Closing Conversation: Bringing Down The House

Closing Conversation: Bringing Down the House

Criminal trial advocacy, particularly closing argument, is theatrical. People have come to expect lawyers to put on a show to sell their cases at the end of trials. Advocates for both sides stand up before the jury, parade evidence, point fingers, raise voices, pound tables, and cry for justice in an effort to persuade jurors to return a verdict in their favor. Prosecutors start the charade by recounting in brutal detail the gruesome and horrific nature of the crime. They inflame passions by painting a picture of the victim's suffering. They ooze righteous indignation and outrage at the defendant and proclaim that justice can only by served by a verdict of guilt and the maximum punishment allowed by law. It is a one size fits all approach to advocacy and most prosecutors engage in this kind of showmanship in every case, regardless of the circumstances of the particular crime. Unfortunately, defense attorneys often feel obligated to meet this type of rhetoric with equal zeal for their clients, matching the prosecutors' "passion" with similar theatre. When all is said and done, the jury feels like they've seen a good show, but it has little to do with the decision they have to make. Defense lawyers often hear from jurors, "you did a great job for what you had to work with." In other words, "you put on a great show, but it didn't have anything to do with me." This type of tit for tat closing arguments, where both sides perform themselves to the point of irrelevance, works to the prosecution's favor because of the intrinsic, underlying goal jurors have of providing justice and help to victims of crime.

The much more effective approach to closing argument for the defense attorney is to answer the prosecutor's showmanship with intimate conversation. While the prosecutor is on a stage, the defense attorney is on the jury's level talking to them honestly about what they care about. While the prosecutor's goal is to polarize the jury, pushing them to see the case in black and white, right or wrong, justice or injustice, the defense attorney unifies the room by acknowledging the jury's, victim's, prosecutor's, and defendant's feelings and values and bringing the level of theatrics down. While the prosecutor's showmanship creates emotional distance, the defense attorney reveals himself authentically and by taking emotional risks and being vulnerable creates emotional intimacy with the jury. The defense attorney increases his credibility and relevance by deconstructing the criminal process and approaching the jury, not as an advocate, but as a regular citizen like them, who has been in the unique position to have studied this case more than anyone and has come to believe this version of events for these reasons. The defense attorney specifically addresses the prosecutor's theory of the case and arms the jury with reasons why it is not credible. Finally, the effective closing argument makes a favorable defense verdict an expression of jurors deeply held beliefs about themselves, i.e they are fair, courageous, just, merciful, compassionate, or hopeful, etc., such that to render a different verdict would create cognitive dissonance or feelings of discomfort. These materials offer practical tips, advice, and strategies for effectively countering the prosecutor's zealotry thereby decreasing his relevancy, increasing your own relevance and credibility, and increasing the efficacy of closing argument by inoculating the jury against the State's arguments and making the verdict about the jury.

1. Be Authentic

A) Create emotional intimacy.

Authenticity is the key to credibility and relevance to a jury. We hear that a lot. Because we've all heard it so much, we tend not to think about what that means and to discount its importance and underestimate the difficulty of being authentic. It is not as easy to "be yourself" as one would think. It would appear that being yourself would be innate, but our lack of trust in our own styles and our fear of being judged or feeling too much often leads us to forsake our own voices and adopt the styles of others we admire or skim the surface without revealing ourselves. We use theatre to create emotional distance. Worse than that is when we allow the prosecutor to set the tone and parameters of our arguments by making our presentations simply a response to the State's, inadvertently bolstering the prosecutor's credibility.

Being authentic requires emotional risk-taking. You have to allow yourself to feel empathy for jurors and victims, as well as the defendant, and reveal your emotions to the jury in order to create emotional intimacy with them. Being a juror in a criminal case is a highly charged emotional experience. Not only do jurors see and hear devastating facts during a trial, they bear the weight of making a decision that is going to change lives. They are under a lot of pressure and sit in the midst of enormous anxiety and emotion at the time you stand up to give your closing. It is your job to identify what they are feeling and create an emotional connection with them.

Creating this emotional intimacy requires a lot of thought and introspection prior to ever stepping foot into the courtroom. It is imperative to spend time thinking about what your jury is feeling, and that must be a reflection of what you would feel if you were in their place. What is important to you and how you would be persuaded if a juror yourself should dictate your closing argument. When you talk to the jury about what you honestly care about, about what you think they care about after spending time thinking about it from their perspective, you will reveal yourself to the jury in the process. It is that vulnerability that makes us credible. That is authenticity. It is not easy to be vulnerable because it makes us uncomfortable. It requires emotional risk-taking and jurors can tell when it is real. A lot of savvy, expert rhetoricians that talk smoothly and make great arguments hide themselves behind the show they put on, and make their statements irrelevant-interesting to watch, but irrelevant to what the jury is feeling. The more you reveal yourself emotionally to the jury, the more relevant your thoughts and feelings about the case become. Once you create emotional intimacy with the jury, you create a bond. They feel like you understand them and will instinctively trust your judgment as you discuss your theory of the case. Look for ways to reveal yourself, your struggles, your perceptions, your feelings to the jury.

One example of what I'm talking about is my closing argument