Kentucky

Continuation of presentation and notes from seminar from Kentucky Justice Association and  Kentucky Defense Counsel on Trial Techniques & Strategies. 

You are warned in advance that these notes may be a tad brief when compared to those earlier today.  My fingers are doing the walking, while the others are doing the talking.  And these digits are getting weary.

CLOSING ARGUMENTS

From Plaintiff's Perspective

• Giving the closing you want versus the one you have to give requires early development and gathering the necessary facts.  Anticipate defenses and prepare case and client appropriately.
• Be credible.  Embrace the art of persuasion.  The impression you want to make and that of the client.  Be  yourself.  Be likable.  Be real.
• Be professional.  Conduct yourself to underscore the dignity of the courtroom treating all with respect and consideration.
• Empower the jury.  The result and verdict should mean something to them.
• Use plain, simple language all can understand.  It's a much more effective form of communication.
• Use of theory and theme.  This is usually set up in advance and not the eve of trial.  Must be consistent with the facts and follow the juror's understanding and life experiences.  Work with the script that the jurors come into the court with.
• Combat the script the jurors arrive with.  Their preconceived notions on causation, negligence, damages, etc. need to be addressed.  Overcome it with facts and evidence; not argument. 
• Remember recency and primacy.  Believe what you hear first, and remember the last.
• Rhetorical questions can be effective.
• Admissions and stipulations.
• Use of analogies, stories and quotations.
• Forewarning minimizes harm and typically done already at opening.
• Exploit defense weaknesses.
• Use jury instructions in closing.
• Exhibits.  Be careful; less may be more
• Relate back to voir dire reminding juror of promises of impartiality.
• "Do nots" for closing
  • Do not stand to close to jury and invade their space.  Deference.  Some use podium as crutch and base; others walkabout.
  • Do not read your closing
  • Do not get personal or nasty.  Critical analysis does not have to be mean.
  • Do not exaggerate or misstate facts. which can cost you credibility.
  • Do not talk down to jurors.  Talk up to them.
  • Raising objectionable items is risky.  Raise it with the judge first.
  • Do not forget to discuss burden of proof, jury instructions, apportionment of fault.
  • Do not forget to turn off the phone.

From Defendant's Perspective

• Nothing new under the sun, and the techniques for both sides is in the pool of common knowledge
• Caselaw overview was included which was quite useful.
• More than summing up he evidence.  Think of what can be accomplished and do it. 
• Chance to communicate with jurors on key issues.
• How valuable is closing?
  • Some say it doesn't matter that much.  Already decided.
  • Some say it is critical.  Complicated witnesses, issues and evidence and need an anchor in a sea of information.
• Three objectives
  • Convert
  • Convince
  • Confirm
• The right to be wronged, the righteous indignation, the right to be empowered falls easier on the plaintiff than on the defendant.  Does not mean defense has no emotional issues.
• Develop a collaborative effort between the defense and the jury to find the truth.  Objectivity and reason rule.  Set it up with voir dire, and relate it back during closing.  Asking for something does not mean entitlement.  Reason rules and let's make it right.
• Three absolutes
  • Tell the truth.  Be the guide the jury can trust.  Don't misrepresent the evidence or oversell the case.
  • Be reasonable.  An ally to find the truth as opposed to being an advocate.
  • Must be credible.  Watch alternative defenses.
• Simplicity
  
  • Keep it simple.  Don't chase every rabbit
• Be yourself
  • Conservative
  • Watch what you wear
  • Watch what you say.  Talk like people; not lawyers.
  • How you say it.
  • How you stand.  Using podium.
  • It's not about you.
    • It's about the parties and the evidence.
• Connect with the jury
  • Do not read it.
  • Get away from podium
  • Be conversational but do not invade jury's space.
  • Individual eye contact with each jury and particularly the leaders.
  • Show the jury you like your client.  Personal name not label of defendant.
  • Talk, not lecture.
  • Use normal language; your language.
  • Say nothing you can't support.
  • Believe what you say and say it like you believe it.
  • Vary your voice.  Turn off the "lawyer" voice.
  • Be sincere.  Don't sell what you would not buy.

I have re-edited these posts and deleted the names of the presenters.  Not because I want to deny them individual credit, but because I did not wish to risk improper attribution and embarass them based upon my summaries and poor typing.  However, they all did an outstanding job from both sides.  Kudos to the Kentucky Justice Association and the Kentucky Defense Counsel on a job well done and an incredible cooperative effort to educate and promote the professionalism of the bar.