Cooley professor discusses 'closing arguments'

By Roberta M. Gubbins

Legal News

"There is no one great closing argument because everyone has their own style. If you try to present a closing argument in other than who you are, it will affect your performance and your credibility," said Cooley Professor Tony Flores to the members of the Ingham County Bar Association criminal law section at the their monthly luncheon recently.

"I would suggest to you that closing argument starts in voir dire (preliminary questioning of a juror to determine competency to hear evidence).

"Some judges will give you time to teach, reflect and educate during the voir dire so you can get a discussion on the things you want the jury to discuss--you are teaching them the framework of your case.

"Everybody, including the jurors, has a framework for the case. That framework, of itself, is usually solidified, in my opinion. We have to find that framework and fit it into closing argument."

"The rules say to find the objective trier of fact in a juror. Realistically, we are trying to find an objective trier of our case."

"The wave of future is to find the art of storytelling. There is no right or wrong way with closing argument. Some believe presenting the facts chronologically is the right way.

"I would suggest that you start with impact. You start with the most impactful fact you have in the first 60 seconds--what happened in that fact pattern that really worked during the trial. Does that mean you may have to change your script for closing argument?

"I am not a big fan of a script--I am a fan of writing an outline that can be flexible so that what actually happens in trial can be used in your closing argument.

"You are the writer, the actor, and producer--you can take your fact pattern and rearrange it. What was the most compelling piece of testimony that came out--that flexibility has to be part of your performance.

"I am convinced that in both openings and closings--after the first three to five minutes, the minds of the jurors begin to wander. Jurors are not conditioned for the amount of focus we ask of them.

"As to time frames I am not a stickler but I would be hard pressed to listen to more than an hour. If your closing is more than an hour, you better have the substance, the facts and the visuals to back it up.

"Thematic development--use the most persuasive part of your argument in the first three to five minutes of your closing. The theme sets the stage for everything you say.

"If you are simply throwing facts at the jury, fact after fact with no story or no theme, it is like telling all the specs of a car, I am not a car guy, it means nothing to me--but if you put it in a commercial driving around the country, then I can see it-- the facts are in the context of the story.

"Part of being a trial lawyer is using your opponent's thematic development against them. What did they say that I can use against them. In order to do this, you have to be able to write down things that happen in trial that you can incorporate in your closing.

"That's what you have to do during witness testimony, when your client is talking to you, when the detective is talking in your ear--these bell words of credibility--you have to take them down so you can use them.

"Credibility as an advocate--there is no recipe for this. The question is 'do you appear professional? Credibility in the courtroom may be professionalism, treating people with respect, appearing to believe your case, if they (the jurors) believe that you believe what you are telling them--those things probably do.

"But what a juror might find credible in Marquette might not be the same as what a juror finds credible in Detroit.

"What we (lawyers) say when we enter the courtroom is 'trust me.' We have developed a reputation for being spin masters, for manipulating the facts.

"Even if the lawyer does not appear to be likeable, if they appear to be a credible person who happens to be a lawyer, they will be successful. I think the flipside is a problem--if you try to be a credible lawyer first, jurors are suspicious of that."

Power point: Asked about use of power point, Flores said, "I think power point and visuals are the wave of the future. Power point is a tool to support your credibility as an advocate. But, when we overuse power point we get a weather man dynamic--we get everyone is looking at it and we are no longer the center of attention.

"I am a fan of using power point for such things as time lines or finding placement for photographs in evidence--put up a picture and find three points to visually connect the picture to your story."

Published: Thu, Nov 12, 2009

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