There are very few times when practicing law feels like artistry; closing argument is one of them.

By Kimberly A. Quach, Family Lawyer

draft closing argumentAs trial lawyers, we all dream of drafting a beautifully crafted, compelling closing argument — a solid summary of the evidence that leaves the Court breathless to draft an opinion in our favor, and our clients clamoring to pay our bills in gratitude for excellent advocacy. We have big hopes about closing when we hear bits and pieces of our client’s and other witnesses’ comments, the judge’s rulings and thoughts, and the other lawyer’s arguments. And we can practically taste how wonderful our closings will be as we view the trial during each of these stages. Oh, yes, we think, I must remember to include the judge’s comment during that evidentiary ruling.

But when we actually sit down to write this “masterpiece,” we become overwhelmed by the magnitude of the task. Suddenly, incorporating all of those wonderful ideas seems an unattainable goal. We have no idea where to begin. How can we reduce the case to its substance without sacrificing the one factor that might tip the scales of justice in our client’s favor? How can we change the judge’s mind if she was otherwise inclined to rule in favor of the opposing position?

This Hot Tip is designed to help with the task of drafting a closing argument in five easy steps. It is hardly a panacea for good preparation, but it can help to allow the lawyer’s nonjudgmental, brainstorming juices flow rather than slow the process of drafting when perfectionism looms.

The Five Easy Steps

The five easy steps to drafting a persuasive closing argument are based on the premise that closing argument is drafted, in part, while trial is going on rather than after the trial. Certainly, one cannot draft a good closing argument until the end of the case, but why not brainstorm about ideas for closing as you listen to the case? Pull out your highlighters, colleagues, as you are listening to opening statements and testimony so that you can easily refer to what you found compelling as you listen to the case. Then, when you finally have the opportunity to draft your closing argument, you can collect all of these bits and pieces and quickly incorporate them into your argument.

Lest I get ahead of myself, though, the steps in drafting your closing argument should include at least the following:

  • Listen to the Case Carefully. Listen to the witnesses, the evidence presented, and the Court and opposing counsel with the theme of your case repeating like a well-memorized mantra. Also, look for the Big Mistake made by the opposing client.
  • Highlight Supporting Information for Future Reference. Highlight any testimony, and comments by the Court that support your theme in the case, as well as your perception of the Big Mistake made by the opposing client.
  • Identify Two or Three Main Points in the Case. Identify two or, at most, three main points relevant to the Court’s consideration.
  • Fit the Supporting Information into Your Outline. Take all of the highlighted information that you thought was helpful and place it into the outline that you have created.
  • Create a Catchy Introduction That Summarizes Your Assessment of the Case. After you have created an outline, complete with supporting information, craft a pithy, catchy introduction with which to start your closing.

Listen To The Case Carefully

It is important to establish a theme to your case in your opening statement, which is beyond the scope of this Hot Tip, so I will not address how to develop that theme. Your task, as you listen to the case, is to listen for how your theme plays through the evidence. Is it being supported? Does the theme need to be modified? If so, what additional evidence should be submitted to support the modified theme? How do you plan to pitch the justification for the modified theme to the Court in closing?

Closing Arguments

It is also important to see how the opposing client’s theme plays through the evidence. Has he made promises that were not kept during the case? Has he introduced testimony or evidence that contradicts his theme? A Big Mistake is the part of a case in which the opposing client submits testimony or evidence that substantially undercuts his initial assessment of the case. Listen to the case carefully to identify that Big Mistake. At some point in the middle of your closing, make sure to identify the opposing client’s Big Mistake to undercut the opposing case. It is best to do so in the middle of the case so that the court does not view this technique as unnecessarily negative or overzealous.

Highlight Supporting Information For Future Reference

There is no reason to artificially compartmentalize tasks as a trial advocate. Being a good trial lawyer is a lot like flying an airplane on instruments — one has several critical functions to negotiate simultaneously, and it is perfectly fine (perhaps even expected) to multitask. So that listening to the evidence for closing argument does not become overly burdensome, I suggest you simply use one color of highlighter to identify the information you feel might be valuable for your closing. If you highlight the important tidbits, you will be more likely to stop worrying about remembering them later. (Those lawyers that are highlighter-happy might use another color for cross-examination.)

Remember that there are several sources of information for your closing. The judge may make preliminary comments on the record or in chambers that you wish to address in closing. Your client or an expert might have used a clever phrase to describe a feature of the case. In one of my recent trials, the expert said the father was “consistently inconsistent‚” in his positions during a custody study, a statement I found particularly helpful in my closing. And do not forget exhibits as a source of closing argument materials, which should be identified by exhibit number in your closing so the Court has a clear outline of why you are making your arguments. The judge may not prepare a ruling for several days after the trial, so specific references to exhibits and testimony will be helpful to refresh her recollection. Even more important, use of exhibit numbers and specific references to testimony will vest your argument with an air of credibility, making the Court more secure in its willingness to trust your perceptions of the case.

Identify Two Or Three Main Points In The Case

The Court can process only so much information. After reviewing all of your highlighted information in a very summary fashion, try to think of two or three main ideas that summarize the evidence and testimony. This should be the hardest part of drafting your argument, so do not be hard on yourself if it takes a little time. A cohesive structure for your argument is the very foundation of what makes it compelling and easy for the Court to digest completely, with all of its nuances.

Fit The Supporting Information Into Your Outline

Closing Arguments DivorceThis is truly the fun part. Make a list of all of the information you highlighted, and fit it into the structure you have created. Start grouping the ideas within the structure you prepared. If the evidence is duplicative, or related, in its content, for example, use the information as a list in your closing. Consider the following:

  • You can state, “All of the lay witnesses agreed that the Mother was the child’s primary caretaker, including . . .“ and list the witnesses’ names.
  • The wife’s spending habits, as summarized in the year-end VISA and American Express Statements (Exhibits 31 and 32), show that she spent at least $3,000 a month after taxes.

If a witness provides a good anecdote about the evidence, place it in the outline. At this point, do not be judgmental about what you include. Just list it all.

If you are like me, the closing argument you have drafted is about an hour long. If your judge does not have this level of patience, now is the time to start cutting out detail that you feel is not essential to the argument, or to summarize the detail more briefly. Your choice about what to omit from your closing argument should be based, in part, upon how the judge responded to the evidence. If she was annoyed by one particularly uneventful turn in the evidence, it is a good bet you can safely omit that discussion from your closing. If your judge was careful not to reveal her leanings, put your best argument together. Know that you may need to adapt if the judge appears to wince at your approach during closing.

Create a Catchy Introduction That Summarizes Your Assessment of the Case

Your argument is drafted. You breathe a sigh of relief. But now, according to communications experts, you need a catchy introduction. This introduction will grab the Court’s attention and give you the momentum to deliver your closing with an appropriate level of enthusiasm. It should complement your theme. Perhaps you will quote a witness, or read from an exhibit, or provide an analogy for the way in which your client or the opposing client is approaching the case. Whatever it is, make it simple. Your goal is to have the Court repeat your introduction and theme in her ruling.

Conclusion

Drafting a closing argument is hardly brain surgery, but sometimes we treat it that way because we want it to be excellent. This Hot Tip hopefully provides some ways to help the lawyer quickly draft a compelling closing argument by treating it like a brainstorming exercise, rather than like Chagall’s irreversible splotch of oil paint on a clean canvas. There are very few times when practicing law feels like artistry; closing argument is one of them. Be creative, and be credible by preparing for closing argument throughout the trial.

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Kimberly Quach is a member of the Oregon and Washington bars. She practiced commercial litigation and family law in Seattle and Portland before moving to Singapore in 2000 and becoming general counsel to NMG Financial Services Consulting.