To Close effectively, the Litigator forges an individual connection with the jurors
In none of the cases that I have tried before a jury have I heard the judge say to the Litigators “take as much time as you need to close”. In fact, it’s the opposite—judges always limit the closing time, usually to no more than an hour. Maybe, if he pushed hard, a Litigator can get the judge to let him go an hour and a half, but only if the case was sufficiently complex.
As for me, regardless how much time the judge gives me to Close, I tell him I only need thirty minutes. And then I try hard to get it done in twenty, just to make sure I am well within the Fourth Principle Of Close: Never Go Past Thirty. Like every other human being I like the sound of my own voice, but I know from experience that nobody wants to hear me talk for more than thirty minutes. After that, I’ve lost them—we disconnect.
Only a person with a highly disciplined mind will be able to focus on a single speaker for an hour and absorb what he was saying in a way that it would be useful—and that (it is a fair assumption) is not going to be the mind of the average juror. This is not meant as a negative reflection on the intelligence of jurors, it’s simply a factor of what they have become accustomed to through training and practice. Just as a person who is a very fast runner by nature will still not be able to run a marathon without training, even a very smart person will not be able to focus on a closing for more than thirty minutes unless they have been trained to do so. For most of us, listening to a lawyer talk for an hour is like running a marathon—we’re just not trained for it. I have found that if I go past thirty, I lose them.
Likewise, aside (maybe) from listening to Ernest Hemingway reciting selected passages from A Sun Also Rises, I don’t get much from a person reading anything to me. My first thought is that it would be easier just to let me read it for myself. My second is that a person who doesn’t know his material by heart isn’t committed to it. Even an actor (who is faking it, right?) invests the time and energy necessary to memorize his lines. How believable would he be to the audience reading from the script?
The same holds true for the Litigator during Close. Reading to the jurors both bores them and makes them doubt his commitment to the case. Thus, the Fifth Principle Of Close is Never Read To The Jury. The Litigator who does that severs his connection with the jurors. His script comes between them.
Now, the Litigator can (and should) jot down a note or two to remind himself of the key points that he must make to carry his burdens of proof and persuasion. For this, I use the same Stick system I described in Tactical And Technical Proficiency for remembering the points I need to make on Cross. I write one word (or two at most) on a Post-it note that is too small to hold anything more and I use that to ensure that I don’t omit something critical.
For example, if one of my claims as a plaintiff is for contract reformation based upon unilateral mistake, my burden of proof would be clear and convincing evidence rather than a mere preponderance. Thus, I would write “Clear Convincing” on a Stick to remind myself to explain the difference between the two standards of proof to the jury. I line my Sticks up on the front edge of my counsel table so that I can take them up one at a time during my Close.
But using Sticks (or some other method) as a checklist of critical points is not the same as reading to the jury from a dense page of notes on a legal pad. Not only is that boring, it also keeps the Litigator from making eye contact with the jury. Eye contact is critical in both directions. First, it demonstrates commitment to the jurors who (like everyone else) will be more likely to doubt a man who will not look them in they eye. And, it also allows the Litigator to see how the jurors are reacting to what he is saying. If he sees confusion, he better clarify. If he sees doubt, he must persuade. If he sees agreement, he can move on. But he will see none of these things if he is looking at his legal pad rather than into their eyes. He will have severed the connection.
Reading also has the tendency to keep a Litigator frozen in place, as it is not natural to read and move at the same time. A Litigator who doesn’t move during his Close is denying himself the opportunity to employ the powerful tool of physical proximity with the jury.
Proximity promotes an intimacy between the jurors and the Litigator that is critical for trust and connection. Think about it this way, all things being equal, are you more likely to trust someone reading to you from a podium thirty feet away or a man standing close enough to reach out and touch? People can absorb information as a collective, but they build trust as individuals. Through proximity, the Litigator connects with the jurors as individuals.
Politicians understand the power of proximity. It is why they don’t just give speeches from podiums to huge crowds. They also work the rope line, talking to people, touching them briefly and then later (in their speeches) describing the unique story of an individual person they talked to and touched. While they can’t be proximate with every potential voter, they can use some individual voters as a proxy for proximity. Watching a candidate engaging in proximity on television can engender the same feelings of trust one would experience by actual proximity—if the politician is good at it.
Last summer I took my daughters to a Taylor Swift concert in a huge football stadium. She began her performance from a giant stage erected in one of the end zones, but she didn’t stay there. Periodically she would move to other, smaller stages that were imbedded in the crowd. At one point, she dismounted one of these smaller stages and moved through the audience while she sang. On the video screen we could see her fans touching her as she walked by. When I remarked to my thirteen year-old daughter sitting next to me how surprising it was that she would do that, she responded, “yeah, she really loves her audience”.
Later, my daughter was happy to spend fifty of her hard-earned dollars on a t-shirt with Taylor Swift’s face on it. Although she was only one of seventy-thousand people in that stadium, my daughter felt an individual connection to Taylor. Such is the power of proximity to build connection.
An effective Close starts with the Story
The Story is a brief, compelling narrative that defines the factual theory of the case. It must be brief enough for the average juror to recall most of it during deliberations. It must also be compelling in that it accentuates those facts and inferences that will motivate the jury to favorable action. Finally, it must be a narrative (rather than a mere recital of facts) that elucidates the underlying factual theory of the case while pointing toward the Litigator’s controlling legal theory.
To be compelling, the Story must be substantially truthful and more plausible than the theory of the Opponent. It cannot rely on evidence the judge disallowed or testimony upon which the Opponent has effectively Doubt Casted. Nor can it depend upon multiple assumptions that force the average juror to stretch his imagination past the point of reasonableness. Jurors (because they are people) are subject to Occam’s Razor, which leads them to believe that simpler solutions are more likely to be correct than complex ones. Recall that the Juror’s Problem is to reach a just verdict in the shortest amount of time possible. When presented with the Litigators’ competing solutions to their Problem, they are more likely to select the one that is both factually simpler and less inference-dependent.
The Story must also align with the Forecast of the evidence that the Litigator made in the Open at the start of the trial. If the Forecast and the Story do not correlate, the Litigator will lose the jury’s trust. However, the Story should not be a duplication of the Forecast. The Forecast should be based entirely on Facts that the Litigator is reasonably certain he can prove, while the Story will be comprised of the Facts he has effectively proven together with the reasonable inferences that arise from them.
Inferences are conclusions reached on the basis of evidence introduced and reasoning argued. They are not Facts within themselves because there is insufficient evidence to establish them. For example, if a witness sees smoke coming from the back of his neighbor’s house there are at lease two reasonable Inferences that could be drawn—the house might be on fire or his neighbor might be grilling steaks on his patio. If the witness does nothing further to investigate the source of the smoke, the existence of the smoke is the only Fact before the jury. It will be for the Litigator to argue which Inference is more reasonable and to persuade the jury to agree with him. `
Inferences are the primary distinction between the Forecast and the Close. While critical to the case, they are for the Close only. The Litigator does not disclose them to the jury during the Open—for three reasons.
First, since argument is not permitted during the opening statement and Inferences are based in part upon the argument of reason, they can and should draw a sustainable objection. Second, Inferences require persuasion and persuasion starts with trust—which the Litigator has not yet earned at that point in the trial. Finally, it would reveal the Litigator’s case strategy to his Opponent before the first witness is even called, and that is far too early. The Litigator wants the factual theory of his case to slowly dawn on his Opponent so that he only fully understands it after it is too late for him to do anything about it.
The Litigator views the Forecast like the book jacket of a mystery novel. It should pique the reader’s interest and invite him to turn to the first page and start reading, without trying to tell him the entire tale. The Story, on the other hand, is like the final few pages of the book, where the author fully unravels the mystery for the reader and resolves the conflict between the characters that drives the story. It should leave the reader with a feeling of satisfaction that he took the time to read the whole thing. That’s how the Litigator wants the juror to feel after his Close.
In his Forecast the Litigator might say:
. . . on a cold winter morning last January, a few hours before sunrise, two men climbed into a motorboat to go fishing in the lake. Both men where husbands, fathers and experienced fisherman—but only one man would come back to his family that day . . .
The Litigator’s objective with his Forecast is to get the jurors to start asking themselves questions. What happened on the lake? Why did only one man come back? Whose fault was it? These are the questions that he will try to answer in his case with Facts (through evidence) and in his Close with Inferences (through argument):
. . . on January 14th of last year, Bob Jones and Mike Smith went fishing together on Mike’s boat. It was a cold and dark morning, but they had been fishing buddies for a long time and both knew every cove and cranny of the lake by heart. Still, they managed to hit something submerged in the lake and capsize the boat. Both men went into the water, but only Mike made it back home— without a scratch on him—to claim that he had done everything he could to find his friend in the icy water before leaving him behind to die alone. But does that make sense? Mike had a cellphone with him. Why didn’t he call for help before he left? The reason is that he didn’t want help. He didn’t want Bob to make it back home, because Bob had something that Mike wanted, and he could only get it if Bob was gone . . .
The Litigator knows in his Forecast that he can tell the jury that both men went fishing but only one came back because those Facts will be easy to put into evidence. He also knows (but doesn’t reveal) some reasons that Bob’s death might be advantageous to Mike. He saves these Facts for his case so the evidence he needs to prove them will be easier to elicit. He also knows that he will never get Mike to admit his nefarious motives so that they can be established as Fact. He will have to persuade the jurors by Inference, and that must be done in the Close.
By starting with the Story, the Litigator grabs the jurors’ attention and motivates them to take action in his client’s favor. He provides them with a concise version of the factual theory of the case that they can take into deliberations. This also sets he table for the more difficult part of the Close, which is to teach them the legal theory of his case.
The legal theory is as important as the factual theory
When a Litigator has “good facts” it is easy for him to forget that he is still required to erect a legal framework into which he must weave his facts in order to prevail. This is one of the reasons that the Instructions are so important. The law matters just as much as the facts, and in some ways even more. Focusing on the Instructions helps the Litigator to remember that.
The Litigator who falls in love with his facts will end up with the judge reluctantly directing verdict against him or the jury (although they hate it) depriving him of a verdict. Or, and even more frustratingly, he may persuade both judge and jury past the law and still have the case sling right back on him on appeal. The Litigator must bear in mind The Seventh Principle Of Close: You can’t out-Fact the law.
Take our example of Bob and Mike. Let’s say the boat didn’t capsize and that only Bob tumbled into the water when it hit the log. Let’s also say tat Bob was injured and begged Mike to help him back into the boat. Finally, let’s say that Mike could both see and hear Bob thrashing in the water, even watched his head submerge, but still decided to turn the boat around and go back to the dock without trying to help him. Those are great facts for Bob’s lawyer, but they alone won’t get him anywhere without a supportable legal theory of the case.
Even though it was twenty-five years ago, I still remember learning this in the first week of law school: no matter how easy it would be do lend a hand, regardless of how big a moral disgrace it would be to stand on the bank and let a man drown in front of you, it is still not actionable because (in most states) there is no duty to rescue. And absent a duty, there can be no negligence.
What would be negligence? Mike’s failure to keep a reasonable lookout for submerged objects while piloting the boat, or his failure to have life jackets on the boat or to make Bob wear one if he did have them. Maybe even his decision to go out on the lake in the first place if it was foggy—that could be negligence. But there has to be something, something other than Mike’s (apparent) decision to simply take advantage of Bob’s distress by letting him drown, because that alone is perfectly legal if there is no accompanying breach of Mike’s common law duty of due care that proximately causes Bob’s death.
Regardless of how good the Facts are, the Litigator must have a controlling legal theory of the case that gets him to a verdict. Otherwise, the Story, no matter how compelling, is nothing but hot air. No Litigator can out-Fact the law.
I learned this lesson in a case between two creditors battling over the proceeds of the sale of encumbered property. My client had a deed of trust on a real estate parcel that he had taken from a customer to secure a debt. My adversary had a later-entered judgment against the same debtor that he had recorded against the same property. Post the recordation of the judgment, my client had foreclosed on his deed of trust but had ultimately taken a deed-in-lieu of foreclosure to settle the debt. My Opponent argued that the deed-in-lieu had merged with the deed of trust, leaving my client behind my adversary’s judgment in time. Technically, he was right.
But one of the elements of merger is intent—whether the parties had intended the separate fees to merge. My Opponent had put the underlying debtor on the stand to testify that yes, that is exactly what had been intended. My client (“Ed”) testified to the opposite, but he (of course) had skin in the game while the underlying debtor didn’t. Her testimony was damaging.
Here my Opponent made a mistake. He called Ed’s closing attorney on rebuttal to testify about the closing of the deed-in-lieu. I think he took that risk because Ed’s denial of intent to merge was fairly compelling, despite the testimony of the debtor. He wanted the jury to hear that Ed had an attorney and that his attorney had done everything by the book. My Opponent even asked the attorney if he had an opinion as an expert whether a merger had occurred, and he said “yes”. In his opinion it had.
While Ed’s closing attorney was testifying I noticed that the deed-in-lieu had been recorded on a Friday afternoon in July. On Cross, I took a guess and asked the lawyer (who was in his fifties) if he had a beach house. He said yes. I then asked him if he was in the habit of going there for the weekend in the summer. He said yes. I then asked him if he usually left for the beach on Fridays. He (though more suspiciously) admitted that he did. I then pointed out to him that this closing had taken place on a Friday in the summer, which made it likely that he was leaving for the beach that day. He said he couldn’t remember either way—which was good enough for me.
So I said, “this opinion you just testified to, that the deed in trust merged with the deed-in-lieu—that’s not something you shared with Ed on that Friday afternoon, was it?” I took some risk there, asking a question I didn’t know the answer to, but it was one of those moments—I was pretty sure it was worth it. Since he had already testified that he couldn’t remember whether he went to the beach, I thought he would say he couldn’t remember telling Ed about the merger. But he decided to be totally honest and said, “no, I didn’t”. Then (somehow) I was able to resist the temptation to ask him what I could better argue on Close as an Inference: “than how could Ed have intended to do something he didn’t even know existed?” After the verdict came back in Ed’s favor the jury told me that his lawyer had failed him. He was in a rush to get to the beach and hadn’t properly advised him.
The “evolving” legal theory of that case was that a merger had not occurred because Ed had not intended it and intent was a necessary element of merger. Because his testimony alone wouldn’t get there, I needed that extra push of his closing attorney (in his rush to get to the beach) not warning Ed of the danger of taking a deed-in-lieu when there was an intervening judgment on the books. That “evolved” into the factual theory of the case. It was an in-the-moment decision for me, but it worked.
I didn’t start out in that trial with clearly defined factual or legal theories, but I should have. The case was winnable, and I did win it, but I also got very lucky while my Opponent got very unlucky. This was in the days when I didn’t write out the Instructions until the night before the Charge Conference. If I had, I would have known that intent was an element of merger, which would have led me to identify the Facts I needed to prove with evidence and the Inferences I needed to establish through argument. As it was, I flew by the seat of my pants—and got lucky.
That was many years ago. Today, I would never do that because I start developing my factual and legal theories in the first five minutes of the initial client interview. While my factual and legal theories may evolve some through discovery, by mediation (and certainly trial) they are set. I know the Story that I will use to motivate the jurors and the legal theory I will provide them so that they can reach a favorable outcome.