Bright is the ring of words
when the right man rings them.
— Robert Louis Stevenson
I. INTRODUCTION. Form: Hallmark of the Enduring.
When asked to explain the role that form plays in his compositions, classical guitarist and composer David Leisner once said: “Form is very important to me because I feel that if you hang the content of what you have to say on some kind of form, whether it is an established form like a sonata, or a new form, or a form that you may not quite be able to articulate, but can sense tangibly, then your piece is more enduring.”
Similarly, lawyers can rely upon form to help their arguments endure. After all, a winning argument is one that persists in the minds of the jurors during their deliberations; it is the one that sympathetic jurors repeatedly invoke when other jurors consider the merits of your opponent’s position. By delivering their points in a logical structure, lawyers assist sympathetic jurors by providing them with arguments that are memorable, logical, and easy to articulate.
[Although the scope of this page is limited to the question of constructing sturdy closing arguments, it is reasonable to ask what role the other trial phases play in convincing the jury to decide the case in your client’s favor. An enduring argument, like an enduring building, is constructed of two things: a sound structure and quality raw materials. The raw materials of a trial are the facts. Prior to trial, sit down with the discovery and think about the good facts that you want to talk about in closing. During trial, gather as many of those facts as possible. Of course, bad facts are unavoidable and must be addressed. A well-constructed argument, however, is one that features the good facts and positions the bad facts in places that suggest their unimportance.]Nonetheless, many trial lawyers deliver formless arguments. They fail to understand that, having been steeped in popular entertainments such as television shows and films, jurors come to the courthouse expecting organization. They expect presentations to have a beginning, middle, and end. They expect a logical flow to exist between these sections. They even hope for good art, which means that, by the end of the presentation, they want to be changed in some way. These aspects can only result if the lawyer has given thought beforehand to the arc of the argument. [Note that too much organization can be just as detrimental as too little; there is a difference between an argument that is structured and an argument that is scripted. A scripted argument is worthless because it is unable to accommodate for surprise and restricts spontaneity.]
Lawyers who deliver formless arguments also fail to appreciate such an argument’s perils. For example, by speaking without holding some kind of organizing principle in mind, lawyers risk burying strong arguments among less important ones. Worse, they risk forgetting to make important arguments altogether. Most tragically, they virtually guarantee that their arguments will end unimpressively, rather than with a flourish. If there is one thing that a closing argument should never be, it is forgettable.
Finally, formless arguments simply leave jurors with a bad impression. At best, they suggest that the lawyer is unprepared. At worst, they suggest that the lawyer is lazy. Jurors will immediately appreciate a structured argument as the work of a lawyer who cares about the case and who has devoted a lot of time to its preparation. A lawyer cannot expect a jury to devote more effort to deciding the case than the lawyer did in presenting it.
While the benefits of structured arguments may be obvious, the details of how to use such a structure are not. Many trial lawyers avoid forming arguments because they can not find a framework that will comfortably apply to their cases. The purpose of this article is to suggest a form that provides enough structure to generate logical force, yet remains flexible enough to allow the lawyer to accommodate for any surprises that may arise at trial, and which also allows the lawyer sufficient freedom to infuse the argument with passion and artistry. The proposed form can be divided into four sections: the exposition, development, recapitulation, and coda. These terms, which are derived from the “sonata-allegro” form that was frequently employed by classical composers such as Haydn and Mozart, can serve as useful divisional landmarks in the construction of closing arguments.
[The classical period in music, which can be thought of as spanning from the birth of Haydn in 1732 to the premiere of Beethoven’s Third Symphony in 1805, was characterized by symmetry and logic. Personally, I find much of the music from this period to be predictable and dull. In legal argument, however, symmetry and logic are powerful tools of persuasion.]II. Exposition
In the exposition, the theme is stated. For defense attorneys, the theme is your explanation as to how an innocent person came to be on trial. Sometimes, in the exposition you will be forced to explain your client’s actions: Ladies and gentlemen, Joe only confessed to this crime because he was tricked by the police, (or because he thought it would help his brother’s case, etc.). Other times, your client’s friends are to blame: Ladies and gentlemen, Joe thought that he and Bill were just going to a baseball game. He had no idea that Bill had guns in the car. The specifics will change based on the facts of the case, but the gist is the same: your client is innocent. He is only on trial because somebody else did something wrong.
The exposition should be brief. Again, there are parallels to be drawn with classical music. When Haydn strode the streets of Vienna, there were no sound recording devices. As a result, it was quite possible that a piece of music would only be heard once or twice in a person’s lifetime. In order to make their music memorable, composers sought to write themes that were “catchy,” which is to say that, generally, their themes were easily sung and not very long. Like Haydn, you want your theme to be catchy; you want the jurors to be repeating it in their heads over and over again during deliberation. If you make your theme too long or complicated, it simply will not stick. Keep it simple: Joe did not kill his daughter. He only said that he did to protect his wife, the true killer.
Note that the exposition itself has a structure. The entire thing does not require more than two sentences, the first of which is almost always “Joe is innocent,” although it can also be that Joe is guilty, but of a lesser offense.
By asserting the client’s innocence immediately and openly, the lawyer raises the distasteful prospect of convicting an innocent person. A jury is far more likely to take interest in a defendant’s story if he declares innocence, than they would be if his lawyer merely claims that the prosecution failed to prove guilt.
Follow the fact of your client’s innocence with the theme, i.e. the reason an innocent person has found themselves in the trial chair.
The brevity of the exposition is required by the principles of primacy and recency, which state that the two most memorable moments of an argument are the first words spoken, and the last. Do not squander those critical moments by saying “may it please the court,” or by thanking opposing counsel. Draw the jury into your argument by exposing your theme right away.
[“Exposing” your position like this can also be an effective way of starting your opening statement. These sentences are argument, but most judges will allow attorneys to lay out their themes before strictly enforcing the no argument rule of opening statements. Beginning opening statements and closing arguments in a similar fashion may leave the jury with a sense that the closing argument completes the “promise” of the opening statement.]Finally, transition away from the exposition by giving the jurors a brief tour of your upcoming development: I’m going to explain to you how Manuel Vasquez, the prosecution’s fire expert, ignored accepted scientific standards in arriving at his conclusion. In fact, I will show you how every factor that Vasquez says indicates arson also has another, innocent, explanation. I’m going to remind you that, while Vasquez is allowed to make those types of assumptions against Cameron, you are not. As he sits there right now, Cameron is presumed to be innocent of these charges, and when I’m done, you will see that Cameron is innocent.”
[Obviously, you will not be allowed to argue these points unless you get certain facts into evidence at trial. This is why most experienced trial attorneys say that planning your closing argument is the first thing that you should do when preparing for trial. By planning your closing at the outset, you can determine what facts you want to bring out at trial, and which witnesses you will need to call.]By telegraphing your intentions to the jury in this way, you build the jury’s confidence by showing them that you know your case and you have a plan. You are also alerting them that the exposition is coming to an end and the development is about to begin, further exploiting the principles of primacy and recency.
III. Development
The development is the heart of your argument. This is where, using the facts that you have gathered throughout the trial, you tell the story of your client’s innocence. By presenting the jurors with the facts that support your theme, you lay out your theory as to how your client came to be falsely accused.
The development should be structured into small, intuitive sections with lots of opportunities for applying the principles of primacy and recency. By signaling to the jury every time you enter a new segment of the development, for example by saying something like, “now I’m going to explain why contamination is virtually guaranteed when lab technicians fail to wear gloves,” you alert the jury that something new is coming, and maintain their interest.
Also, remember that transitions need not always be verbal. During closing argument, the courtroom is your realm. Use it. Simply changing your position in the courtroom and speaking to the jury from another angle can be a very effective way of alerting the jury that you are going to begin speaking on a new topic.
With regard to placement of your points within the development, take advantage of the fact that people generally pay less attention to topics mentioned in the middle of a section. Do not avoid bad facts. Instead, address them in the dead zones of your argument. By doing so, you avoid the appearance that you are afraid of the bad facts, yet you still manage to deflate their importance.
Finally, keep in mind the principle of digestibility. Present the points of your argument in small segments that will be easily understood. By breaking points into small portions, much as one would in a cross examination, even complicated financial or scientific testimony can be explained.
Here is what a development, along with the other sections of the argument, looks like in the abstract:
Exposition
Development
– Good Point I (with supporting facts)
– Bad Point I (with minimizing facts)
– Bad Point II (with minimizing facts)
– Good Point I (with supporting facts)
Recapitulation
Coda
Here is how this might work in an actual trial. Imagine that, in a drug delivery case, you were able to establish that Joe did not have a valid driver’s license. You also established that Joe has a serious drug addiction. The prosecution was able to establish that Joe’s fingerprints were found on a collection of individually packaged drugs, as well as a scale of the type commonly used by drug dealers to measure drugs.
Exposition: Joe is not a drug dealer. He uses drugs, but he has never dealt them. Even though the drugs found in his car were packaged for individual sale, they were all for his personal use.
Development, good point I: Joe doesn’t have a valid driver’s license. This means that, every time Joe drives, he runs the risk of getting arrested. Therefore, it’s in Joe’s interest to drive as little as possible. But, Joe is a drug addict. So, how is he to minimize his risk of getting pulled over, but still get his drugs? He buys in bulk.
Development, Bad Point I: Now, the State has made a big deal out of the fact that the bags were individually packaged. But folks, if they’re sold that way, they’re also bought that way. Think about it. If the drug dealer has ten one-gram bags, and Joe bought ten grams for his own personal use, then Joe would be in possession of ten individual bags.
Development, Bad Point II: Which brings us to the scale. Yes, drug dealers use scales to make sure that they do not give away too much product, but smart shoppers, like Joe, also use scales to make sure that they’re getting enough. In fact, use of a scale is especially important for a buyer who buys in bulk because such a shopper risks losing a lot of money just from one bad purchase.
Development, Good Point II: And Joe doesn’t have money to lose. You heard about his addiction. You heard how his addiction is so bad that, sometimes, he buys drugs instead of food. Yes, the police found a lot of drugs here, but Joe has a big problem. He buys a lot of drugs at once because, if he didn’t, he’d have to go out there every day, and risk getting caught.
Recapitulation
Coda
Some cases will have more bad facts than others. This does not change the overall structure. Highlight the good facts and downplay, but still address, the bad ones.
Finally, although it will often make the most sense to develop your points in chronological order, this will not always be the case. Sometimes, you may want to develop one witness at a time, pulling out points to support or undermine their credibility, as you choose. Other times, you will want to do both, moving chronologically through the facts and then pausing to develop certain important events or witnesses along the way. It is not imperative that you memorize the precise order of the development beforehand. All you need to do is keep the three or four critical points that need to be made in mind, and then rely upon your own sense of logic to guide you through the development of those points.
IV. Recapitulation
Like the exposition, the recapitulation should be brief. Here, the theme is re-stated, reminding the jurors of the conclusion that they are supposed to draw from all of the arguments presented in the development. The recapitulation also serves as a transition from the development, where the appeal is to the jury’s analytical processes, to the coda, where the appeal is to the jury’s emotions. The task, therefore, is to change the tone of the argument from a factual inquiry to something more somber. The jurors should understand that this is a real trial, with real consequences.
An example might look like this: That is how you know that Joe was telling the truth when he said that he’s never sold drugs in his life. And that distinction ladies and gentlemen, the distinction between whether Joe is a drug user, or a drug dealer, is important. That’s what you’re here to decide.
I understand that you may not approve of Joe’s life choices. I understand that you may not want your son or daughter to be friends with Joe, but those are not the questions that you are being called upon to answer today.
You have an obligation as jurors. I am reminding you of that. I am going to talk to you about that now. I am going to remind you of the principles that you swore to uphold.
V. Coda
The coda, which is Italian for “tail,” is the final, and most fun, part of the argument. This is where your skills as an advocate can really shine.
Charles Whitebread once said that our clients are entitled to more than our mere knowledge of the law. He said that they are entitled to “the richness of our experiences.” That richness includes all of the books that we have ever read and all of the films that we have ever seen. It includes our moments of heartbreak, and our moments of jubilation. It includes whatever wisdom we may have managed to gather along the paths of our lives. In the coda, we meet our obligation to bring our experiences to bear in service to our clients. The preceding sections of the argument will necessarily be rooted in the specifics of the particular case. By the time the coda is reached, however, the jurors’ factual questions should be resolved. The coda is the time to impress upon the jurors the awesome responsibility that they have as they sit in judgment of a fellow human being. When it is over, the specter of convicting an innocent person should weigh heavily upon their shoulders.
Unlike the prior sections of the argument, much of what is going to be said in the Coda should be rehearsed ahead of time. Even so, do not use notes; they will prevent you from engaging the jury with your eyes and voice.
Rehearsing the coda ahead of time will lend confidence to your entire argument. You will know that, even if you do have some kind of disastrous lapse, the ending will still be strong.
Finally, there is no incorrect way to perform in the coda. Often, I relay a quote or story that I feel illustrates a universal truth that applies to the case. Other lawyers, however, loathe this idea.
With regard to delivery, some lawyers speak with an impassioned impulsivity, while others unfold their positions with a calm and inevitable logic. The only rule is to be yourself. Juries hate phonies.
VI. Conclusion
Form matters. Even if they reject the method proposed here, it is hoped that this article will convince lawyers to devote at least some thought to form as they construct their closing arguments. Aside from being authentic, structuring an argument is perhaps the single most important thing a lawyer can do to ensure that their position endures the crucible of the jury room.
APPENDIX: A Sampling of Final Flourishes
Cicero: But enough. Tears choke my voice; and my client does not want a tearful defense. What I am asking you gentlemen, and asking you urgently, is that when you come to cast your votes, you should be brave enough to act as you really think is right. If you do, believe me, your fearlessness, impartiality, and integrity will meet with sincere approval from the person who, in picking the judges, has permitted his choice to fall upon men who are conspicuous for their loyalty and their wisdom and their courage.
Johnnie Cochran: If we as the people don’t continue to hold a mirror up to the face of America and say this is what you promised, this is what you delivered, if you don’t speak out, if you don’t stand up, if you didn’t do what’s right, this kind of [police mis-] conduct will continue on forever and we will never have an ideal society, one that lives out the true meaning of the creed of the Constitution or of life, liberty and justice for all.
Clarence Darrow: There are people who would destroy me. There are people who would lift up their hands to crush me down. I have enemies powerful and strong. There are honest men who misunderstand me and doubt me, and still I have lived a long time on earth, and I have friends – I have friends in my old home who have gathered around to tell you as best they could of the life I have lived. I have friends who have come to me here to help me in my sore distress. I have friends throughout the length and breadth of the land, and these are the poor and the weak and the helpless, to whose cause I have given voice. If you should convict me, there will be people to applaud the act. But if in your judgment and your wisdom and your humanity, you believe me innocent, and return a verdict of not guilty in this case, I know that from thousands and from tens of thousands and yea, perhaps of the weak and the poor and the helpless throughout the world, will come thanks to this jury for saving my liberty and my name.
Sir Edward Marshall Hall: I have nothing more to say than to remind you that the responsibility is yours now, and not mine. If you are satisfied beyond all reasonable doubt that the man standing there murdered Emily Dimmock, though it breaks your heart to do it, find him guilty and send him to the gallows. But, if, under guidance of a greater than any earthly power, making up your minds for yourselves upon this matter, if you feel you cannot truthfully and consciously say you are satisfied that the prosecution have proved that this man is guilty, then I say it is your duty, as it must be your pleasure, to say that Robert Wood did not murder Emily Dimmock.
William Kunstler: I think if this case does nothing else, perhaps it will bring into focus that again we are in that moment of history when a courtroom becomes the proving ground of whether we do live free and whether we do die free. You are in that position now. Suddenly all importance has shifted to you – shifted to you as I guess in the last analysis it should go, and it is really your responsibility, I think, to see that men remain able to think, to speak boldly and unafraid, to be masters of their souls, and to live and die free. And perhaps if you do what is right, perhaps Allen Ginsberg will never have to write again as he did in “Howl,” “I saw the best minds of my generation destroyed by madness,” perhaps Judy Collins will never have to stand in any courtroom again and say as she did, “When will they ever learn? When will they ever learn?”
Thomas Mauet: This case will be over soon. I have tried my best to show you what really happened on Bloomingdale Avenue during the afternoon of April 25, 1995. I have tried my best, but my job is done. The case now rests in your hands. When this case is over, you, I, and probably some others, will from time to time think back and reflect on this case. It may be in the morning during a spare moment. This case may suddenly come back to you at night when you are trying to fall asleep. Wherever you think of this case, you are probably going to ask one thing: Did I do Sylvester Strong justice? If you have doubts about this case, have them now. For him, there is no tomorrow, no second chance. Ask yourself those hard questions now, because for him tomorrow is too late. If during your deliberations you keep that in mind, we are sure that you will return a verdict of not guilty.
[Note: A version of this article appeared in the July 2010 issue of The Champion.]