Even those totally unfamiliar with the legal system or how courts or personal injury trials work are familiar with one part of every trial – the closing argument. The closing argument has become the juiciest, most interesting part of trials for the general public. Great legal movies are based on dramatic closing arguments, and TV shows that will condense the trial itself, will often spend extended time showing closing arguments.
That is probably because the closing is a summary of everything that happened at trial, in a (somewhat) concise, plain-language statement that people can understand. A juror may not have the patience to hear three hours of testimony from an orthopedic surgeon, but they probably are interested in hearing the lawyer’s closing argument summary of the doctor’s testimony.
Closing also provides the attorney the chance use some drama. Testimony that may have been dry or poorly worded during trial, gets new life during closing argument coming out of a good injury lawyer’s mouth.
Rules Apply During Closing
Because of what we see in movies and on TV, many believe that closing argument is a free for all where an attorney can say whatever he or she wants. Any story, attempt at humor, show of emotion, or attack, is fair game in closing, according to the movies.
Many are in fact surprised that there are a number of rules that apply to closing arguments, and that a lawyer is not always free to say whatever he or she wants to a jury. In fact, in many cases, trials get thrown out for no other reason than an attorney saying something that should not have been said in closing argument.
There are a number of restrictions what lawyers can say during closing. Here are some of the major errors that cause trials to be thrown out.
Saying Things Not in Evidence
A lawyer can restate what is in evidence. He or she can urge a jury to interpret that evidence a certain way. She can ask the jury to make reasonable inferences based on that evidence. But a lawyer can not say anything to a jury during closing, that has not been admitted into evidence.
So, for example, if a driver who causes an accident testifies that he had no sleep the night before, an attorney can ask the jury in closing to consider how having no sleep might have made that driver less attentive when driving. But the lawyer could not say “the driver may have been drinking,” or “the driver was probably speeding,” if there is no evidence of these things admitted during the trial.
Asking the Jury to Put Themselves in Anyone’s Shoes
This is often called the “Golden Rule.” Surely, a jury is allowed to use their own life experiences when making decisions. However, a lawyer cannot ask a jury to think what they would do, or how they would feel, if they were in the shoes of one of the parties. This is simply asking a jury to make a decision based on emotion, instead of on the evidence.
Note that it is proper to ask a jury what they would do, in a certain situation—for example, saying “wouldn’t you slow down your car in a busy intersection?” would be permissible. But “how would you feel if you had a broken arm,” would not be permissible.
Misstating the Law
During the course of the trial, the judge will inform the jury of the law that they should apply when coming to a decision. Lawyers can remind the jury of those laws. But a lawyer can not ever misstate the law to be applied.
Personally Vouching for Credibility
In cases in which witnesses have differing opinions or recollections, a jury will often be left to determine which witness they find credible and which they do not. It is the lawyer’s job to urge the jury to find his or her client’s witnesses credible. However, that must be done through evidence, and not through personally vouching for people.
Thus, a lawyer could say “Dr. Johnson has performed 100 surgeries and is an expert who should be believed.” A lawyer should not say “Dr. Johnson is a good, honorable man who I have never known to be dishonest.”
Stating Personal Beliefs
Obviously, lawyers should and do state their personal beliefs during closing as to the evidence presented. A lawyer can tell a jury that he or she believes that a business that inspects its floors once a day (if that is what the evidence was during the trial) is not acting reasonably. A lawyer can surely tell a jury that he or she believes that the client has suffered by the injuries sustained.
But a lawyer cannot make references to him or herself, or to what he or she believes as a personal matter, to support an argument. Saying that the lawyer “thinks” someone is lying, without a basis, or saying that a lawyer’s religious beliefs would make certain behavior wrong or immoral, would be examples of improper usage of personal beliefs.
There is wide latitude for lawyers during closing argument. Even when mistakes are made, those mistakes must be serious and material, to result in a trial being overturned. Still, injury victims should know that what their lawyer says on closing is not unlimited, and there are consequences for mistakes.
Make sure your attorneys understand all the rules that apply in a personal injury trial. Contact the attorneys at Brill & Rinaldi for a free consultation, and for guidance as to handle your personal injury claim.