CLOSING ARGUMENT

The final factual and legal argument made by each attorney on all sides of a case in a trial prior to a verdict or judgment.

Just as trials begin with attorneys making statements about the case, they end with a direct address to the judge or jury. The opening statement lays out what each side intends to prove; the closing argument, which is generally more forceful, has broader ambitions. By recapitulating the facts, evidence, and testimony presented during the trial, the closing argument tries to deal a fatal blow to the opposing case while definitively proving the attorney's own. Trial lawyers put great emphasis on their closing argument, or summation, because it is their last chance to be persuasive before the judge or jury begins deliberations. An art form in itself, the closing argument often brings forth a trial's most dramatic speech, marked by criticism, appeals to emotion and reason, and florid rhetoric.

Tradition dictates only a few rules for closing arguments. Generally, in civil actions, the plaintiff's attorney speaks first and the defendant's counsel immediately follows. In criminal trials, the prosecution gives its summation, followed by that of the defense. In addition, the plaintiff's counsel or the prosecutor is allowed time for a rebuttal argument. The reason for this additional time is that the burden of proof is on the plaintiff or prosecution; thus, the plaintiff's attorney or the prosecutor is allowed to reply to the defense's closing argument. Attorneys see the rebuttal as a useful weapon, as it is the last word to be heard from counsel in a case.

Closing arguments and rebuttals vary in duration. Hollywood court dramas often make the closing argument a brief, terse statement; in real life, it can go on much longer. Summations lasting an hour or more are typical. Depending on the complexity of a case, the entire summation period may last several days, particularly in jury trials where numerous witnesses and difficult scientific evidence have been presented. However, most attorneys avoid droning on, for fear of losing the jury's attention or possibly incurring its antagonism. Ultimately, the length of a closing argument is left to the discretion of the judge, who may impose a time limit. Judges can also sustain objections by the opposing side if the scope of the rebuttal is deemed too far-reaching.

Throughout history, rhetoric has assumed a high place in summations. Orators, including attorneys, have always known that style in a speech can be as persuasive as substance. The colonial prosecutor Josiah Quincy peppered his closing arguments with rich flourishes of indignation. "Does the law allow one member of the community to behave in this manner towards his fellow citizens," Quincy thundered during the trial of British soldiers accused of murdering protesters in the boston massacre of 1770, "and then bid the injured party be calm and moderate?" He went on to quote Shakespeare. But he met his match in attorney john adams, whose summation helped win the soldiers' acquittal. Adams argued that any soldier "would be warranted in depriving those of life who were endeavoring to deprive him of his. That is a point I would not give up for my right hand, nay, for my life."

In an age when jury consultants warn about short attention spans, contemporary attorneys shy away from arch rhetoric. Most lawyers want to reach the jury's emotions through plain, but pointed, speech. Rhetorical questions are still used powerfully; quotations from literature are featured to a somewhat lesser extent. Charts, graphs, and even photographs play a large role in keeping juries focused. Both the prosecution and the defense calculatedly used props to underscore their arguments about brothers Erik Menendez and Lyle Menendez, who were tried in California in late 1993 for the murder of their parents. Arguing that the murders were intentional, Prosecutor Pamela Bozanich displayed a photograph of the bloodied corpses. Defense Attorney Jill Lansing countered by tacking up a nude photograph of Lyle, reminding the jury that her clients claimed to have been sexually abused and saying, "You need to decide what was going on in Erik and Lyle Menendez's mind that night before you decide what kind of crime was committed." The first trial ended in a mistrial. The brothers were retried and found guilty of first degree murder on March 21, 1996.

further readings

Alexander, Donald G. 2002. "Preparing for More Effective Closing Argument. Maine Bar Journal 17 (summer): 194–7.

Baldwin, Scott, and Francis H. Hare Jr. 1997. Scott Baldwin on Jury Arguments. New York: Wiley Law.

Gonzalez, Ervin A. 2002. "Ten Tips for Closing Argument." The Practical Litigator 13 (March): 15–29.

Kunstler, William M. 1962. The Case for Courage. New York: Morrow.

Lief, Michael S., H. Mitchell Caldwell, and Benjamin Bycel. 1998. Ladies and Gentlemen of the Jury: Greatest Closing Arguments in Modern Law. New York: Scribner.

Mauet, Thomas A. 1980. Fundamentals of Trial Techniques. Boston: Little, Brown.

McElhaney, James W. 2002. "Close with a Big Finish." ABA Journal 88 (November): 56.