by: Dr. Ken Broda-Bahm
The common wisdom is that closing argument it the time to, well, present arguments. However, a sensitivity to your audience and to what jurors are trying to do during your closing argument, suggests that straightforward argument may not be the best way to help jurors feel like they’re 1.) coming to their own conclusions (which they desperately want to do), and 2.) able to convince opposing jurors during deliberations to come around to your favored verdict (which you desperately need them to do). There is an alternate perspective, one that is based on jurors’ tendency to think in terms of stories, that arranges just the right pieces of the jurors’ trial memory, helping jurors arrive at and defend their own conclusions, while making sure that those are your conclusions as well.
That alternative is substantially at odds with the traditions of closing that you may have learned in law school. The common view is that closing argument is the time to put it together for the jury, and – now that the rules finally permit it – to argue, argue, argue. The thinking is that after they’ve heard the evidence, jurors have all the pieces to the puzzle, but it is up to you, the smart and knowledgeable attorney, to arrange those pieces just right so they come out supporting your case. But the logic of that approach can produce a scenario where you are arguing at the jurors instead of reasoning with them.
There are two reasons why a traditional reasons-to-conclusions approach is not the best approach for the unique needs of closing argument: First, the overt logical approach is burdened by jurors’ distrust of the source. An approach that goes like so, “You should find my client not liable because of this… and this… and this!” can easily be met with skepticism, or what the psychologists call “cognitive resistance.” That is, for each carefully buttressed conclusion that you proudly present to the jury, the skeptics on the jury will just be searching their minds for counter-arguments on each. And bear in mind that most members of the jury are skeptical of you, if not your client, if only because you are a professional persuader. The reason for this skepticism is that jurors are trying very, very hard not to be led. Even as they might wriggle like a hooked fish during voir dire, once jurors are selected for the jury, it hits them that this is quite possibly the most important decision effecting people other than themselves that they’ve ever made. In conversations with many jurors following their service, it is clear that most respond by trying to rise to the occasion, and that means trying to come to a decision that is truly independent and unbiased. They are well aware that the advocates in court are arguing just for their own side. That means that the resistance to persuasion that is observed in almost any context is especially high in a courtroom filled with paid advocates. Jurors will (hopefully) listen to you, but they never fully trust your conclusions because they understand that you have a job to do.
A second reason that the straightforward argumentative approach isn’t best for closing is that the way lawyers tend to reason can differ markedly with the average juror’s process. Think about it: if law school did anything (other than create debt) it inculcated in you some habits of mind that set you apart from the rest of the population. Lawyers tend to think syllogistically (e.g., If A is true, and B is true, then C must be true), and they tend to think in layers – you need only look at the structure of the average legal brief to see the lawyer’s preference for conclusions nested within other conclusions nested within an overall thesis. The average juror, in contrast, will reason more organically. Instead of starting with the logic in order to assess which version of events is more likely, the juror will generally decide “what happened” first, and then develop their reasons from that. In other words, the story leads and the reasons follow.
So if a straightforward “here is why you should side with my client” approach doesn’t mesh so well with jurors’ preferences, what is the alternative? The alternative is to rely on jurors’ tendency to form their own stories and prioritize their own recollections from trial. You should conduct your closing like a “symphony of memories.” Yes, I admit it, that expression is a little flowery, but the meaning behind the metaphor makes it worth it. First, the memories. As Jim McElhaney has written, it is all about what the jurors remember. As of closing, they aren’t considering anything fresh, but are instead being called upon to remember the best moments from trial that come together to tell a story favoring your side of the case. And the symphony? Well, what a symphony conductor does is balance out the sounds to create a coherent whole: playing up some, and playing down others. Your jurors will remember both the good and the bad from your case, but your closing should encourage them to prioritize the best, and to put the worst in the least harmful context.
To set the stage for this memory-driven approach to closing, I recently sat through a long trial. Every day, I watched the jurors struggle to absorb what they were hearing, and more importantly, I kept careful notes on the key “memorable moments” from each witness. There would be only four or five points per witness – even witnesses who had been on the stand for quite some time. It may be disheartening to realize that a twenty page examination outline and five hours of testimony will boil down to, in the jurors’ memory, at most four or five points. However, when I talked to the jurors at the end of that trial, it confirmed for me that no juror had either comprehensive memory or notes on the witnesses. What they did have is a handful of “memorable moments” from each witness. As I attended trial, and tried to see the evidence as the jury saw it, my accumulated list of those memorable moments then became the basis for closing argument. Instead of a reasons-to-conclusion approach, my recommendations centered around a questions-to-memories approach. Something like this:
…The first question that you will face is this: did my client exercise reasonable care? Where will you look for the facts that answer that question? Well, you will recall the testimony of John Smith, particularly his description of …. And you will remember the emails that were on this screen, that we all reviewed when Dr. Jones’ was on the stand…When you put all of that together, it is clear: the care wasn’t just ‘reasonable,’ it was comprehensive.
The argument is still there, but the emphasis is on teaching rather than preaching, and on building from what jurors are likely to remember. Instead of beginning with the forceful conclusion and then the evidence that supports it, begin with the questions jurors will need to answer, and then invoke their recall of the best information that leads them to your conclusion. This implicitly says to the jurors, “I know that you are going to answer this question based on your own memories, and not just accept my answers, and I respect your role as the fact-finder… but let me help you remember the best.”