“Closing argument is the time to use the lawyer’s skill as a teacher, purveyor of the truth, and speaker. It is the phase of the case when artistry of the lawyer’s accumulated education, experience, intelligence, and ability can and should exhort the strength of the case or the validity of the defense.”
Generally, the courts give attorneys wide latitude when making closing arguments. However, there are limitations and it is the duty of the advocate to vigorously argue the case within the bounds of the law. Prior to conducting any closing argument, every lawyer should have a good understanding of the process, which arguments are permitted and which arguments are not allowed. Armed with this knowledge, the advocate can zealously argue without worrying about running afoul of the law. This will allow you to clearly present your case to the jury, attack (yes, attack) the other side’s arguments, set the framework for the juror’s deliberations and empower the jury to do the right thing (e.g., find in your favor).
II. APPLICABLE LAW
KNOWLEDGE OF THE LAW AND THE PROCESS HELPS
Understanding the process of closing argument and the law behind it allows you to be more comfortable during your argument. This enables you to focus on your case and be more persuasive. If you haven’t conducted a number of closing arguments yourself, or watched a number of closing arguments by well-respected lawyers, I urge you to do this. This will give you the level of comfort needed to be persuasive. In addition, an understanding of the law pertaining to closing arguments will aid you in this endeavor.
THE RIGHT TO OPEN AND CLOSE
“In civil actions, where the burden of proof rests with the plaintiff, the plaintiff is entitled to the opening and concluding arguments, except that if the defendant introduces no evidence or admits a prima facie case, then the defendant shall be entitled to open and conclude. USCR 13.4. While many will disagree, I believe that you should take full advantage of this opportunity. If you have the burden of proof, you should take a short amount of your allotted time at the beginning of the closing phases of the trial, and save the majority of your time to conclude. O.C.G.A. 9-10-180 limits argument to two hours per side, however, the Uniform Rules For The Superior Courts further limit each side to one hour. USCR 13.1. The rules also provide for an extension of time. Therefore, if you need or want extra time for your closing argument, you should ask the judge for an extension of time and state the reason that additional time is needed. USCR 13.2 For instance, if you are opposed by a number of adverse parties and each will be arguing during close, the judge may increase the amount of time that you can argue. You should cover this with the judge well before your closing argument so that you can properly prepare. Furthermore, you should clearly inform the judge how much time you will take in your opening and how much time you will save for your concluding argument. Then, make sure someone notifies you when your time has expired because it is easy to exceed your self-imposed time limit without noticing.
LIMITATIONS OF PROPER ARGUMENT
The scope of closing argument is controlled by the sound discretion of the trial court and will not be disturbed absent manifest abuse of discretion. Banks v. Kilday, 88 Ga. App. 307, 76 S.E. 2d 642 (1953). “Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke counsel and by all needful and proper instructions to the jury endeavor to remove the improper impressions from their minds[.]” O.C.G.A. 9-10-185. It is perfectly acceptable and quite effective to suggest reasonable inferences from the evidence. Metts v. State, 571 S.E.2d 508 (1999). However, your goal during closing is to be as persuasive as possible within the bounds of the law. After all, you would not have taken the case that you are trying before the jury unless you believed in it 100%. The following arguments, among others, are not allowed:
- The Golden Rule Argument—Asking the jurors to place themselves in the shoes of a party is reversible error, if objected to. Myrick v. Stephanos, 220 Ga. App. 520, 472 S.E.2d 431 (1996).
- Reference to the parties’ financial status or ability to pay. American Oil Co. v. McCluskey, 118 Ga. App. 123, 162 S.E.2d 853 (1968), rev’d on other grounds, 225 Ga. 63 (1969);
- Personal beliefs of counsel. Bolden v. State, 272 Ga. 1, 525 S.E.2d 690 (2000);
- Reference to Inadmissible Hearsay—Even if hearsay was admitted into the trial without objection, it is still improper to make reference to it during closing argument because hearsay is without probative value to establish any fact. Williams v. Piggly-Wiggly Southern, Inc., 209 Ga. App. 490, 433 S.E.2d 676 (1993);
- Send-a-message Arguments—Unless the arguing party is seeking punitive damages, it is not proper for counsel to implore the jury to “send a message” to the liable party because this is equivalent to asking for punitive damages. Shaw v. Brannon, 253 Ga. App. 673, 560 S.E.2d 289 (2002);
- Appeals to Sympathy or Prejudice—Counsel’s attempt during closing argument to induce sympathy or prejudice is reversible error. Veazey v. Glover, 47 Ga. App. 826, 828, 171 S.E.2d 732 (1933).
- Reference to Insurance—In an ordinary negligence case, and reference to insurance coverage during closing argument is improper. Clemmons v. Smith, 246 Ga. App. 643, 540 S.E.2d 623 (2000).
The following arguments are allowed during closing:
- References to the law—It is perfectly proper for counsel to refer to legal principles that the court is planning to charge. Garrison v. Rich’s, 154 Ga. App. 663, 269 S.E.2d 513 (1980). In fact, counsel may read portions of the court’s charge to the jury. However one should be certain that the charge will be given and that the attorney’s statement of the law is accurate. See Miller v. State, 243 Ga. App. 764, 533 S.E.2d 787 (2000). Stating to the jury what important law you believe the court will charge lends credibility to the lawyer and tends to reinforce that you are the “purveyor of truth.”
- Suggesting permissible inference from the evidence—This is a powerful way to tell your story during closing argument. If your argument is told in the form of a story and you weave in references to evidence, you are allowed to suggest to the jury what inferences can be made from the evidence. Bolden v. State, 272 Ga. 1, 525 S.E.2d 690 (2000). This method provides a nice road map to use during your closing argument. It allows a smooth flow and ensures that you cover all of the important evidentiary issues and what the “correct” inference should be.
- Per Diem Arguments—When arguing damages, it is sometimes effective to suggest that your client’s pain and suffering be measured in specific time increments and then multiplied by a reasonable amount of money for each unit of time. This is proper because it is not presenting evidence to the jury, but rather is simply drawing an inference from the evidence that has already been presented on pain and suffering. See Mullis v. Chaika, 118 Ga. App. 11, 162 S.E.2d 448 (1968).
III. CLOSING ARGUMENT CONSIDERATIONS
- How much time to ask for?
- What portion of your time to reserve?
- What to lead off with?
- Thanking the jury for being there?
- How much time to spend on liability, damages or other issues?
- Planting seeds in the juries mind, is it worth it?
- What arguments do you lead off with?
- How much time do you spend on negligence vs. damages?
- How much attention to give to your opponent’s arguments?
- Ask rhetorical questions?
- Story telling and analogies?
- Be perceptive and honest with yourself.
- Use of diagrams, charts, blackboards (make them count).
- Objections to improper arguments (make them count)?
- How to empower the jury?
- Well-reasoned summation vs. impassioned argument?
- One day in court argument?
- Anticipate and address your opponent’s rebuttal.
- Ask for what you want!
Attorney Robert J. Fleming is the author of this article on closing arguments in Georgia. He has been handling wrongful death cases, automobile accident cases, personal injury cases, dental malpractice and medical malpractice lawsuits for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 20 years in and around Atlanta, Georgia and its surrounding areas, including Alpharetta, Austell, Avondale Estates, Chamblee, College Park, Conyers, Duluth, Decatur, Doraville, Hapeville, Johns Creek, Jonesboro, Lawrenceville, Norcross, Peachtree City, Riverdale, Roswell, Sandy Springs, Stone Mountain, and Smyrna. If you have been seriously injured and would like quality legal representation, contact Robert J. Fleming directly on (404) 525-5150 or contact us online.