By Mike A. D’Amico
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:
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:
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:
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.
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!