by Andrew Flake
In complex litigation, we are continually distilling the simple from the complex, assessing multiple and often nuanced legal arguments, assessing hundreds of exhibits, sifting through the details of company work. With our closing, we set the capstone on this work, so it is important to make that time count.
How can we craft a summation that is memorable and effective, one that will lead to only a good trial result, but to a win that is sustainable on appeal?
Let’s begin with understanding the audience, the decisionmaker for the dispute. Although there are some principles common to judge, arbitrator, or jury, there are some modes particular to each. For now, since jury argument raises some special considerations it is worth taking up separately, let’s focus on the case you have tried before a judge or arbitrator.
You can imagine sitting on the judge’s bench, or in the arbitrator’s chair, and ask what you need to know to decide the case. That mindset, by itself, is clarifying. You’ll find that the extraneous falls away, and much of what is left centers on a handful of disputed events or document interpretations, areas of uncertain application of legal principles, and choices of what law to apply.
With your mental robe still on, consider some other suggestions. This list by no means exhaustive, but when I have delivered or heard a compelling closing, they have generally shared at least these common elements.
Good organization. You need to prepare and organize your material. Have a clear beginning, middle and end, with signposting along the way. Provide a roadmap, with clear transitions, so the decisionmaker knows where you’re going. Even a few minutes doing that in the most time-pressure situation will vastly improve your reception. On the other hand, no matter how skilled the advocate, trying to extemporize through the time runs the risk of spending more or less time than appropriate on a given topic, or worse, leaving an issue unaddressed. That kind of preparation also enhances your credibility.
Attention to timing. One facet of organization is timing, making sure that you observe limits imposed by local rule or by the judge, and the limits imposed by her attention span. Having no time limits is not a license to lengthen. Depending on the study you read, you can see that attention spans have shortened in recent years, all of us conditioned by sound-byte media and by the hyperlinking of information, so that around forty minutes now represents an upper limit of attention. Where it is not practical (even if it is possible) to condense that much content in a short space, you can break up the presentation in clearly delineated sections, with the transition between them serving to give the judge a break and refocus attention.
Using themes for interest. In every case, no matter how complex, there is a human story, human themes, and human motivations. Find them, and draw them out. If you’ve previewed them in your opening, and reinforced them in your examinations, they will provide a natural foundation for summation. Every case, and I mean every one, from lightning strike to loan proceeds, has its points of interest. As just one example, in even the driest set of facts, there is a nobility and importance in being before a tribunal, having disputes solved in an organized and civil way; thus, a light touch on the theme of justice can be impactful.
And when you structure the presentation around your themes, and the issues to be decided, there is another advantage: You avoid the too-frequent dry march through detail, a witness-by-witness or document-by-document summary that deadens the details and the bigger picture.
Arguing, not recapitulating. Argue! Don’t just march through what the document show. Talk about the conclusions and inferences that can be drawn. The result you want is a specific verdict or award in your client’s favor, so make it as easy as possible for the judge to get there. Take the judge through the way he or she will rule. Just as you would be walking a jury through a verdict form, take the judge through each issue that will need to be decided.
Remember, too, to address all of your opponent’s points in some fashion. An argument left unaddressed will sit with the decisionmaker, and she may wonder whether your silence on the point says something about its strength.
To help your focus in arranging the argument, even if the judge has not requested one, consider drafting a proposed order; concentrating on the form of the order can often elucidate argumentative steps and highlight necessary predicates to the final conclusions you want drawn.
Putting key evidence in context. If you’re not mentioning or using it in your closing, it may not get a detailed look. If you want the court to consider an exhibit and really use it, it is not enough that it is just in the record. A giant set of tabbed binders, unless you’ve pointed the judge to what is important, might as well be a glorified paperweight.
Also do more than just recap or summarize witness testmony. Explain any relevant motivations of the witness and her actions. Comment on credibility. Use the lenses of memory, perception, honesty, and the observable facts of testimony — was the witness helpful, defensive, argumentative? Remind the judge of those moments on cross of great admissions, and of evident aspects of demeanor that speak to disputed issues.
Using presentation technology. Not only can visuals help — both to explain legal authority, and to diagram the issues and outcomes involving in the award — in most business cases, they are essential. Many good and easy to use applications let you highlight, underline, and enlarge key testimony from documents and depositions. Tools like decision trees and flowcharts, timelines, and organization charts will reinforce and strengthen your argument.
Do make sure the format complements, and does not conflict, with your own delivery, or distract from what you are saying. In this regard, I find text-heavy slides really deadly to attention. There’s really no reason to fill a slide with text unless it is a reproduction of a contract provision or statute and you are calling out, at the same time, a particular section. But if all a slide does is repeat what you’ll be arguing, or say it in a different way, don’t put it up.
Adding style to substance. Make part of your preparation, and part of the lead time before your argument, thinking about the words and phrasing of the argument. If you’ve organized well around a story and themes, and then set aside time to practice, you’ll find striking phrasing suggests itself. Consider, too, whether there are figures of speech, images and metaphors, that can help you to explain and argue. Especially in our cases with complex facts, a well-turned phrase, one that vividly and succinctly captures a point, can be a powerful aid in persuasion.
Thinking through your phrasing does not mean memorizing or delivering a set piece. Working from notes, you can remain flexible and spontaneous, adjusting your delivery to suit the moment. But by planning in advance, you make sure you cover what you need to.
One exception I might note is the very beginning of your closing and your peroration, a more emotional and impactful last appeal and request for a decision in your favor. Memorizing that so that it can be delivered smoothly and in a fixed time will help make sure the presentation does not taper off or peter out. You want to finish with impact.