One of my partners is about to make final argument in a hospital malpractice case he has been trying for several weeks.We discussed the question of final argument and how it should be concluded because the opening and concluding of a final argument is, in my view, very important. While one can be spontaneous in argument the beginning and the end merit careful thought and preparation. It is a matter of first impression and a matter of what they hear last from you which sets the tone for the jury. As a result, I decided to review some arguments given by me and look at argument materials I have kept. I thought I’d share a little  about the subject with you.

First, I’d like to point out  the views of the great plaintiff’s lawyer Moe Levine. I had the privilege of participating in a small group week long seminar with Moe many years ago. I attended it after hearing him lecture several times. I was so impressed with his wisdom and advocacy skills I became a dedicated fan of Moe and appropriated much of his original ideas. Here’s Moe’s idea about the jury concept:

  1. To motivate the jury they must feel their verdict is a “meaningful verdict.” That means a verdict which they will be proud of when they go home. One they want to tell their neighbors about. Therefore, there must be a reason why the verdict is one they will be proud to have rendered.
  2. They need to be told that they are the “voice and conscience” of the community. They set community standards and speak for the community. That means what they do is very important and has meaning beyond just the participants in the case.
  3. It is true they must follow the  law, but while the judge gives the law, it us up to the jury to determine the true facts and  apply the law in a way that justice will be  done & a just verdict will result.  There is a  subtle jury nullification idea in this idea and they should be empowered to do what they believe is right under the law and evidence.
  4. It isn’t enough that it is the right verdict. To be proud of the verdict it must be the right verdict for the right reason.
  5. It’s not what was taken away that is important. It’s what the person was left with that is important. If you take $5 from a wealthy person, it is insignificant, but if you take $5 from a poor person ir ia significant.

Here is an example of how I have concluded my final summation in an injury case. It’s not perfect by any evaluation, but it is an actual example of one way to conclude an argument:

Well, I’m done ‑‑ I would like you to carefully consider doing what your conscience thinks right in this case, whether you agree with me or not. Whatever you think is right, I urge you to do it, because I believe in the jury. system and the American justice system and the fact that the system makes people accountable for what they do, and I want ‑‑ this is one of the most important cases I’ve ever tried. I want you to be proud of whatever you do ‑‑ even if you don’t do what I suggest, even if you disagree, please make sure it’s what your conscience tells you. I want you to look back when it’s ten years from now and you’re having a cup of coffee and you think, well, whatever we did, it was right. Okay? Because I think it’s the voice and conscience of the community in every respect, and I want you to ‑‑ when you’reevaluating this, please, keep this in mind. This is the hard part. He isn’t always going to be this small, cuddly little boy. He is someday going to be a grown man of 40 years old, people will shun, reject, and avoid. He will have nobody to love him.

Please, whatever it is, be just. Thank you. You’ve been great. Let me tell you one more thing. I know, I can hear you saying, for goodness sakes, will you stop. I can almost hear you saying that. But you see, I am worried about, what if I didn’t do it right, I am afraid it might be wrong Can I say this to you, without sounding like I’m trying to ingratiate myself. Look, I know and I think everybody knows what you have gone through here has been an enormous sacrifice. I know we were supposed to finish last week, and some of you had commitments, and I know the jury room is a terrible place to be when we were out here arguing and you don’t know what’s going on and the chairs in there are bad. It’s a bad little room and you want to say to the lawyers, get on with it, why don’t you ever ask this question, this is what I want. I know all that, and I appreciate your attention. I truly do appreciate everything you’ve done. I won’t be mad at you no matter what you do. I believe in the jury. I trust you and believe in you. Sally and I will be waiting to hear your verdict, and I still am scared, and I thank you.


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