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Closing Argument and Requests to Charge

By Mike A. D'Amico
January 2005

I have found that most importantly to closing argument, as with the rest of trial, is to forget that you are a lawyer. This of course does not mean that you should ignore the rules of law or fail to remember all necessary steps to legally protect your client's interest at trial and for any potential appeal (which you must always assume is coming after a good verdict). What I mean is that you must place the legalese in the background of your mind where it can be accessed when necessary, but in the foreground, in front of the jury, you must be yourself, that is the person you were before you went to law school, not your lawyering self. This will allow you to relate to the jury as you should, the same way you speak and relate to your casual acquaintances and friends. I believe that this makes you real, boosts your credibility and shows that you are not trying to trick the jury for the benefit of your client as they expect you would from popular television and movie theatrics.
The goal of closing argument is to get the jury to believe you and to do this you must be credible. Here are a few suggestions that I live by:

  1. Never exaggerate or distort the evidence that has been presented. In other words fairly discuss the evidence as it would be seen from an unbiased perspective. If you try to twist, overstate or understate the evidence you will lose credibility because the jury will know that you are trying to trick them. At trial, as with life outside the courtroom, things are either true or false.

    Avoid drama. In a case that appeals to drama, drama will exist without you creating it. I believe misplaced drama hurts your credibility and appears silly.

  2. Help the jury with their task of deliberation. How? By putting yourself in their shoes and figuring out what you would want to know and understand for a job you have never done. For instance:
    1. Tell them the key points of law that they need to apply. Be selective and only deal with the law that is critical to your claim. For example, in a fall on ice that occurred at a condominium complex, I discussed the statutory law that obligated the condominium association to maintain common walkways and parking areas. Use the words that the judge will use which you most often will know from the charge conference. In the condo case I read the statute and then explained it in my own words. You have to teach the law to the jury because it is likely that the judge's charge will not go into any detailed explanation in a way that most jurors will fully grasp and understand without your help.
    2. Show them the key exhibits which they will be reviewing and handling in the jury room. For example, many jurors have never seen a medical record. Tell them what it is, why it is kept and how it is usually laid out. You don't need to discuss all the exhibits but you should explain the ones that are key to a good verdict for your client.
    3. Explain how they would go about calculating damages. For past economic, I have generally introduced a summary exhibit which totals the medical bills and wage loss. I show this to the jury and tell that this is one component of the economic loss number on the verdict form. I also explain the future medical costs and wage loss based on the medical testimony Often I will show these numbers on a flip chart which I try to prepare in advance. I will then explain that the economic loss on the verdict form is the total of all these numbers.

      Noneconomic loss is usually the larger component of a good verdict and I try to humanize this loss. You have to get them away from the popular cynicism of "pain and suffering" damages, i.e. that this is the legal lotto. In reality of course it is not. No one wants to be injured and the difficulties which an injury causes are real. Your job is to get them to apply in your case what they already know from their knowledge of real life. I have attached an excerpt of one of my closing arguments as it relates to noneconomic loss.

    4. Explain that medical insurance, disability insurance and worker compensation insurance cannot be considered or deducted by them; and that to do so would be a double deduction because it is the judge's responsibility to consider these payments at a separate hearing after their verdict. I have almost always been successful getting a charge on this and then explaining the charge that they will hear from the judge. Attached is my usual request on this issue and a transcript excerpt of the charge as given. I believe that failure to explain this can result in the jury reducing their verdict for what they believe your client may have received and which the jury may mistakenly believe does not have to be paid back.
    5. Show and read key excerpts of the trial transcript that you will have necessarily requested from the court reporter in advance. This will help the jury remember and consider key points that may have been presented days or weeks earlier. And you avoid any concern that they think you may be puffing or trying to trick them because the transcript is seen as what really was said. These can be excerpts of opposing counsel's opening where he has overstated his position and the evidence when fairly viewed shows he was exaggerating, or worse. Or they can be key excerpts of witness testimony that you believe are critical keys to winning liability or maximizing damages. Be selective.
    6. Explain the verdict form. Show it to them. Tell them that it will include two separate categories for economic and noneconomic damages; and explain carefully and repeatedly that these categories are for the past and the future.
    7. Explain any jury interrogatories that you have decided are important for them to answer. These would have been agreed upon by the judge in advance. Show them to them and explain to them the answers that you believe the evidence shows. Of course be sure that before you submit the interrogatories to the judge for consideration that the answers, when fairly considered, are in your client's favor.

    Being yourself and being credible are what I believe are the two key ingredients to a successful outcome, and a good verdict; but I have a few other helpful hints:

    1. Figure out one or two important themes. I try to choose themes that are based on popular beliefs like truckers drive crazy. These themes are probably going to be themes that you have been working on through voire dire and trial but sometimes the themes can change depending on how the evidence went in at trial and what you believe hit the jury the hardest.
    2. Use blow-ups as necessary. Be selective. I have found that blowing up key medical records, key photos or even the verdict form can be helpful in guiding the jury through their deliberations.
    3. Use a flip chart. I have used a flip chart to summarize key testimony; to show damage calculations or to emphasize key points of law. Try to prepare this in advance so that you save time in front of the jury as well as for your closing.
    4. Don't object to opposing counsel's closing in the presence of the jury unless it is absolutely necessary and you are confident that the judge will sustain your objection.
    5. Take notes during the trial for key points that you want to discuss at closing and refer to them when preparing your closing.
    6. Do not read a closing argument. Doing so looks fake. You don't read your conversations with your friends and you shouldn't read to the jury.
    7. Be time sensitive. The jurors don't want to be there. They want to do their job, do it well but mostly they want to leave.

Having summarized what I believe are the most important practical trial tips for closing argument, the following is brief mention of the significant law regarding closing arguments:

  1. Practice Book section 15-5 allows counsel for the plaintiff to argue first as well as rebut the argument of the defense.
  2. Practice Book section 15-7 allows one (1) hour for closing arguments but gives the trial judge discretion to lengthen this time in an appropriate case. My experience is that an appropriate case is rare and generally involves multiple parties; lengthy trials; large damage risks or complex evidence. As a practical matter you are not going to want to argue for more than one hour at the risk of losing the jury; in other words simplify and shorten your argument.
  3. Practice Book section 16-19 allows counsel to argue an amount of damages to the jury either as a lump sum or by some mathematical formula. In all larger damage cases you will want to ague money. Use your discretion in smaller damage cases if you are concerned about offending the jury. I have opted in smaller cases to argue the economic damages and leave the noneconomic to the jury's judgement but discussing factors they should consider in their calculation of noneconomic damages.

    Be mindful that the Court will want to know ahead of time whether a monetary argument will be made and most judges will insist that it be made in the initial closing argument, not any rebuttal. Also be mindful that the Court will tell the jury that your argument as to money is only argument and that they are not bound in any way by it.; therefore it is smart to tell the jury that your explanation of damages is simply one way they can calculate the losses and it is designed only as a guiding hand to help them in their job; but be clear that it is one fair method for them to use. I like to provide them with several methods so that I don't seem too strong on any one. This is my acknowledgment that the calculation is not an exact science; that reasonable minds can differ and that their job is a hard one.

  4. You are not permitted to ask the jury to put themselves in the shoes of your client and consider damages accordingly. This is sometimes referred to as the "Golden Rule" argument. There are permissible ways to avoid this appeal and yet have the jury imagine what it would be like to be a person in similar shoes as your client. One way I have used, as well as others, has been to suggest that the jury think of a person with a job whose duties it was it suffer the injuries of your client for pay; and then ask how much should this job pay?
  5. You are generally not permitted to ask the jury to send a message with its verdict unless of course punitive or statutory authority permits this. You should therefore be alert for defense counsel appealing to a jury's belief that there are too many lawsuits; or that their insurance rates will rise; or that people are trying to win the lotto with lawsuits; or that people always sue for pain and suffering; or that low speed/minimal damage claims are always shady; or similar appeals to bias in general as opposed to limiting argument to the facts of the case on trial.
  6. You may argue reasonable inferences to be drawn from evidence presented; comment on the factors which should be considered by the jury when deciding if a witness is credible; and generally argue zealously for your client within a generous latitude. Some supportive cases that I have been referred to are: State v. Kinsey, 173 Conn. 344, 348(1997);Skizypiec v. Noonan, 228 Conn. 1, 16(1993); and State v. Marra, 222 Conn. 506, 533-34(1992).

REQUESTS TO CHARGE:

You can expect that the trial judge will have boilerplate charges on the repeat issues in most cases. Some common recurring issues are the credibility of witnesses; the burden of proof; a general explanation of negligence; circumstantial evidence; reasonable inferences; expert testimony and the like. I seldom, if ever, submit requests to charge on these standard issues and most judges are not interested and will not discuss them in the charge conference. Of course if you have never heard this judge's charge on one of these common issues that you think might be of significance to your case, it is appropriate to ask the judge to read that portion of the charge to you in the charge conference and most will. If you know a lawyer that has tried a similar jury case before this judge prior, it can be helpful to get the transcript of the charge if the lawyer has it, or ask the court reporter to transcribe it.

You should generally reserve your requests to charge on the few most significant legal issues in your case. And then you should be sure that you have researched each issue thoroughly and up to date. Tell the judge about all the law, favorable and unfavorable. You don't want to create an issue for appeal; and you are going to have to deal with this judge in the future. Copy the relevant cases and statutes and be sure to have an extra copy for the judge and opposing counsel so that the charge conference can flow smoothly and efficiently.

Your written requests to charge on these carefully selected important issues properly preserves your rights on appeal(Practice Book section 16-20); and in fairness gives the judge the opportunity to discuss with you and opposing counsel the legal issues that are believed to be particular and most important to the case; and by doing so minimizes the risk of appeal. Further, it gives you the opportunity to shape the charge on this issue which is what the jury is bound to and will most often follow.

There are some legal issues which require a written request to charge. These are supervening negligence; superseding cause; intervening cause; assumption of risk; or any statutory provision. Practice Book section 16-21. Since the recent Connecticut Supreme Court decision of Barry v. Quality Steel Products, Inc., 263 Conn. 424(2003) abolished the doctrines of superseding cause and intervening cause as subsumed within the charge on proximate cause; and since the doctrine of assumption of risk was abolished in negligence actions by C.G.S. 52-572h, it seems that in most cases the only required written request to charge deals with relevant statutes.

Requests to charge are required to be filed prior to closing argument and may be amended by right at any time prior to the charge conference. Practice Book sections 16-22. Each request should be in a separate numbered paragraph; should clearly set forth the proposition of law; the facts to which it applies; and the legal authority upon which it is based. Practice Book section 16-23.

If you believe that a charge was incorrect, an exception should be taken after the charge and outside the presence of the jury. This will preserve your rights on appeal; and give the judge a fair chance to correct any mistakes so that your client can get a fair trial and hopefully avoid an appeal.

There are some cases in which jury interrogatories may be appropriate. If you choose to submit jury interrogatories they must be filled prior to closing arguments and should be filed prior to the charge conference so they can be fully discussed. An example of jury interrogatories I have used in a case involving drinking and driving are attached. I believed it was necessary to draw the jury's attention to statutory multiple damages and I needed a finding of intoxication to avoid any potential of bankruptcy discharge by the defendant. Exercise the right to submit jury interrogatories carefully and be sure that the questions asked are going to be answered in your favor; or that they must be submitted because you feel it is the best way to preserve your rights on appeal.

CONCLUSION:

Although this is not an exhaustive summary on the law relating to closing arguments and requests to charge, it does highlight the key legal and practical points which I believe lead to successful verdicts. Good luck!