The Art of Summation by Elliot H. Taub
The art of summation, like other arts, is the ability to convey a concept. The painter makes a sketch in which he arranges the contents of his picture so as to give reality to his thought. Emphasis is then given to the central theme by its position i the composition, by its
size and colors. The artist then takes care to tie all parts into the whole and lead the viewer’s eye towards the core. The more complicated the subject matter, the greater are the demands on his skill. The same analogy can be made to musical compositions where the composer uses notes of the scale, the lawyer, words. But, whereas the painter and composer can produce a work of art even though it may have different meaning for different people, the lawyer, in his summation, has to convince five out of six jurors, in a civil case, and all of the jurors in a criminal case, to accept his concept.
Common sense dictates, and the literature I have read on the subject affirms, that a basic outline for the lawyer’s sketch of his arguments to the jury, should consist of the following outline by Irving Goldstein in Trial Technique:
(1) The introduction.
(2) The issue.
(3) The picture of the cause of action.
(4) The corroboration and cumulation.
(5) The opponent’s contentions.
(6) The refutation.
(7) The appeal and conclusion
The introduction should be brief but designed to get the attention of the jurors, impress upon them that they are expected to be fair and impartial, and attempt to get their good will.
The evidence should be analyzed thoroughly and the main question or issue involved determined. That main issue should be the central theme, with the other issues assuming a minor position in his sketch. In a negligence case the main issue is, of course, liability, because if that is not won everything falls. But, of almost equal importance is the issue of injuries, pain and suffering, and damages. Therefore, another picture must be outlined and completed to persuade the jury on that score.
A clear concise description of the occurrence out of which the action arose should be presented. Gestures and models, if they help the description, should augment the word picture, so that as clear a picture as possible is presented. Just as the background in a photograph conveys much about the principal subject, the circumstances surrounding the event describe will have a bearing on the picture the attorney wants to fix in the jurors’ minds. He should paint the circumstances into his picture. Also, the angle from which a photograph is taken will produce a picture different from one taken from another angle; the attorney wants the jurors to get the picture from his angle.
“The jury has heard the evidence in court for the first time and often it has been presented in a comparative hurry;” the attorney has studied all aspects of the case over a period of months, and frequently years, and should, therefore, try to put himself in the position a juror hearing facts for the first time. The attorney should then refer to the evidence given by the plaintiff (or defendant, if he presents the defendant), and other witnesses, supporting his concept, or theory; and correlate the various pieces of evidence which may not have been brought out during the examination and cross-examination in the logical sequence which would enable the jurors readily to see their connection. The cumulation of testimony, properly related, will carry weight and give credence to the attorney’s theory.
One pitfall an attorney should avoid is distortion or misstatement of testimony. Objections by his adversary would seriously impair his effectiveness in persuading the jury.
While the attorney may refer only to matters in the testimony, he is permitted to draw any reasonable inferences from the facts. Ordinarily, the Court will permit reasonably wide latitude in the implications and conclusions drawn from the evidence and attorney should take full advantage of this, particularly when a witness’s assertion is detrimental to his case but, related to other facts and to its improbability leads to the advocate’s conclusion.
The opponent’s contentions should be stated and analyzed so that the jury can clearly comprehend the weaknesses or fallacy of the adversary’s theory.
Witnesses may testify only as to facts, with one exception – an expert witness, in answer to a hypothetical question, may testify as to his opinion. To tangle with an expert in cross-examination might be disastrous unless the attorney is as well grounded in the expert’s field as the expert, which is unlikely. But an attack on the flaw or defect in the hypothesis may upset the expert’s asserted opinion because “the opinion is no better than the foundation upon which it rests.” This certainly should be emphasized in refuting opponent’s contentions. The bias, prejudice or other motives of witnesses whose testimony opposes the advocate’s theory should be made clear and the falsity of any testimony exposed. The improbability of opponent’s story being true in the light of the facts adduced at the trial should be pointed out and contrasted with the true facts as propounded by the advocate.
In the conclusion the attorney should appeal to the jury to return a favorable verdict, stating that he has proved his contentions and is, therefore, entitled to a verdict. In a personal injury action, this appeal should be prefaced by a complete analysis of the nature and extent of the injuries, their permanence, the resulting disabilities and restrictions, the medical and other expenses, earnings lost, projected expenses and loss of earnings in the future, and the value of the pain and suffering, physical and mental. Surgical procedures and medical treatment should be referred to. If the plaintiff was confined to a hospital for four months, this could be appreciated better by the jurors if the attorney stated that the plaintiff was confined to the hospital “for four months — one hundred and twenty days and nights.” It is difficult to put a money value on pain and suffering; it is the tendency of many people to feel that nobody has suffered like they have, and that is true of jurors too – if your arthritis gives you pain, their arthritis gives them twice as much pain; if your leg was fractured, their fractured leg was more complicated and more painful; that if you had a splinter in your hand or foot, their splinter was more deeply imbedded and hurt more. Exposition of what the plaintiff has endured and will continue to endure, step by step, may convince the jury of the seriousness of plaintiff’s plight. The value of the loss of a leg is far greater than the surgeon’s fee for amputating the limb so that there can be no fixed ratio between the amount of money spent or to be spend by the plaintiff to heal a serious injury and the pain and suffering. The plaintiff may no longer feel physical pain, but he will, if he lost a leg, suffer mental distress and the loss of his leg for the rest of his life. The dollars and cents amount counsel expects the jury to award in damages should be justified by a careful exposition of the components whose sum is the amount requested.
In preparing his summation, the attorney must take notice of certain rules of the Court. Louis E. Schwartz, in Trial of Automobile Accident Cases enumerates some of them: “The right to the closing argument is generally in the party having the burden of proof, generally the plaintiff; the time allowed for the summation may be limited by rule of the Court or the court’s sound discretion, but not arbitrarily for the personal convenience of the judge; it is improper to read law to the jury and an erroneous statement of the law would be reversible error; counsel may not read from medical books; finding by a former jury or verdicts in similar cases may not be referred to; nor may reference be made to evidence which was rejected or excluded or to facts not in evidence. A statement of fact not in evidence is particularly erroneous where it is calculated to excite the passions of the jury. It is generally reversible error for the plaintiff to inform the jury, directly or indirectly, that the defendant is ensured.
Other improprieties cited by Schwartz are: Making inflammatory arguments designed to arouse prejudice or sympathy; referring to the wealth or social position of any of the parties; or comment on the contrast between the plaintiff’s poverty and the defendant’s wealth. An appeal to the jury to put themselves in the place of one of the parties has been held improper. In some jurisdictions it is also improper to tell the jury the amount claimed or expected (not New York).
Stating legal principles should be avoided because “the Court charges the jury on the law and frequently resents any reference thereto by the lawyer in his closing plea to the jury. If you must discuss a legal principle, preface it by telling the jury you think, or hope, the Court will thus charge them upon the law….Ordinarily this diplomatic manner is effective. It is even better, however, to discuss only the facts in your summation and attend to the law by your proper requests to charge.
In meticulously preparing the contents of his composition, the attorney would do well to think in language easily understood by the layman. He should abandon the jargon of the legal profession or any other profession or trade, except where the jury has become familiar with and understands certain terms defined and repeatedly used during the trial. If he keeps his objective in mind, he will want to use words that he is sure the jury will understand. Simplicity will make for clarity.
Once the attorney knows what he wants to say, he is faced with the problem of how to say it. He could write out a speech and read it to the jury; it is unlikely that such a delivery would hold their attention for more than a few minutes. He could memorize a speech and recite it to the jury. However, these two methods are not designed to establish intimate contact with jurors. He wants to hold their attention. He should recognize that frequently the proceedings have been boring, that some of the jurors have been inattentive because perhaps they were preoccupied with personal problems, and that some of the jurors may not have fully comprehended some points. Heading or delivering a memorized speech would make it almost impossible for him to respond to a quizzical look on the face of any juror. A few written notations to which he can occasionally refer is the best method.
A friendly and respectful manner coupled with a pleasant voice, looking directly at one juror and then another, is the best approach. The best arguments put forth in a monotone will put the jury to sleep and when every sentence is a crescendo the jury will be deafened to the arguments. A law suit is a serious matter and the jurors are there to give serious thought to the proceedings, some of them having sacrificed time valuable to themselves to do so; generally, it is not the place or time, during a summation, to be frivolous, witty or humorous. Further, reference to the plaintiff, the defendant, his attorney, and the witnesses by their names will make the jurors feel less detached. Also, annoying repetitious mannerisms should be avoided lest the jury’s attention be distracted from the arguments.
Some people have a natural talent for speaking, but others can cultivate the art. A lawyer can improve his ability to speak to a jury by getting some professional voice training and by observing masters of the art in the courtroom. According to Professor Alfred S. Julian, Professor of Trial Practice Workshop at New York Law School, imitating other attorneys’ techniques is not a crime, but commendable. Nevertheless, a lawyer should be true to his own personality otherwise the borrowed technique will lack the sincerity which must be projected in order to win the jury to his side. The aim of an attorney should be to learn to speak to a jury in conversational tones as though they were guest in his living room and he was trying to explain a complicated matter to them. A little humility will not hurt; the juror who is slow to grasp what is elementary to the lawyer may excel in something the lawyer cannot do.
Knowledge of human psychology is also a tremendous aid in convincing a jury. The attorney can use the information learned about the jurors during voir dire to advantage. While “it is improper, in summation, to single out one or more individuals…” reference to the pain and suffering of a plaintiff who sustained an injury to a hand or arm can gain the understanding and sympathy of a juror who is a carpenter or plumber by likening the hand utensils the plaintiff temporarily or permanently cannot use to a hammer or wrench, tools of their trades; a teacher or waitress would probably be more sympathetic towards a plaintiff suffering from a permanent leg disability because they stand approximately eight hours a day on their jobs. It is the natural inclination of people to withdraw emotionally upon hearing about another’s pain and suffering. The use of “reverse psychology” sometimes works. If a person is called prejudiced or a bigot, the immediate reaction most of the time will be a denial, whether it’s true or not. Therefore, if the jurors are made to feel that they are the rare individuals who can sit and listen carefully to facts and arguments concerning the plaintiff’s pain and suffering in spite of their innate feelings, they might then listen more carefully and be sympathetic.
A novice trial lawyer would do well, with a few written notes in hand, to practice his delivery looking into a mirror, also in front of family, friends, or colleagues and invite their criticism.
Careful analysis of the case, thorough preparation of the arguments and a convincing delivery are the essential ingredients of a summation to the jury. Such craftsmanship becomes an art in the hands of a master who intuitively also knows when and how to bend some of the rules, make innovations, “raise his voice,” or display emotion.
A playwright strives through the structure, dialogue and directions in his written drama, implemented by the actors, to have an audience understand his concept and identify with his characters; the extent to which he is able to do this determines the quality of his work of art. The lawyers, in summation, has a similar task, but his odds are greater because of his limited audience (a jury panel). Therein lies the art.
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