Big Bad Wolf Proofing your Closing Argument
Once upon a time, there were three little lawyers They were sent out into the world to fight for justice for people unfairly injured. Shoulders back, heads held high, arms swinging, feet marching. They were filled with a sense of righteousness and faith in the Seventh Amendment. Optimism permeated their beings as they set up their houses. They couldn’t wait to get to trial. The ultimate tribunal of truth. Oh the joy!
The House Of Straw.
The first little lawyer had a great voice. It was mellifluous in a most magnificent way. It would bounce around the edges of a room and seep into the very pores of the listener. It was a voice meant for storytelling around a campfire. Dressed up it could have held its own in any theater. It was a voice that could entrance and enthrall. And what it needed to do one fine Thursday afternoon, was to convince a jury that an injured person deserved a fair shake.
The case had strong points and not so strong points. The lawyer figured – why bother talking about the weaknesses when the strengths were so much more interesting and beneficial. The jury instructions were…well, they were boring jury instructions. So the lawyer decided not to waste a moment with those. The plan was simple and straight forward. Talk about the good things in the most wonderful way and the jury will vote for the plaintiff. Yay!
"Little pig, little pig, let me in!"
"Not by the hair on my chinny-chin-chin!"
"Then I'll huff, and I'll puff, and I'll blow your house down!
The case though prettily presented, was nothing but straw. The cynical jurors didn’t believe the truth was remotely close to that espoused by the plaintiff lawyer. Just a few puny puffs from the Big Bad Wolf was all it took. Heck the Big Bad Wolf could have probably just leaned against the house and it would have fallen down.
Moral of the story so far:
Don’t believe that your personal presentation strengths alone can overcome a jury’s skepticism. You are not seen as the truth, the light and the way. You are seen as manipulative and self serving.
Avoiding tough issues highlights the holes in the case and proves to a jury that you are not credible and have no answers.
Good closing arguments don’t equal a linear rehash of your favorite parts of a case. The only person who is persuaded by such an approach, will be you.
The House of Twigs
The second little lawyer had an exquisite eye for detail. Every possible tidbit of information was discovered, retrieved, summarized, itemized and buffed to perfection. A glorious mountain of data was amassed with meticulous precision. Every fact and nuance of the case was accounted for with specificity. The lawyer left nothing to chance, confident that the jury would surely be impressed by such utter thoroughness.
In trial, logic reigned supreme as fact after precious fact was laid out before the jury. The lawyer started from the beginning – the date of plaintiff’s birth to be exact. Family members recalled lovely memories of the plaintiff’s childhood, adolescence, college, marriage, the birth of two children. Coworkers described every job held peppered with anecdotes. Neighbors commented on gardening and daily activities they had seen for a decade. Witnesses described the injury incident for a full day. A parade of healthcare providers and experts went over every chart note, every item of damage, every single piece of everything. The crowning moment of glory though, was saved for the plaintiff. Just in case the jury didn’t get it the first time, the lawyer had the plaintiff start at the beginning and tell their whole life story again.
Now the lawyer had heard that repetition was the key to persuasion and the number three was golden. The lawyer worked all night to create the perfect closing masterpiece. The next morning every single fact was recited and every strength and weakness analyzed.
"Little pig, little pig, let me in!"
"Not by the hair on my chinny-chin-chin!"
"Then I'll huff, and I'll puff, and I'll blow your house down!"
The case though fastidiously presented, was nothing but twigs, albeit a lot of twigs tightly woven together. The jurors did not have the interest or energy to try to absorb the mass of data presented. They agreed the lawyer was very prepared. But they gave up trying to sort through the evidence. The Big Bad Wolf had to blow a bit harder this time. Little puffs wouldn’t do. Still, without breaking a sweat, the wolf clapped with glee as the house came a tumblin’ down.
Moral of the story so far:
Preparation is good, but it alone won’t win the day.
Simple is almost always better even though we have been trained to obsess over complexities and details. The more we crowd into our arguments, the harder it becomes to convey a message.
Good closing arguments don’t equal a rehash of every case element and argument. The only person who is persuaded by such an approach, will be you.
The House of Bricks
The third little lawyer had been watching the Big Bad Wolf’s carnage. Humbled, nervous and frankly frightened, the lawyer spent every spare moment devising techniques to deal with the beast. Determine best personal presentation attributes – check. Learn and prepare case details – check. But there had to be more.
At first the lawyer thought there might be a failsafe technique that once perfected would always work. If sequencing always occurred just so… if the plaintiff always presented the same admirable traits…if the theme tied everything together... if rules were shown to be broken… if the defendant was exposed as a danger to society. But the formula never worked the same way in all circumstances. Plus the wolf was wily.
The quest for the holy grail of trial advocacy was an exhausting process. One day, tired of searching for the key to it all, the lawyer fell asleep and dreamed about Kindergarten. Upon awakening, the lawyer recalled the dream and had an “aha” moment. Mrs. Pasco, had been the lawyer’s Kindergarten teacher. She had blond hair that flipped upwards in a perfect “U” at her shoulders and groovy black rimmed cat-eye glasses. The two best times of the day (other than recess) were: story corner and show and tell. The worst time was having to lie down and pretend to take a nap. The lawyer recalled a popular book that was called “All I really need to know, I learned in Kindergarten.” (Robert Fulghum 1986). The lawyer figured if it was good enough to stay on the New York Times best seller list for two years, it was worth trying out.
The case went fairly well. Nothing was perfect, but the lawyer was prepared, practiced deep breathing, and used many different trial techniques. There were details, but set in the clear context of a big picture. There were many witnesses, but they did not repeat the same testimony. The plaintiff testified but not overly long. Tying everything together was a case story that began in voir dire and culminated in closing. There was a moral to the story, a cast of characters, and action involving a dramatic conflict that needed resolution. During closing the lawyer showed as well as told by using visual aids. Statements were objectified and supported with proof.
The jurors listened intently because the storyline helped so they could follow along with interest. They stayed awake because the pictures kept the story alive. They appreciated not being patronized. They were moved.
“Little pig, little pig, let me in!"
"Not by the hair on my chinny-chin-chin!"
"Then I'll huff, and I'll puff, and I'll blow your house down!"
Well, you know the rest. The Big Bad Wolf came a calling. He huffed and he puffed. He puffed and he huffed. He pushed, kicked, pounded and blew as hard as he could. But nothing fell down. He threw a ladder up against the house and scrambled down the chimney. But the plaintiff’s lawyer was ready with a fine and honed rebuttal. The wolf fell into the boiling pot of water, howling as he jumped out and rushed away. As he limped off, his big ugly mouth sneered into an evil smile. For this was only a temporary setback. There were after all enough houses of straw and twigs to keep him busy for a lifetime.
Moral of the story:
Humility and hard work create strength.
Tell a story
Show and tell
By using your personal attributes, preparing well, and devising a good plan that helps the jury see, hear, feel and smell the case, you can stave off the Big Bad Wolf;
Even if the Big Bad Wolf can’t blow your house down, there are still hurricanes, floods and earthquakes to consider.
THE END
POSTSCRIPT
Once upon a time, I worked in a 50 person firm that handled insurance defense. My first win was a defense verdict in a premises liability case. Nine years later my last win, was strong arming a little old lady and her son into accepting a small sum of money mid trial in a wrongful death case. I was a big bad wolf. Mix and match some of these strategies for an effective closing argument
Tell a story, but not if it is exactly the same one you used in opening
A jury will not punish you for putting creativity and passion into your presentation
A jury will punish you for exaggerating or overselling your client's case
Use quotations, song lyrics, poetry to communicate on a deeper level
A short civics lesson can inspire
Use a literary theme involving a universal aspect of the human condition
Show visual images, but not if you are doing so in the same manner and for the same reasons that you previously showed them
Do not say these words: “you heard from witness X that …”
Take enough time to explain key jury instructions but that does not mean re-reading them to the jury
Show and tell
If you are using PowerPoint and find yourself facing the screen, you’re doing it wrong
Almost no lawyer talks too slowly
Use analogies or other helpful modalities to convey messages
Remember this is argument
Unless you are providing information that will help the jury do its job, you will be tuned out especially the longer you go
Almost no lawyer talks too little
Demonstrate something
Make sense of the evidence
Don’t shy away from negative issues – embrace and own them
Look at and speak to each member of the jury at various times in a natural fashion
Charts and diagrams can be helpful
Do not read from a script