Norm Pattis has had a busy December on trial, and did something I’ve never done.  I’m sure some other lawyer has done the same as him, but if so, I’ve never seen it happen.  Norm says it’s the second time he’s done so, which brings him to ask a question. Are closing arguments really necessary?

Yesterday, the prosecutor in my case gave a textbook example of hide-the-ball opening argument. The first three minutes of his “argument” was merely a repetition of the complaining witnesses testimony with simple declarative sentences about what other witnesses said: a sort of TV Guide version of the trial condensed into uncritical and bland prose that were not intended to persuade. He spent the balance of his time merely reciting the law the judge was about to read. He ended with a simple request for a guilty verdict. The state failed in its opening to address any of the weaknesses in its case. It was not really argument at all.

My client and I were stunned. All the drama and stress of trial for this? My client and his witnesses and had just testified. There was no need to remind the jury of what they had just said. And the themes we hoped to argue were already set in the cross examination of the state’s witnesses and by our witnesses. If by arguing we really were going to do nothing more than give the state a final shot at what we had already laid before the jury, what, frankly, was the point? We picked a smart and self-confidence jury. We trust that group.

So we waived closing argument.

Before moving forward, bear in mind that in different jurisdictions, the sequence differs. Sometimes the prosecution goes first. Sometimes the defense. Sometimes the prosecution gets a second shot after the defense goes. The defense never gets a second shot.

Trying a case requires a huge amount of hubris by definition.  To stand in the well and address the jury takes both confidence and belief, in yourself and your case. For the brief period of time that we’re on trial, we believe completely in our cause. There will be plenty of time for critical self-analysis later.  There’s no room for doubt in the well.  But when Norm says that he liked his jury, “[w]e trust that group,” it’s hubris run amok.

Juries are not to be trusted.  It’s not that the jurors aren’t trustworthy.  It’s not that they are stupid or foolish or evil or hostile.  It’s that we never (emphasis on never) know what’s really going on in their heads. We want to believe that we’ve picked a “smart and self-confident” jury, but we can’t tell.  And if they’re self-confident, and it’s not clear what that means with regard to a jury, how do we know if those satisfied smiles mean they are for us or against us.  Both smiles look the same.

Norm’s conceptual point is well-taken.  If the last piece of good, strong, hard evidence did everything you want it to do, and the prosecutor’s summation didn’t lay a glove on it, then why go muck it up?  More importantly, why give the prosecution another shot?  He could always do better, even great, the next time.  A basic rule of trying cases is stop when you’re ahead.  Sure, you could always be more ahead if you make one more point or ask one more question, but that could just as easily be the one that blows the case wide open; your next step could be on a landmine.

At the same time, we can never assume that the jury got it.  When we cross examine a witness, we pick them apart if we can.  We do it fact by fact, point by point.  We know what we’re trying to accomplish, but the jury doesn’t.  They lack the overview and often can’t discern the significance of any particular answer until afterward.  The problem is that our hard won point may mean absolutely nothing to the jury at the time, and it doesn’t register.  We think we’ve scored. They don’t think about it at all.

Closing argument is when we put it all together.  We add up all the points scored throughout the trial and, mustering every ounce of our persuasiveness, make it as clear as possible.  If we’re lucky, they were listening and heard us win our points.  When we raise it in argument, something clicks in their heads and they say to themselves, “oh yeah, I remember that.”  Now it has meaning.  Until summation, it was one of a great many loose sounds that floated through the courtroom, disconnected from the many others. 

More often than not, the testimony that we rely upon consists of small pieces, sometimes merely inflection or a single word, that we hope will change the meaning of something critically important.  When the word was spoken, what was the juror doing?  Yawning (it happens a lot)?  Wondering whether they fed the cat?  Eying the hottie in seat 4?  We don’t know.  Our focus was on scoring the point.  And even if we had an eye on the jury box, the indicia of recognition may just as well have reflected a satisfying decision about what to eat for lunch.  We just don’t know.

Norm hasn’t gotten a verdict yet in his case, so the propriety of his decision to waive closing argument remains a mystery.  He won’t read this post before his verdict comes in; he’s got more important things to do.  But he may learn whether he made the right choice before Miller Time rolls around.  I certainly hope he has no regrets.  Every case is different and, maybe, the one he’s trying will be the one where no summation is the right call.

As for me, I’ve never waived closing argument and can’t imagine ever doing so.  Let the prosecutor have two shots arguing against me.  I only need one.  But I would never give up that one shot to explain to the jury what they’ve just experienced.