Bad Habits That Kill Your Closing: Examples From the trial of former police officer Derek Chauvin

Intro

On a stage for all the world to see, the closing arguments in the trial of Derek Chauvin were...underwhelming. They lacked the powerful delivery that great speakers utilize to persuade their audience on a logical and emotional level. Many lawyers rely on bad habits that detract from well reasoned arguments. And the attorneys in this case demonstrated some of them. This article isn't a commentary about the attorneys or the case though. Rather, this article identifies a few of these bad habits, addresses why they are not effective, and suggests better alternatives. As with all things trial, there are many different ways to effectively close. Evaluate this article using your common sense and knowledge of what works for you.

Turning the podium into a ball and chain

Standing at the podium for the entire closing is generally a bad practice. A traditional reason is that the podium acts as a barrier between the lawyer and the jury. Another often used reason is that the lawyer looks like he or she is giving a speech. But there are more compelling reasons. First, you can't speak to the entire jury. The podium is usually centered, facing the middle jurors. By standing at the podium, the jurors on the left and right sides are neglected. And making eye contact with them is not a sufficient substitute. Tactically moving and positioning yourself at the left, middle, and right sides of the box is a powerful way to make each juror feel like you are speaking directly to them. Which in a way is accurate.

Second, addressing the jury from different positions allows you to deliver a dynamic closing. It's movement with purpose. Every step corresponds to a different portion of the closing. For example, stepping into a different position is great for transitioning from one point to another. Just as we use the last sentence of a paragraph to transition to the next, stepping between positions is a good way to notify the jury that you're changing topics.

Sticking to the script

If you have your head buried in paper for most of your closing, the jury will not be very receptive. Why? Well if you're staring at paper then you're not looking at the jury. Making eye contact with your audience is essential to any type of persuasive communication. Furthermore, sometimes a juror's body language will speak volumes. For instance, a juror who nods her head up and down communicates agreement. A juror slowly nodding her head trying to stay awake communicates boredom. Thus, the jurors' body language is often useful to gauge the jury's reception of your argument. You can't observe their body language if you're not looking at them. Finally, it turns the closing into a lecture. Instead of speaking to them, you're speaking at them. The jury does not want to be lectured. They want to hear why they should render the verdict you are asking for.

The M O N O T O N E mute button

Speaking in a monotone, flat voice will make it difficult for even the most alert juror to pay attention. They will quickly mute the lawyer out as they focus their thoughts on something else. Thus, it is important to modulate your voice. Modulating your voice is simply adjusting its pitch, tone, or volume to convey a specific meaning or effect. It is necessary to emphasize points, attack points, and to keep the points interesting. A flat, toneless style will fall on deaf ears. Going back to body language, a juror staring at the lawyer with a fixed, blank gaze, has likely hit the mute button. If you're still not convinced, watch this clip from Ferris Bueller's Day Off and compare it with Martin Luther King Jr. giving his iconic "I Have A Dream Speech" on the steps of the Lincoln Memorial.

The non-argumentative closing

It is called a closing argument for a reason. It's the one opportunity we get to argue. The closing is the time to offer all the reasons why the jury should make certain inferences from the evidence. We then use those inferences to support the conclusions advancing the theory of our case and/or undercutting our adversaries position. It is not called a closing summary. It is not useful or effective to just summarize the evidence.

A summary is not an argument. A summary doesn't connect the logical dots for the jury. It doesn't convince them that your conclusions are the right ones. A summary alone is not persuasive. It needs to be followed by an argument. Sure, jurors, like most people, don't have photographic memories. But summarizing the evidence won't change their memory. Arguing the facts and inferences however, can reshape their view to align with your position.

Believe it because I say so

On the opposite side of the spectrum, stating conclusions without the logical reasoning supporting them bypasses the argument. The jury is not going to accept a conclusion because you say so. Saying Mr. Jones is guilty over and over again doesn't make it so. Jurors are unlikely to supplant their conclusions with yours without a basis. Explaining how the evidence show Mr. Jones is guilty provides that basis.

Closing in the wrong direction

Too many attorneys start the closing by thanking the jury for their time. Some go on to explain how important their service is, discuss the constitution, and describe how the system wouldn't work without them. Sure, this is all true. But this is perhaps one of the worst ways to begin the closing. First, the judge will thank them if he or she hasn't already. Second, the jury's time is precious. They heard the evidence and are ready to hear your arguments so they can start deliberating and finally speak about the case. Get to the point right away. Third, it's easy to appear disingenuous. You have an interest in the outcome. Fourth, when it's the defense attorney thanking them, it seems even more disingenuous. The jury is not there because the defendant asked to be prosecuted. Fifth, you want to capture the jury's attention right away. Thanking them profusely has the opposite affect.

Even worse though is following up with a disclaimer that the closing is going to be long because there is a lot to cover and that the lawyer is long winded (or something like that). Telling the jury at the outset to expect a painfully boring closing is anti-persuasive. Further, it incentivizes them to zone out. How can the jury be engaged in a closing that the lawyer told them is going to be long winded. It may even seem like a good way to build rapport by showing them that you are have flaws just like every other human. But it's not polite or helpful. It's counterproductive and self defeating. Get right to the point.

Conclusion

This article provides a basic primer intended to help fellow trial lawyers avoid some of the bad habits that hinder effective communication. We work hard to prepare a well reasoned closing; sometimes overlooking the importance of delivering it. A well reasoned argument means nothing if the jury isn't listening. Hence, delivery is just as important as the content. Entire books are devoted to this subject, and this article just scratches the surface. Plus, this article doesn't cover the myriad of useful techniques the prosecutor utilized. However, the bad habits outlined in this article are common. And the reasons why they are not helpful will hopefully persuade you to avoid them. None of the points made in this article are original. They are principles I have extracted from numerous books, and my own experience.