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Closing Argument Considerations for Personal Injury Claims in Georgia

Helpful Tips From Matt Wetherington on Closing Argument

 

In the 1986 science fiction novel Speaker for the Dead, author Orson Scott Card writes about the fictional profession of being a Speaker.  A Speaker researches the complete life of a deceased person to enable the Speaker to tell the person’s story, with all the small triumphs, shortcomings, and tragedies intact.  The purpose of the Speaker is not to glorify the deceased, but to help everyone, even those closest to him, to understand the life lived and understand the intentions of the deceased from his perspective.  In the novel, Speakers are revered with the same respect afforded religious leaders, because it is universally understood and agreed that the Speaker is attempting one of the most difficult missions possible.  Speakers research for several years before telling the story of a person and the final product is considered definitive.  Similar to Speakers, trial lawyers are called upon to articulate the full story of a client and the impact a significant life event has had on his or her life.  Unlike speakers, we do not have the luxury of singularly focusing on a single case for years and we certainly do not enjoy the universal admiration and respect given to a Speaker.  Nonetheless, our calling to seek truth and pursue justice for our clients is just as important and the ability to effectively speak truth to power requires careful preparation leading up to and during trial, including excellent motions in limine, voir dire, opening statements, evidence, examinations, and then ultimately the grand finale in the form of a closing argument.

This paper will outline some general tips regarding the structure, preparation, and execution of a persuasive closing argument that is calculated to seek complete compensation for an injured party.  In doing so, we will survey the latest literature from trial consultants and behavioral studies, examine the general legal principles underlying the scope of a closing argument, and discuss tactical considerations in crafting a closing argument.

GENERAL LEGAL PRINCIPLES

Georgia has an excellent approach to closing arguments in that it affords attorneys wide latitude in the scope of topics and substance of argument that may be used at trial.  Adkins v. Flagg, 147 Ga. 136, 93 S.E. 92 (1917) (“Counsel is given wide latitude to argue the case during closing arguments and the range of argument is within the sound discretion of the trial court.”).  While other jurisdictions have placed unnecessary strictures on closing arguments, Georgia has primarily left limitations to the sound judgment of the Court.  Id.  Although counsel may not refer to facts not in evidence or interject prejudicial matters, counsel may discuss and argue all reasonable inferences and inductions from the evidence.  Lassiter v. Poss, 85 Ga. App. 785, 790, 70 S.E.2d 411, 415 (1952) (citing Mitchum v. State, 11 Ga. 615 (1852)).

In civil actions, where the burden of proof rests with the plaintiff, the plaintiff is entitled to the opening and concluding arguments.  Uniform Superior Court Rule 13.4.  There are several exceptions to this rule, most notably that if the defendant introduces no evidence or admits a prima facie case, then the defendant shall be entitled to open and conclude.  Id.  Under most circumstances, and as discussed at length below, the Plaintiff should present a full opening and always reserve time for rebuttal.  In doing so, one attorney may handle the first portion of closing with another attorney handling rebuttal.  O.C.G.A. § 9-10-182; Goforth v. Wigley, 178 Ga. App. 558, 562, 343 S.E.2d 788, 791 (1986).

In giving the closing argument, counsel is limited to two hours per side under O.C.G.A.   § 9-10-180, although a request may be made for additional time.  Many Courts limit closing arguments to well under the allotted time, and even when the full time is available, it can be ill-advised to use it.

STRUCTURE OF A CLOSING ARGUMENT

The most important advice proffered by this paper is simple:  have a plan and a goal.  In most instances, the execution of counsel’s plan will begin with voir dire and an opening statement where the themes and expectations for the case are first presented.  Therefore, your closing argument should simply reinforce those ideas.  As renowned trial consultant Charli Morris puts it, “It’s too late if you wait.”[1]  The closing argument should not be used to introduce new ideas or themes.  “Lawyers who wait to bring all of their best arguments to closing argument are probably too late.  After opening statements, jurors spend the majority of their time and energy collecting the evidence that is most consistent with their initial impressions and expectations (and ignoring, rejecting or building arguments against evidence that is inconsistent with their early views).”[2]

Litigation consultant Susan Macpherson adds, “Your goal should be to connect the charges of the court and the verdict form to the evidence in the case.”  Half of the battle is to argue for easy to understand jury charges and a simple verdict form.  The other half is to help jurors answer the key questions posed to them.  “Jurors have spent their entire lives resolving questions in their own paradigm.  Your case demands they suddenly answer questions from an entirely new perspective: the law as defined by the juror charges,” MacPherson warns.

Juror consultants differ on whether to use a formal structure or outline with key elements.  Regardless, of how counsel organizes the closing argument, it is imperative to craft the argument in a way that flows logically and encompasses all of the essential elements of a strong closing argument in a persuasive and easily understood manner.  In doing so, counsel’s argument will have rhythm and pacing, which will breed confidence in himself and the attention of jurors.  For most plaintiff cases, the key elements/structure will break down something like this:[3]

  1. Introduction
  2. Issues
  3. What really happened and proof thereof
  4. Basis of liability
  5. Damages
  6. Jury instructions
  7. Refuting the other side
  8. Conclusion

Individual cases may require something different, but this outline will hit almost everything and will form the basis for our specific advice.

 

Introduction

Traditional closing argument advice has been to begin with commending the jurors for their patience and willingness to serve.  A survey of recent trial advocacy and human behavior papers encourages counsel to simply get to the most persuasive words as quickly as possible.[4]  As former presidential speechwriter William Safire puts it, the introduction is simply a chance to “Shake hands with your audience… get your smile, then get to work.”[5]  Jurors have a limited attention span, particularly after a lengthy trial, so it is important not to squander their most attentive minutes.

 

Issues

After getting your smile, it is time to reiterate the theme and distill all of the facts of the case down to a few single questions or issues—leaving a fine bourbon that goes down smooth and leaves the jurors wanting more.  For example, “The only question you have to answer is this:  would John Doe’s death had been prevented if Tire Company had warned the public that its tires fell apart after six years?”  Or, “Had Trucking Company simply followed up on the complaints it received about Driver, would this wreck have occurred?”  Here, the closing argument is not relying on or reciting any facts of the case.  Instead, you are simply laying the groundwork for an enlightened appeal to the beliefs and values of the jurors.  A good argument rarely changes the beliefs of a person, but it can change their perspective on how counsel’s evidence is consistent with their pre-existing beliefs.

 

What Really Happened and Proof Thereof

Marshaling justice to your side involves more than simply stacking facts on top of each other.  It requires argument.  The closing argument is not the time for mere recitation of evidence.  The jury knows (or at least thinks it knows) all of the important evidence.  Here, you will directly articulate the conclusions of the evidence, i.e. “Truck Driver was speeding and driving recklessly” or “Tire Center ignored every safety guideline for repairing a tire.”  Then, working backward, explain how all of the evidence fits together and why certain evidence is significant.  Using demonstrative aids, excerpts from testimony, and key documents, develop a cohesive story for the jury that culminates in a call to their core values and plight of the plaintiff.

 

Basis of Liability

This is where counsel explains how the facts of the case logically support the theory of recovery.  For example, “the evidence proves that Truck Driver was intoxicated.  Georgia law says that truck drivers shouldn’t drive intoxicated.”  Georgia courts allow parties to talk to jurors as “regulators of the community” during closing argument.[6]  This includes citations to statutes, public policy, and legislative intent.[7]  Using these tools, counsel may discuss how the legislature clearly intended to protect the plaintiff from the exact harm caused by the wrongful actions of the defendant.  David Ball describes this approach as going beyond simply proving the defendant did something wrong.  Ball advises, explain the broader implications of the defendant’s actions and the need to protect clients, through full compensation, for “bigger reasons.”

 

Damages

Juror consultants recommend concluding the liability phase prior to discussing damages because it is both chronologically consistent and allows you to end the main portion of the closing argument on an emotional high point.  There are voluminous papers and books written on presenting damages to a jury.  There has been little consensus on the “best” practices simply because there are many ways to successfully present damages evidence and it is often difficult to tell whether a five million dollar verdict could have been a ten million verdict if the damages were presented differently.  Nonetheless, a survey of recent literature demonstrates consensus on one key point:  when talking to a jury about damages, it is crucial to be as specific as possible and to clearly delineate what the jury is supposed to be evaluating.  Thus, it is very helpful to break the damages claims down into categories that can be discussed separately and assigned a value.  The following are the typical categories of damages:

 

  1. Medical expenses
  2. Future medical expenses
  3. Lost income
  4. Future lost income
  5. Nature and extent of injures
  6. Physical disability and disfigurement
  7. Pain and suffering
  8. Future pain and suffering

 

In discussing each of these categories, it is important to emphasize the point that the verdict rendered will be the only opportunity the Plaintiff ever has for full compensation.  The scarcity principle holds that something is more valuable when it is rare.  By emphasizing the unique opportunity the verdict represents, jurors will be more likely to take their responsibility seriously and render a complete verdict that includes full compensation.  This principle is particularly helpful for juries in rural or economically depressed venues.  Georgians have become more fiscally conservative during the economic recession and are more likely to scrutinize the verdict rendered.[8]  Accordingly, it is crucial to emphasize that this is the one and only recovery the plaintiff will ever receive.

Novice and experienced counsel alike struggle when it comes to discussing the monetary value of pain and suffering.  The only limitation Georgia Law places on such arguments is that the arguments must conform to the evidence and reasonable deductions from the evidence. O.C.G.A. § 9-10-184.  The persuasive tip here is to actually have evidence of damages that comes directly from the plaintiffs witnesses, including the injured party themself whenever possible.  The closing argument will be perceived by some as greedy-lawyer-tactics if you have not first given witnesses an opportunity to testify specifically and directly about their losses.

In the presentation of the damages in closing argument it is important to use an anchor—a numerical value that can form the basis for negotiations by the jury.  The anchor can take the form of a lump sum request, a per diem for the rest of the plaintiff’s life,[9] or even a multiplier from evidence in the case.  Charli Morris says, “Anchors based on evidence from the liability case can be among the most powerful[…]because they are tied to evidence that is directly connected to the defendant and its negligence. ”  The multiplier can be based on the medical bills of the plaintiff, a single day of profits for the company who caused the harm, the price of a defective product, or even the cost to put an alternative design into the marketplace.

A 2010 study in Law and Human Behavior attempted to determine whether it was better to ask for a lump sum, per diem, or nothing at all and found some interesting conclusions relating to the use of anchors. [10]  In the study, jurors were presented with an automobile negligence case where an 18 year old pedestrian suffered compression fractures to her lumbar vertebrae, spent two nights in intensive care, and continued to experience back pain and restricted mobility for two years.  Jurors heard one of four different requests to compensate for pain and suffering: a $175,200 lump sum request, a request of $7,200 per month for 2 years, a request for $240 per day for 2 years, or a request of $10 per hour for 2 years. Regardless of the exact request, the total amount requested of all jurors is the same: $175,200.

The study concluded that closing arguments that included an anchor were more likely to result in a larger verdict, with lump sum and small per diem request receiving the largest verdicts.  Here is the breakdown:

  1. When the attorney did not ask for a specific amount, the average award was $61,000;
  2. When the attorney asked for a monthly per diem, the average award was $66,000;
  3. When the attorney asked for a daily per diem, the average award was $99,000;
  4. When the attorney asked for an hourly per diem, the average award was $150,000; and
  5. When the attorney asked for a lump sum amount, the average award was $152,000.

While this study seems to show that if counsel elects to ask for a per diem, a smaller increment per diem yields larger verdicts, it is important to note that the jurors were more consistent with larger increment per diems than smaller increments. In the McAuliff study, although the average was higher, the spread of verdicts for the hourly per diem was over $100,000.  Regardless, the evidence is clear:  give jurors some form of an anchor to begin its deliberation.  Finally, in providing an anchor it is important to remember previous studies that demonstrate that counsel will generally get more when he or she asks for more.[11]

 

Jury Instructions

Susan MacPherson says, “The two most common complaints I hear from jurors are 1) the judge and the lawyers kept telling us we had to apply the law but nobody showed us exactly how to do that, and 2) we all understood the words in the jury charge but we didn’t understand what it really meant in this context.”  Once the damages have been laid out in an easy to understand format, it is important to discuss the burden of proof and definitions of important legal terms.  Citation to the Court’s instructions (which you have hopefully resolved in advance) can be a powerful tool that has the force of law.  For example, if you have a troublesome witness that should not be believed because he was impeached, tell the jury exactly why they can disregard the testimony under the Court’s Order.  Many sources suggest that the proper method for applying this process is to follow factual arguments immediately with the corresponding instruction.[12]  It is also critical to work through the actual verdict form with the jury.

 

Refuting the Other Side

There are three important points here.  First, take the wind out of the Defendant’s sails by rebutting his or her arguments in advance.  Do not allow jurors to hear a clever defense argument from the defendant first.  Inoculation theory holds that jurors are more resistant to counter-arguments if they have been given the reasons to resist them beforehand.[13]  Carefully explain the evidence of the case and why the defendant’s theory is incorrect based on the objective evidence.

Second, counsel should not ignore weaknesses in his or her case.  Jurors are influenced by their perceptions of the attorney and a closing argument that respects their intelligence and humbly admits and explains shortcomings will fare much better than one that hides from the “warts.”

Third, plaintiff’s counsel can affirmatively take control of the defendant’s closing argument by dictating the topics he or she must address.  Emphasize the holes in the defendant’s arguments and then introduce questions that the defendant cannot answer.  For example, “Why didn’t Truck Driver feel that he could call the company safety director to explain that their itinerary would put him well over his allowed driving time?” or “Why did the Tire Company wait six months to repair a substantial leak over the tire building equipment?”  Write these questions on a board and set the stage for the defendant.  However, you must be certain that the language is carefully crafted based on evidence that was or was not presented at trial – you don’t want to lob a rhetorical softball at defense counsel and invite him to swing for the fence with an argument that is not supported by the evidence.

 

Conclusion

Check your notes, check in with your co-counsel, commend the jury, and sit down.  Respect the juror’s time.

 

Rebuttal

Use the rebuttal for rebuttal.  Do not attempt to sandbag the defendant by not mentioning a crucial issue during the primary closing.  The risk of the Defendant seizing on this attempt by either waiving his closing or limiting the scope is too great.  Prepare a great closing and strive for an equally great rebuttal.

 

CONCLUSION

Ultimately, experience is the only true method to improve one’s technique and delivery of a closing argument.  However, with a clear goal and a structure designed to achieve that goal, you can prepare and present the best possible closing argument for your case in your pursuit to be an effective Speaker for your client in his or her search for complete compensation.

 

NOTE:  This article was originally published in 2013 at the Institute of Continuing Legal Education. 

 

 

 

[1] Very special thanks to Charli Morris who provided a tremendous amount of advice in the preparation of this paper.  Her website, trial-prep.com is full of engaging stories and advice.

[2]  Crawford, Richard J. and Morris, Charlotte A. The Persuasive Edge. Tucson, AZ: Lawyers & Judges, (2005).

[3] Mauet, Thomas, Trial Techniques, Closing Arguments, Pg. 401 (2010).

[4] Crawford, Richard J. and Morris, Charlotte A. The Persuasive Edge. Tucson, AZ: Lawyers & Judges, (2005); Hon. Anderson, Joseph F. The Lost Art: An Advocate’s Guide to Effective Closing Argument, United States Attorneys’ Bulletin (September 2000).

[5] Safire, William. Lend Me Your Ears: Great Speeches in History (2004).

[6] Ball, David, and Don C. Keenan. Reptile: The 2009 Manual of the Plaintiff’s Revolution (2009).

[7] Id. at 145.

[8] Susan MacPherson notes, jurors who are resentful at having to serve due to a real (or perceived) threat of job loss or are embittered by job loss have always posed a threat to injured plaintiffs seeking fair compensation.  Now there are more of these prospective jurors.  MacPherson, Susan, Talking to Jurors in a Down Economy, Trial Magazine (September 2009).

[9] Although per diem arguments have been curtailed in some jurisdictions, Georgia law specifically authorizes such arguments.  Mullis v. Chaika, 118 Ga. App. 11, 162 S.E.2d 448 (1968).

[10] McAuliff, B.D., & Bornstein, B.H., All anchors are not created equal: The effects of per diem versus lump sum requests on pain and suffering awards, Law and Human Behavior, 34, 164-174 (2010).

[11] Chapman, G. B., & Bornstein, B. H., The more you ask for, the more you get: Anchoring in personal injury verdicts, Applied Cognitive Psychology, 10, pp. 519-540 (1996).

[12] Mauet, Thomas, Trial Techniques, Closing Arguments, Pg. 295 (2010).

[13] Lumsdaine, A. A., & Janis, I. L., Resistance to “counterpropaganda” produced by one-sided and two-sided “propaganda” presentations, Public Opinion Quarterly, 17, 311-318, (1952)

 

 

 

 

 

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