By Dr. Ken Broda Bahm:
Your opening is a story, I’ve written before, about what happened and about what kind of case this is. The closing is a different story, not about what happened, but what is about to happen: deliberations and a verdict, hopefully in your favor. It makes little sense to go all the way to closing arguments and then tell the jurors the story of what happened as if they are just putting it together for the first time. Instead, closing arguments should transcend the now-familiar story to focus on impending deliberations and walk jurors through the specifics of the verdicts they’re about to render.
But that isn’t what happened at the close of the trial of John Edwards, the two-time presidential candidate and general two-timer. Instead, based on transcripts of the arguments, both the government and the Defense appeared to end the case much as it began, with a dramatic recounting of what happened. As this blog goes to press, the jury is now entering its fifth day of deliberations, and that may be a sign that they could have used a little more direction at the conclusion of the case. It brings to mind what I like most about high-profile cases: the opportunity for high-profile lessons. In this post, I’ll be taking one more look at the John Edwards trial (probably the last…unless the verdict is really interesting) and drawing out some lessons on the unique function of structure in a closing argument.
The John Edwards Closings
A few things make closings in this case interesting. First, the practice of the judge, Catherine C. Eagles, is to provide jurors with their own copies of the verdict form during closing, allowing them to write notes, or even scribble in individual verdicts while the attorneys argue. Second — and oddly, in view of the fact that all of the jurors are holding verdict forms — it isn’t until 48 transcript pages into his argument that the prosecutor, Robert Higdon, finally gets to “Now, let’s talk a little bit about the charges in this case…” And even then, he follows the claim structure, which apparently differs from the sequence on the verdict form that jurors are holding. What precedes this is a narrative, well spoken and even gripping, but also something that the jury is already well aware of. The third unique feature is the attention given to the other side. “Before I sit down,” Mr. Higdon says near the end of his closing, “I want to quickly cover some of the issues which the Defense has raised in its opening statement and its cross-examination of the witnesses.” In other words, before he finishes, he wants to mention the other side’s case: Does the money used to hide Edwards’ mistress count as a campaign expense? If it does, did Edwards know it? These afterthoughts are likely to be the centerpieces of deliberations. I don’t mean to pick on the prosecution alone. When the time for the defense closing came, they largely took the same route: retelling the story instead of walking jurors through the form that they were holding.
The Closing is Not About What Happened, but About What is About to Happen
An effective closing focuses on deliberations, and prepares jurors specifically for the questions that they are about to answer. Some might say, “Well, after all of this evidence, the jury may have lost the narrative thread and may need to be reminded of the story.” Maybe, but briefly. Chances are, after hearing openings, and after hearing numerous witnesses follow a narrative path through their testimony, they’re well aware of the story. If, in that context, they hear a closing argument that sounds like it could have been written before trial even began, they won’t see it as useful or important and it won’t engage them. Telling the story again, this time with the addition of “…and you heard witness X say that on the stand,” from time to time isn’t the best use of your precious final words to the fact finders.
Instead of returning to the case story, your mission in closing is to tell a new story about what jurors will do — what they’ll consider, ask themselves, wonder, find out, and decide in deliberations. Focusing on what you expect to be the most salient controversies, frame your closing arguments around the jury’s most predictable areas of discussion. By doing that, you are giving tools to jurors to help them understand, justify, and most importantly, advocate on your behalf.
The research also backs up that advantage. While there is a broad tradition of research indicating that people learn best through simple narratives of “what happened,” that doesn’t hold for closing arguments. Dr. Shelley Spiecker, along with Debra Worthington (Spiecker & Worthington, 2003), conducted a study on the effectiveness of narrative versus “legal-expository” format that focused on comparing cases based on their elements. While narrative worked best in opening, the more claim-oriented approach tended to fare better in closing.
Target Your Closing
Boiling it down, I suggest three general lessons on the composition of closing.
1. Place Emphasis on the Issues Most Likely to Divide. What if, instead of saving a discussion of the Defense case for the last moments of closing, John Edwards’ prosecutor had started out with something like the following:
Chances are, your own thoughts so far, as well as the discussions you’re about to start, will focus on three main questions: Does the money count as campaign contributions? Did John Edwards know it? And can we trust the principal witness Andrew Young?
Those are the three pillars of the defense, so why not directly start sawing them down at the outset of closing argument? After mapping those questions onto the verdict form, the prosecutor should then pile up all of the reasons for an affirmative answer to each, enumerating a list that jurors can write down and use to convince themselves and others.
2. Make the Verdict Form the Framework, Not a Moment at the End of Closing. The closing arguments in the Edwards trial are not unusual, in my experience, in the amount of attention that they give to the verdict form itself. It is common for attorneys to cover all the arguments based on their own framework, and then save a moment for the end of closing and essentially say, “Okay, let’s talk about how everything I just said applies to your verdict form.”
What if, instead, attorneys made the choice to structure the closing based on the structure of the verdict form, starting with question one? That way, you are anticipating and framing the discussion they’re about to have. All of the necessary story, recall of witnesses, use of exhibits, and instructions can be placed in buckets based on where they’re likely to apply to the verdict. With this approach, instead of just a last act of attempted persuasion, the closing argument becomes a coaching session for the jurors who are about to deliberate.
3. Employ a Light Touch When It Comes to Telling Jurors What to Do. With all this talk of framing and determining the jurors’ discussion, it is wise to remember one fundamental jury fact: They don’t want to be consumers of persuasion, they want to reach their own conclusions. The most effective advocates know that they’re more effective in telling the target what to think about, rather than telling them what to think. This is why it is best to put more explicit focus on their discussions rather than their conclusions. For example:
You are going to ask yourself how money to hide a mistress can be part of a campaign. And it may even sound a little counterintuitive — after all, it isn’t a brochure, or a TV ad, or a rally. But here is another way to look at it: Would the campaign have been able to continue without those funds? When the initial supporter, Bunny Mellon, first offered to pay bills, did she mention the campaign? Was she offering support in response to criticism of the campaign over a $400 haircut? Were these just the actions of a personal friend, or the actions of a supporter who desperately, desperately wanted to see her man in office? You are going to consider and discuss all of these questions, and I trust that you’ll apply your common sense as well. But as you think about these questions, let me remind you of a few facts that you will want to take into account.
You won’t always know what the jury’s focus will be during deliberations, but you’ll generally have a pretty good idea. If you’ve conducted a mock trial, you of course won’t be predicting the ultimate jury result, but in my experience, you will have a more reliable sense of what the jurors will be talking about, and the main controversies that will divide them. When you speak directly to those controversies within the context of your specific verdict form, you’re giving your most effective closing.
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Other Posts on the Trial of John Edwards:
- Take a Lesson from the John Edwards Trial: With Sensitive Facts at the Heart of Your Case, Aim for a Desensitized Jury
- Test the Credibility of Your Turncoat Witness
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Spiecker SC, & Worthington DL (2003). The influence of opening statement/closing argument organizational strategy on juror verdict and damage awards. Law and human behavior, 27(4), 437-56 PMID: 12916230
Photo Credit: Decafinata, Flickr Creative Commons