The temptation of rebuttal is to make absolutely positively sure the jury is told the right version of the case. To have the last word and correct the defense. But the jury wants to get going. They are ready to start deliberation. They’ve listened to the lawyers for long enough. They don’t want to hear a rehash of what they already have been told.
Here are some of the mistakes lawyers make in rebuttal.
- Take notes of everything the defense is saying. If you have someone to help you, fine. But if you are taking verbatim notes, you are missing the bigger picture of what is going on in the courtroom. How is the jury reacting. Do they look happy and pleased with the defense. Are they withdrawn. Plus what are you going to do with all your notes. You don’t have time to analyze them. As soon as closing is done, you are going to have to make your rebuttal.
- Act busy and disinterested during the defense closing. Perhaps you are whispering with your co-counsel or client. You rattle papers or start packing up the files. The jurors are fine with a battle, but they don’t want you to be rude and disrespectful. Plus it isn’t fair – they have to quietly sit there. They expect you to do the same.
- Use a line item approach. You address each ridiculous, rude or incorrect statement by the defense. You restate the case facts to reiterate that you are on the right side. By now the jurors have heard it from plaintiff’s side in opening, during testimony, and during closing. Hearing it for the fourth time isn’t going to make a difference. Will this redundancy hurt the case? Perhaps not. But do you want to the jury to walk into the jury room thinking how boring and repetitive you were? Not exactly a big positive motivator.
- Attack the defense lawyer personally. Yes, it is hard to resist the urge especially if they are cruel or lie. And there are always exceptions. But generally, ad hominem attacks will only make the jury disgusted with you.
- Spend too much time. The jurors have heard closing and have just about made up their minds. Unless you are a great magician – there’s not much you can do to change them. The last thing you want to do is drone on in a rambling unfocused manner.
Really, once closings are over the only thing that will now move jurors are other jurors in the deliberation room. This is your last chance to empower the jurors who are on your side. You want them to fight hard for your client’s case. The best thing you can do is to help give them momentum, energy, and passion.
Here’s how I do this. I sit quite still during the defense closing. I completely concentrate on the lawyer and the jury. I will have a small two inch sticky pad. I will occasionally write a word or phrase on it. As the closing continues I will replace the note with a winnowed version of the note and so on until I end up with at most five points. I then will reduce it to three points. Usually I can then reduce it further to one point but I don’t sweat it if I end up with two or three.
The defense lawyer will often say a line like this: “Now comes the hardest part of the case. I have to sit down and the plaintiff attorney gets to speak to you one more time. I don’t get to say anything after that. This is because the plaintiff bears the burden of proof. They get to go first and end last because they are the ones who have to prove their case. The plaintiff attorney will come up here and tell you point by point why my closing is wrong. And I can’t correct them. But that is how our system works. Thank you for your attention.”
My mind is not cluttered with yards of notes and lists of specific points to address. I focus internally. It feels like a laser is slicing through the jumble of thoughts that are seeking to distract me from the essence of the message that needs to be made. I breathe. Usually briefly close my eyes. Get up and then speak from the heart.
I know, I know. This isn’t really explaining how to do it. But there is no formula. There is no outline that can be prepared in advance. The art of rebuttal stems in the ability to come up with a powerful rejoinder on the fly. By the end of a trial – you know everything there is to know. And this is the final moment you have to trust yourself to say the best thing that can be said.
Attached is an example of one of my rebuttals from a recent case.