Toward the end of a grueling, contentious, four-month-long insurance coverage trial, I was summoned to the courtroom by the trial team. They were in the midst of a conference with the judge and the other side, addressing the logistics of closings.
“The other side wants to close for an entire day. Should we give it to them?” I was asked.
My reply: “Give them two days.”
If an attorney thinks that after sitting in an uncomfortable chair listening to dozens of witnesses, and having already developed judgments and opinions about the case, jurors want to listen to him for two days, or even a long two hours, he might want to think again.
What Jurors Want to Hear in Closing Arguments
Unfortunately, throughout history the closing argument has been glamorized, heralded, glorified. There are books with collections of the most brilliant closings in American jurisprudential history. Does anyone want to bet that I could dial up Johnnie Cochran’s “If it doesn’t fit, you must acquit” closing on the internet in less than five seconds?
As a result, most lawyers go into the closing argument believing they have to come up with something brilliant, something moving, something of great weight and import to carry the day for their clients.
The truth is, you really don’t have to.
By the time you get to closing arguments, most of the jurors on the panel have already made up their minds about the case. Research supports that.
But if jurors have already made up their minds, what do they want to hear in your closing argument? Not much – except one thing.
They want to know what happens next.
Often jurors are confused about what their job is, and the jury instructions and the verdict form – and the frequent disconnect between the two – don’t help clarify their task. They want to know what the instructions mean, how the questions on the verdict form tie to the evidence they’ve just been sitting there observing, how to deliberate. In short, they want you to tell them what you want them to do once they exit the courtroom and gather in the jury room.
The True Purpose of Closing Arguments
The real task of persuasion takes place in the jury room. If a jury enters deliberations split, and they have to get to unanimous, someone in there has to persuade someone else. And it won’t be you because you won’t be in there with them. So in order to facilitate that process, keep in mind the practical purpose of a closing argument:
- Explain jurors’ job going forward and help them through that process.
- The instructions
- The verdict form
- Anticipate the arguments of opposing jurors and arm your favorable jurors with the rhetorical ammunition they’ll need to persuade jurors who don’t agree with your case.
- Persuade the “fence-sitters”
That’s Great. Now, How Long Should a Closing Argument Last?
The answer is, as short as you can make it. Most lawyers make what should be the secondary purpose of closing – persuading the fence-sitters – into the primary purpose. How many times have you or someone on your team said, “We’ll save that for closing,” or “We’ll bring that all together in closing”? Most likely, you’re too late. Most of the jurors have made up their minds, and when it comes to trying to persuade, I recall the words of an old mentor who used to say, “There are damn few conversions after 25 minutes.” Most of your time should be spent helping the jurors look ahead to the job they have to do, and helping them understand how to do it. So when you’re thinking about how long that closing will be, instead think, “How long will I need to make my key points and help the jurors get ready to deliberate?” Chances are, that time is a lot less than you originally thought it might be.
By: Robert Gerchen – Senior Consultant