Closing Argument - Chapter 23 - The How To Win Trial Manual - 5th Edition

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The closing argument, or summation, as it is also called, is, along with the cross-examination, a Hollywood favorite. It lets screenwriters condense a plot line in a dramatic, grabbing oration. Lawyers, too, love closing arguments because they can wax eloquent about justice and injustice, about messages that need to be sent, and about the flag, apple pie, and the American way. More latitude is given to lawyers during closing-argument than during any other part of the trial. Thus, lawyers can reminisce with the jury about their childhood, their favorite teacher, their first love, almost anything. And trial lawyers, frustrated actors all, love it.

Most lawyers believe that closing arguments change jurors’ minds. Thus, these lawyers believe that one side can be losing—that is, the evidence has persuaded the jurors that the other side should win—and a compelling closing argument will change those jurors’ minds. Indeed, we have seen that no lesser light than Irving Younger put so much stock in the power of the closing argument that he advised lawyers to keep their trial evidence—at least the point they are making on cross-examination—muddy and unclear. Respectfully, Younger and the others are wrong.

People credit closing arguments with so much power because that’s what jurors focus on when they are interviewed after a trial. Jurors hear closing arguments last. Thus, under the psychological mechanism of “recency” they will naturally remember closing arguments the best. Additionally, closing arguments tend to be more interesting than any other part of the trial. But, most significant, jurors will credit the winning lawyer’s closing argument with having carried the day because they were receptive to that argument before they even  heard it. In a word, they were already convinced by the opening statements and the evidence, and they embraced the closing argument that supported their conviction; it validated the conclusion they had already reached. This is the same psychology that we see at political conventions and rallies—a candidate’s partisans will love their candidate’s speech, and some actually will say that they were persuaded by it. In fact, of course, they were “persuaded” by it because it reinforced their own beliefs.

Ralph Adam Fine has been a judge on the Wisconsin Court of Appeals since 1988. He served as a trial judge from 1979 to 1988, and presided over more than 350 jury trials. He was the presiding judge in the PBS Frontline production Inside the Jury Room, which was the first time jury deliberations in a criminal trial were filmed and broadcast. Judge Fine has taught trial-advocacy, evidence, and appellate-advocacy at over 150 continuing legal education programs around the country, at in-house trial-advocacy programs to law-firm litigation departments, and as Professorial Lecturer in Law at the George Washington University National Law Center in Washington, D.C. In January of 1995, the University of Virginia School of Law honored Judge Fine with the Honorable William J. Brennan, Jr., Award for his contributions to the teaching of trial advocacy.

Ralph Adam Fine is the author of The How-To-Win Trial Manual - 5th Edition , The How-To-Win Appeal Manual - 2nd Edition as well as the annually supplemented Fine's Wisconsin Evidence, which Judge Jack B. Weinstein, original co-author of Weinstein's Federal Evidence, called "probably the best single-volume state treatise on the subject that I have seen." Judge Fine is also a senior contributing editor and reporter for the four-volume treatise Evidence in America (Lexis); and a contributing editor of the ABA publication Emerging Problems Under The Federal Rules of Evidence (Lexis 3d ed.). He has analyzed legal issues on 60 Minutes, Nightline, and PBS' The NewsHour.