arguments. In opening statements, parties are restricted to stating the evidence: ("Witness A will testify that Event X occurred"). In closing arguments, the parties are free to argue the merits: "As we know from Witness A's compelling testimony, Event X occurred ...
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Closing Argument

What to know before drafting a closing

Anatomy of a Closing Argument : The Basics

Tracking the evidence at trial

Going Deeper: Ways to Improve the Closing Argument:

How to improve the substance:

How to improve the performance:

Preparation Sheet

How to Draft a Persuasive Closing Argument in Five Easy Steps

Drafting A Persuasive Closing Argument

The Five Easy Steps

Listen To The Case Carefully

Highlight Supporting Information For Future Reference

Identify Two Or Three Main Points In The Case

Fit The Supporting Information Into Your Outline

Create a Catchy Introduction That Summarizes Your Assessment of the Case

About the Author

Diana Shepherd, CDFA®

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How to Write a Closing Argument

Preparing to Write a Closing Argument

Reviewing Your Case

Attacking the Opposition's Case

Concluding Your Closing Arguments

Expert Q&A

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Short, sweet, and specific: Effective openings and closings in oral argument

Openings: Theme and roadmap—briefly

Closings: Make a compelling point, and tell the court what you want

A Quick Guide to Preparing a Winning Mock Trial Closing Argument

1. Tell Your Team’s Story

b. Second, Add Evidence

i. Consider Using Cross Examinations

2. Explain Why Your Story Is Better Than Your Opponent’s

a. Cast Doubt on Your Opponent’s Case Theory

b. Attack the Reliability of Your Opponent’s Witness(es)

c. Attack the Bias of Your Opponent’s Witness(es)

d. If a Witness Was Impeached, Question Their Credibility

e. Explain why your witnesses are credible and/or unbiased.

Conclusion

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The Beginner’s guide to the closing speech

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Checklist For Closing Argument

Personal preparation

Delivery of your closing argument

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Closing Statement

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Ending Strong on Closing Arguments

Talk to Your Team

Draft First

Time Your Closing

Rule of Three & Primacy, Recency, Frequency

Comment on Admitted Facts

Practice Is Key!

Prosecution/Plaintiff ALWAYS speaks last

No Objections are Allowed

Silence Speaks Louder than Words

Organization

Paragraph Two: Burden of Proof

Paragraph Three, Four, and Five: Walk Through The Facts

Paragraph Six: End Strong

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Differences Between Opening Statements & Closing Arguments

Opening Statement

Closing Argument

Key Difference

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