Final arguments: A judge’s collection

A rundown of interesting, sometimes original, sometimes funny final arguments collected over 22 years on the bench

2016 July

Who needs another article about summations? You already know to avoid golden rule arguments and never to say you personally believe your client. You double-check your technology because you don’t want a breakdown midway through your talk. But what you (and I) don’t know are the magic words to make your final arguments sing.

That’s because I doubt they exist. Only examples do. To write this article,
I dug through my files in order to find compelling excerpts from trial masters as well as from attorneys who may be new but are learning fast. To be fair, I’ve included several defense arguments.

Please understand: I’m not coaching you. Even if I wanted to, I wouldn’t succeed because the summation that wins for one lawyer may lose for another. You need to find your own trial voice. Consider what follows as nothing more than a rundown of interesting, sometimes original, final arguments that I’ve heard over the years. I warrant nothing. Actually, in a few of these cases, the lawyer lost despite what I considered to be an excellent summation. Nevertheless, I’m including the segment because I could sense the jury leaning in and concentrating a tad harder.  Another caveat: I am not giving you direct quotes because my sources are notes, not the reporters’ transcripts. I use quotation marks only when I am reasonably sure I caught the exact words.

Introductions

Before launching into the plot, many good lawyers humble themselves. Instead of trumpeting their confidence in victory, they may lead off with some variant of the following, from a case which the plaintiff won:

I gotta tell ya, I’m a little scared. …. I guess that’s not a good thing for a trial lawyer. Maybe it’s better to say I’m concerned. I look over at that man who has come here every day, and I understand what he’s been though and what they (pointing to the defense) are trying to make him out to be. I wonder if I will have the words to say to you, I’m afraid I might forget something, an important point.

In a case in which a defense attorney was convinced the plaintiff’s evidence was flimsy, he opened as follows:

A few years ago I was privileged to sit on a jury. ... What struck me after sitting through a medical malpractice case is how little meaning final argument had. My fellow jurors and I could hardly wait to get into the jury room, and I think you all feel the same way. If I had a little more guts I would tell you to go to it. You have twenty-four eyes and ears and have heard the evidence. But I don’t have the nerve to do that. But I won’t take two hours and fifteen minutes (The time I’d allotted to each side). If I do, ask the bailiff to shoot me.

In one multi-party case, the last attorney to argue began this way:

Finally I can say what I think of all this. When I was a younger lawyer, I thought if I watched the masters and learned well, I could give a final argument that changes people’s minds. I have changed that view. I don’t think I can convince anyone of anything if they don’t already know it. All I can do is put together some of the testimony, facts, and law, and try to make some sense out of something that is a hodgepodge. Trials are like the D-Day landings – lots of people, casualties, and chaos. I am like Zsa Zsa Gabor’s sixth husband. I know what to do, but I don’t know how to make it interesting.

Many attorneys start by commenting on the jury system. “The jury system is amazing,” one lawyer said, and then went on:

You cannot stay in this business as long as I without believing in the jury system. Over two hundred years ago some wise people sat down with paper and wrote out a new system: decisions are to be made by the community. We found that it works, that citizens like you pay attention and are not swayed by emotions.

There are lawyers who, when they begin, go straight to the heart of the matter. In a car vs. motorcycle case, one plaintiff’s lawyer opened her final argument simply and directly by telling the jury, “You have three jobs: answer all the questions on the verdict form, make sure everyone follows the law, and explain to the other jurors why you feel as you do.” A few sentences later she said, “Tell the clerk if a juror is not following the law. Don’t be part of a jury knowing you made a choice that does not follow the law. You don’t need that on your conscience.”

Sometimes counsel can be effective by commenting on the length of a trial or on events that took place outside the courtroom. After a drawn out ordeal, counsel for the plaintiffs began by saying, with PowerPoint cartoons to represent each incident:

You didn’t know you would encounter so many obstacles. We had a sheriffs’ strike, then the transit strike, then the grocery strike – we aren’t eating as well (this got the jurors laughing), then a gas leak, and we had an earthquake. We went through five months of holidays spent with new friends. You filled out your questionnaires in June. Since then we’ve celebrated Halloween, Thanksgiving, birthdays, Hanukkah, Christmas, Rosh Hashanah, Yom Kippur, and then the New Year.

Themes

In every CEB course I took about trials, the lawyers said that cases need a theme, “a line going from voir dire through the final argument.” It’s the best advice I’ve heard, and those who have followed it generally do quite well.

I don’t care what your lawsuit involves. It can be the mildest fender-bender in the parking lot. Your case has a theme. It can be a word, like “greed.” It can be a proverb. Even if the theme does not sound sympathetic at first, use it if it fits. In one business trial, the winning side opened and closed by telling the jury, “There are three themes in this case: entitlement, disclosure, benefit.”

Here’s how one good attorney worked the theme of honesty into the final argument:

They are trying to sell you on the idea that honesty doesn’t matter here. And that competition is what governs and you can ignore the rules. God save us if that is the world we live in. Many are hurt by that attitude: Individual workers, the honest competitor, and all of us in the final analysis. I have a hard time accepting the fact that someone lies and now you caught me but it makes no difference. It makes a difference, and each of you knows it. You are in a unique position. It won’t nab headlines. But honesty counts. That’s what this case is about. I am not asking for a windfall. What you award is in your discretion. But make no mistake. What you do matters. Hopefully, rules are there for a reason and honesty counts.

The jury awarded a lot.

Attacking your antagonist

Don’t try to demonize your opponent. Name-calling tends to boomerang on you. Don’t call someone evil unless you proved he is, and I mean beyond the shadow of a doubt. I wasn’t there, but according to the newspapers Daniel Petrocelli, in the civil trial of O.J. Simpson, made a spectacularly effective closing which culminated at the moment he pointed to Simpson and belted out, “There’s a killer in this courtroom.” It worked because [the jury felt] he’d proven it.

Unless you are fighting a killer or another form of beast, it’s better to understate, especially if the damages you seek are modest. One plaintiff’s attorney described the person who injured his client by saying, “The Defendant is not an evil person, but he made a mistake and caused damage, and he has to pay for that.” When defense counsel told the jury that the case was more about money than about helping an injured person, back came the following remark: “That is right. This case is about money. We don’t want to put the defendant in jail. We want the defendant to pay what he owes to make my client whole.”

Still, certain occasions call for, if not ad hominem attacks, then catchy labels and metaphors such as, in one trial I heard, “a shrink who turns into a talking dictionary.” In another case during which the defense doctor’s testimony could charitably be described as palpable nonsense, the plaintiff’s lawyer labeled him, “The flim-flam man paid by the defense to go from court to court and try to take away compensation from victims of accidents.” More than one juror nodded her head at this description and again when counsel displayed a photo of this doctor in his white smock and said, “He’s a four hundred thousand dollar a year hatchet man. Don’t be fooled.”

One attorney dealt with an obsequious expert by stepping into the witness box and mimicking the gestures the expert had made at the beginning and end of every break:

He stands here in this witness box, and he smiles, this big, tall guy watching you come out (At which point counsel smirked and vigorously nodded his head), but will you decide based upon what this man tells you?

Usually the best way to describe your antagonist is with the evidence. Simply point it out to the jury and let them form their own conclusions. A plaintiffs’ lawyer who specializes in medical malpractice did just that in a psychiatric malpractice case:

Look once again at her chart. It is the clearest pattern of someone out of control. No boundaries, no control, no structures. You need Dexedrine? Come to my office. I don’t even have to see you. My staff will give you the prescription; I sign the triplicate and you go on your way. The majority of the dates my client got a triplicate medication she never saw the defendant. Read the handwritten notes if you want to see someone with no idea of what is going on with her patient.

I understand; the defendant probably didn’t have time – between her lectures and her center with thirteen employees. Imagine the number of people you have to prescribe Dexedrine to in order to maintain a staff of thirteen in practice. There are not enough hours in the day, not enough $l60 for forty-five minute sessions. There can’t be. No wonder you work twenty-six hours a day, have groups at your house at midnight. You’re supporting a staff of thirteen. How can you possibly know what goes on with patients? There’s no way. She was out of control. That violates the standard of care.

Just plain folks, with empathy for both sides

You’ve undoubtedly been told that a folksy approach can work wonders. Often it does, certainly more than acting like a pompous professor emeritus. At bottom, it depends on your personality. Don’t fake it. Jurors will see through an act, but if you’re the mellow type, take advantage of it. It’s hard to convert folksiness into cold type on a page, but here’s one example that, I believe, helped turn an unfair competition case the plaintiff was winning into a defense victory.

They need to find liability, so they looked at the Uniform Trade Secrets Act. “Not being generally known to the public.” But this was industry standards stuff, not secret stuff. Just because they buy a stamp and stamp them proprietary does not make them proprietary. If you stamp “elephant” on a cat, it’s still a cat (A smile from one of the jurors, a lawyer who, several years later, would become a judge).

Was there a trade secrets policy? I’ll be doggone. It took them two years to come up with it and put it on page ten of a document, and then where do they put it? In a drawer in the office. No employee said they got a copy. They had a piece of paper in a drawer somewhere but that is not a policy. Their lab was wide open. They say they got a shredder and a locked cabinet. I got as much security as that in my home. I got a password on my computer. Whoopee. Now they want punitive damages? That’s not worthy of discussion. Nothing here rises to despicable, not by anybody’s standards, not even the plaintiff’s (Laughter from the twelve). This is a man who knew how to bake a cake and decided, after being fired, to bake cakes for himself instead of for someone else. And he’s baking them better now.

When it is called for, don’t be afraid to express sympathy for the other side. This is particularly true in accidents in which the person at fault was, like your client, badly injured. In one wrongful death case, defense counsel said the following early on:

There is no one in this court whose heart did not go out to the plaintiffs as they sat here stoically telling you about their life and loss of a father, the guidance of a father to a young man, the loss of a dad to a daughter who has yet to learn how to interact with men. Your decision will be hard. We understand that.

Medical care

One of the best arguments I heard occurred in a case in which a truck had struck a pedestrian and caused multiple fractures of the skull. The defense implored the jury to be fair to the defense because this had been “just an accident.”

Said plaintiff’s counsel:

They tell you this is just an accident. But an accident equals negligence.

They say this is not fair to the defendant? The plaintiff didn’t ask for this, to be hit by a truck, carted to the ER, and suffer as he did. If he could turn back time and get his life back, he’d do it in a heartbeat. (Then counsel raised his voice.) What is not fair is a steady diet of painkillers and doctors.

The defendant attacks this good man who wanted to get back to work. They maligned him for his work ethic. If he’d taken off six weeks, they’d call him a malingerer.

Next, a few minutes later:

Then there’s the catch 22 argument: if he has surgery, he will be symptom free. Or maybe not. And if he chooses not to have surgery, he cannot be penalized for that. Whether he goes under the knife is his choice. He is the type of guy who guts through pain. But he is entitled to his future medical expenses. He should be applauded. He doesn’t lie and cheat. He is honest.

So I pray, I ask you to debate these issues. Look at the law, the facts, knowing your verdict represents the history of this incident and also that he be compensated for the rest of his days on earth. That is your charge. You are the judges. You’ve got to be brave. If you have an opinion, say it. If a group doesn’t want to see the film (The incident had been caught on a security video) and you do, say it. You act collectively as the cross section of the community, but you act alone. “Godspeed during your deliberations.” In another personal injury case, counsel put it succinctly:

The plaintiff is not required to shop around. He’s entitled to best hospital, best surgeon, the best rehab. He did not ask for this. He only has this one opportunity. He cannot come back after this trial is over and ask for more. This is it.

Pain and suffering

I’ve seen many effective techniques, from mentioning a number – be it daily, weekly, monthly – to not mentioning a number at all, as in this passage: “I can suggest a number, but I won’t. Mr. P doesn’t want me to do that.”

Sometimes it pays to confront head-on the defense claim that a case represents “jackpot litigation,” as in what this attorney said in connection with a minor car accident:

This is not plaintiff’s lottery ticket. We are not asking to make him rich. Don’t give him a million dollars.

How much is pain worth? It is different on different days.

As for the surgery: He signed a waiver saying you are getting anesthesia and you might die. They will drill holes. He will go home medicated. That is worth something. That’s worth more than a hundred dollars a day, but not a million a day.

In a successful malpractice suit against a psychiatrist, one trial attorney discussed pain and suffering this way:

Pain and suffering includes her changed relationships with her kids, with her husband, her friends, her struggle back. Ask what the damages would be on a monthly, daily, or weekly basis, and then multiply it out. If daily, considering what some of these experts charge, is her experience worth $200 a day? $300 a day? You saw people charging $300 an hour. It’s up to you. Come up with a number, multiply it out, that’s general damage. With respect to future pain, again, come up with a number and multiply it out.

A lawyer in my court won a million dollar verdict with the help of a final argument that began with setting up a grid with each of the CACI elements of pain and suffering listed on the left. Atop the next column he wrote “Past”, then “Future” on the far right.

Let’s look at [client’s] pain. There’s the pain leading up to surgeries, the pain of recovering, the pain of rehabilitation. How about the daily pain that has continued the past three years? Now, how long will it last? If a month or few days, that is the low end of the scale. Maybe he’d ask for two to four thousand dollars above the meds and loss of earnings. But let’s move up the scale and say it lasts years. The rest of his life? 43.5 yrs? In M___’s case, six months later, he still is taking Percocet and Vicodin. There’s swelling every day and no end in sight. How much does the pain interfere? At the top end, the pain takes over your life. M___ is in middle of the scale.

Then he addressed mental suffering.

How much for how long? The experience of being thrown to ground, the ambulance ride, wondering will his foot be saved? Being told he needs surgery, knowing the risks, knowing the length of recovery time.

Disfigurement: he has some scars. That’s the low end of scale, with nothing for future damages. Give him $5,000 for the past.

Inconvenience: He’s using a walker and a cane, staying in his aunt’s living room for a month. He has doctor visits, physical therapy. He’s learning to walk again.

Grief: the sadness you have when you know you can’t do what you used to.

Anxiety: the fear of what is to come.

Humiliation: He used to be independent. Now people help him shower and use the bathroom. He does not feel whole.

Finally, he said:

“A debt has been created and is owed. The same as a fire at Costco which burns merchandise. They’d total it up and submit a bill. It’s the same here, and it’s M___’s only chance.

Never was his style loud. It remained conversational, slow and easy, with lots of eye contact and hands folded in front. I could sense the jury responding.

Repetition and riposte

Sid Caesar once told a group that repetition can create great humor. It can also create great arguments, like this one in which, at least six times, defense counsel slammed every one of plaintiff’s arguments with the line, “They’re just making this argument so they can come in here and put a big number up on the board.” I don’t know if that caused the jury to defense the case, but it certainly helped. By the third time counsel said this, several jurors were nodding along with her.

A good comeback can count for a lot, if only to break the tension by making jurors laugh. In one case, defense counsel pointed to a number of items the plaintiffs’ witnesses had said and branded every one of them “a whopper.” As in, “That, ladies and gentlemen, is another whopper.” When it came time for the plaintiff’s second argument, counsel made reference to the constant use of the word “whopper” and then said, “You know what? Let’s make your verdict a whopper. Then, let’s supersize it.”

Talking about the experts

Most of the attorneys I’ve seen know how to counter expert opinions, but just in case, here are a couple of good arguments I’ve heard.

I do this for a living. I’m comfortable in a courtroom. But my clients were nervous. This is not their profession. My clients are not professional witnesses. They are everyday witnesses. I could take lessons from the doctors the defendants hired, who have testified hundreds of times.

And this one:

Dr. B___ impressed us with his PhD and all that stuff, but you need no degree to look at pictures. Just use your common sense. I could do that in the sixth grade. The defense expert was on auto pilot with these opinions he gives over and over. He spits out the same answer. Dr. B___ made over $700,000 last year testifying. Where I’m from, that is a lot of money. Would he jeopardize his income stream by telling the truth once in a while?

And here is how two defense attorneys rebutted these types of arguments:

When our expert says the plaintiff is right, the matter goes away. But I guess they don’t want the defense to defend themselves. They make a claim and put up their doctor and we’re supposed to roll over and pay. No, we don’t throw away our money. When you find a good mechanic, a good dentist, you will go to them over and over, and you will refer your friends to them. They know their job. That is why we use Drs. B___ and R___frequently.

Your own experience

Lawyers have to be careful about inserting anecdotes and making statements that could slip into the realm of testimony. But at times it becomes the right move. After one attorney argued that a case was worth millions, his opponent said, “This is not my first rodeo. I handle a lot of cases. This is not a seven figure case, not even a six figure case.” The jury agreed with him.

The end

Too many lawyers end by gathering up their notes even before they finish. Some are sitting down as they say “Thank you.” Don’t deflate your balloon like that. Stay in the moment and say something that will hover in the jurors’ minds. Like the simple but compelling last line in the truck vs. pedestrian case, “Godspeed during your deliberations.” Like the reminder, “You’re the only people she’s got.”

Or you can have a closing like this one:

Thank you for your patience, your good humor, for all of you here going into your seventh week. I’ve seen you in the hall on your cell phones, doing business. We owe you a huge debt.

Here’s another ending that kept the jurors’ attention:

Remember the juror who said in voir dire, “I respect you and your education. Why don’t you handle more important cases?” I’ve represented people who’ve been hurt my whole career, people the system can sweep under with the money and resources that the defendant has. Maybe this isn’t the biggest case I’ve ever tried, but what I fight for is the most important thing in my life. It matters to me, the right to a jury trial, whether it was a parking lot accident or someone losing a limb.

So did this one:

I could go on and on. But I won’t. You saw what I saw. You heard what I heard – innuendo and uncertainty. My client does not have to write a check because of that. No amount of bombast substitutes for failing to present a logical case.

I, too, could go on and on. But I think you get the idea. As a last item of advice, strive to forget your notes in favor of eye contact. Have a thorough command of the evidence, and then be yourself.