Arguing last is a powerful advantage
Arguing last means being the last lawyer the jurors hear from before the judge reads the Instructions. In most states, the plaintiff has the right to argue last. However, some states (like North Carolina) allow the defendant to argue last if he has not put on a case. To be precise, what Rule 10 of the North Carolina General Rules of Practice states is that “if no evidence is introduced by the defendant, the right to open and close the argument to the jury shall belong to him”.
At the end of the Charge Conference, the judge will ask the party who has the right to argue last whether he will make an opening argument or reserve all his time for closing. That means that the plaintiff (if defendant has put on no evidence), has the right to make his Close in two pieces, an opening argument and a closing argument, with defendant’s Close sandwiched in between. I’ve never done it, never seen it done well by another lawyer and can’t think of a single good reason to do it. I reserve all my time for a single argument, and that is the last one. I want my voice to be the last one the jury hears before the judge reads the Instructions.
In terms of arguing last, the distinction between “putting on a case” and “introducing evidence” matters. Recall that the introduction of cross-case evidence is generally not permitted in North Carolina. In other words, on cross-examination in the plaintiff’s case, defense counsel cannot introduce evidence. He can use an exhibit to impeach a witness, but he cannot offer it into evidence for substantive purposes. If he needs that particular witness to provide the foundation necessary for the introduction of a particular document, defense counsel must wait and call him into his own case.
However, while this is the general rule, there are two ways in which defense counsel can introduce cross-case evidence. The first is with the consent of plaintiff’s counsel. In my experience, this usually happens by accident when defense counsel is unaware that he can’t offer evidence in the plaintiff’s case and doesn’t realize that doing so will act as a waiver of his client’s right to have him argue last.
In this scenario, the inexperienced defense counsel, thinking he must enter a document into evidence before he can impeach plaintiff’s witness with it, offers the document for substantive purposes rather than merely for identification. In response, plaintiff’s counsel may object or the judge himself might point out that cross-case evidence is not permitted. That’s embarrassing, but it’s only a lesson a Litigator has to learn once. It’s also better than the alternative, which is that plaintiff’s counsel “graciously” allows the entry of evidence into his case by defendant, and then argues at the Charge Conference that the defendant waived his right to argue last. That lesson has far more sting to it.
The other way that a defendant might introduce cross-case evidence (without the actual admission of a document) occurs with an experienced Litigator who presents “new matter” to the jury that is “not relevant to any issue in the case”. While there is no definitive test to determine when matter is both “new” and “not relevant”, where defense counsel has stretched the limits of Cross to the point that it would not be fair to allow him to argue last, the trial court can deem him to have offered evidence (even though he did not seek to admit a document), and will likely to be upheld.
The cases in which this has occurred generally feature the use by defense counsel of a document or photograph on Cross in a way that allows the jury to see or hear it sufficiently that it should have been entered into evidence. The court in those cases, by shifting the right to argue last to the plaintiff, is essentially determining that the defendant should not be allowed to introduce evidence through the back door on Cross—and then claim to have put on no case—in order to argue last. It would be like having his cake and eating it too.
This is a risk of which the Litigator must be wary on Cross as a defendant if he has any intention of forgoing the presentation of a case in order to argue last. Judges give wide latitude on Cross, even under the Federal Rules of Evidence which restrict cross-examination to matters raised on direct. But the Litigator who pushes the envelope too far may find himself arguing first without the advantage of having put on a complete defense case.
Conversely, when he is the plaintiff, the Litigator should be ready to use this risk to his advantage. If defense counsel starts trying to backdoor evidence in through his case on Cross, the plaintiff’s counsel has to make a very quick decision. If he objects and the judge sustains, then the opportunity to seize final argument is lost. But If he doesn’t object his Opponent may get damaging evidence before the jury without having to put on a case and still argue last, because there is no guarantee that the judge will deem it as new matter that is not relevant to an issue of the case.
In fact, in my experience as a plaintiff, I have never persuaded the court to allow me to argue last where my Opponent has rested without putting on a case—even where he has pushed the cross-case evidence restriction pretty far. My suspicion is that most judges are as acutely aware as I am of the powerful advantage of arguing last and thus require a significant reason to take it from a defendant who puts on no witnesses.
Why is arguing last so powerful? Because of recency bias, which is the tendency of people to remember best (and be influenced most) by what has happened most recently. Recency bias effects many aspects of human life, from employee performance reviews to the charting of political trends. Regardless of the context, it results in decision makers overvaluing what has just occurred at the expense of what occurred previously.
Even though there is a very small time gap between the parties’ summations, recency bias has a strong effect on the juror’s decision making process during deliberations. This is yet another reason for the importance of the Instructions—it is the last thing they will hear before they retire.
Knowing that he is (at best) the penultimate voice the jurors will hear, the Litigator makes every effort to take advantage of recency bias by arguing last. The Seventh Principle Of Close is Argue last, if at all possible.
Be ready to object while avoiding being objectionable
Early on in my career I tried a case against a very experienced lawyer. It was a complicated case that had pushed my rudimentary skills to the limit. Before my Close I asked my Opponent (“Don”) about a particular Fact that I intended to argue that concerned me because I wasn’t sure that I had gotten it right. My trial notes were sketchy and I was completely exhausted by the end of the Charge Conference. Inexperienced as I was, I was afraid that Don might object in my Close so I asked him if he remembered the Fact that concerned me in the same way that I did.
He seemed surprised by my question, and in retrospect I realize how odd it was for me to have asked it. But I remember Don’s answer because it has stuck with me ever since. He said, “look, If you argue a fact not in evidence the jury will catch it—that’s why there are twelve of them in the box. And that will be to my client’s advantage, so I’m not going to tell you whether you’ve gotten that right or not. But I can tell you that even if you do have it wrong, I won’t object because I never object in another lawyer’s closing unless he says something objectionable.”
“Well,” I said, “that’s what I’m trying avoid. How do I do that?”
“Don’t be objectionable.” He responded.
“How do I do that?” I asked. Don just smiled and shrugged.
I thought Don was trying to mess with my head a little to throw me off my game, but through experienced I have realized that he had given me good and truthful advice. If you don’t want your Opponent to object in your Close, don’t be objectionable and what constitutes objectionable is difficult to say.
As it happened, Don did not object during my Close that day, so I must not have been (too) objectionable. And since then, it has rarely happened. I hope that means that I’ve generally avoided being objectionable. Maybe it also reflects that most Litigators believe what Don told me that day—that the jury will catch you if you misstate the facts in your Close and that it will be to your client’s detriment. Hopefully, it also reflects my determination not to be a jerk, which is the best way I’ve found not to be objectionable.
Likewise, I have rarely objected during the Close of an Opponent, but there are a few times I should have and didn’t. Like every other aspect of trial work, I had to learn this the hard way. Once I tried a case in a very small county on the other side of the state. My Opponent (“Bob”) was in his late sixties and his office was right next to the courthouse. In voire dire it became apparent that if I struck every juror peremptorily (or the judge did for cause) because he knew Bob, that there would be no jury. Everybody in town knew him in one way or another.
After calendar call for the trial one of the other local attorneys took me aside and warned me to be careful about trusting Bob. Very quickly after the trial started, I found out why. Bob’s zeal on behalf of his client was admirable, but his willingness to bend the rules to ends of zealousness was excessive.
During his Close, Bob told the jury that they shouldn’t be swayed by “a lawyer from Charlotte who had driven into their town in his big fancy car”. He also urged them to render a verdict for his client because he was their neighbor, while my client was “a stranger from another county”. Not only did both statements meet Don’s definition of being objectionable, they were also delivered with a stunning level of malevolence. Although I had already endured a week of shifty tactics from Bob, I was still stunned into silence—which may have been Bob’s design. It was an affront that called for a response and I didn’t make one.
After his Close, when the jury had left the room, I finally voiced my objections to Bob’s statements to the judge. He responded, quite rightly, that there wasn’t anything he could do about it at that point and that I should have said something at the time, particularly given that he had seen my car and it was neither big nor fancy.
And, that is exactly what I should have said to the jury. I should have objected when Bob mischaracterized the size and quality of my car, not on the grounds that it was improper for argument (which it clearly was), but that it just wasn’t true. I drove a beat up old minivan that smelled like diapers and cheese crackers, and telling the jury that would have been a great way to blunt Bob’s ham-fisted attempt to portray my client (and me) as rich arrogant outsiders who didn’t deserve justice. But I missed the opportunity because I wasn’t ready to object. And I wasn’t ready to object because I wasn’t really sure just what objectionable looked and smelled like.
After my experience with Bob I resolved to object whenever an Opponent said something objectionable during his Close without worrying about a having a precise definition of just what objectionable meant. I did this by applying the same jerk test to my Opponent that I applied to myself to keep from being objectionable.
Thanks to Bob, I now object If my Opponent asks like a jerk. I’ve only had to do it a few times, but I haven’t regretted it yet.
Make every single word count
Brevity is a critical virtue in the Close, which is why the Fourth Principle Of Close is to never go past thirty minutes. While that’s an effective rule of thumb there will be times, due to the complexity of the case, that a Litigator will have to break it. He shouldn’t simply stop talking when the thirty minute mark comes or leave out critical points just to meet it. Conversely, he shouldn’t keep talking (if he doesn’t need to) just to get to thirty. The Litigator should Close to the standard of effective persuasiveness, not to the hands on the clock. He does this by adhering to the The Eighth Principle Of Close: Never waste the jury’s time.
To keep himself from wasting the jury’s time the Litigator’s first step should be to view it as precious. Judges, because they are in court more often than lawyers and (in many jurisdictions) have to run to gain and hold their office, have a firm grasp on the value of the jurors’ time. They adhere rigorously to the break schedule that they announce at the start of the trial and apologize to the jury every time there is an appearance of delay in the proceeding. Although I have never been a judge, my belief is that they do this out of their sincere respect for each juror’s time. They treat it like water in the desert, never casually letting it spill away into the sand.
Viewing the jurors’ time as precious will guide the Litigator away from the temptation to pander by thanking them for their service, extolling the importance of jury duty in general and complimenting them on how hard they worked or how carefully they listened. Those things are fine for the jury interview after the trial is over, but they have no place in the Close because they don’t help solve the Juror’s Problem, which is to render a just verdict in the shortest amount of time that is reasonably possible. Every word out of the Litigator’s mouth during the Close should be calculated to help the jury solve it’s problem. That is all that counts.
Likewise, the Litigator should not repeat himself. Avoiding repetition is a matter of confidence, both in oneself and the jurors. The Litigator must have enough self-confidence to believe that his words are so clear and persuasive that he doesn’t have to repeat them. He must also have enough confidence in the jurors to believe that they only need to hear something a single time to absorb it sufficiently. In this respect it helps to remember that there are twelve of them for a reason. Although no single juror may hear, understand and remember each of the salient points of the Close, as a unit they will. During deliberation they will cross-level their knowledge.
The final point of the Close is a similar one that I made regarding the asking of leading questions on Cross. It takes practice to be excellent. The more Closes the Litigator makes, the better he will get at it.