Malpractice Consult: What to know about closing arguments

Austin Richards, Esq

This column, concluding our series on the anatomy of a medical negligence trial, will focus on the closing argument. The closing argument is the final component of a trial and serves as the final opportunity to persuade the jurors to the lawyer’s view of the evidence and position on the case.

Both sides at trial present a closing argument. In a malpractice case, this means a closing argument will be made by both the plaintiff’s lawyer and the defendant’s lawyer, wherein the plaintiff goes first, the defendant goes second, and then the plaintiff has the option of presenting a final, brief rebuttal. Plaintiffs are given the first and last word during the closing argument because plaintiffs bear the burden of proof.

This is the only time the lawyers can speak directly with the jury through the lawyer’s argument for why their position should prevail. An effective closing argument pulls everything together and not only recounts the facts and evidence but also explains what the facts mean and places the evidence into a cohesive narrative. Engaging closing arguments typically involve using direct quotes from the trial, reshowing the jury exhibits that were used throughout, and referencing the theme established in the opening statement. It is also common to see lawyers use demonstratives such as graphs, charts, or timelines to simplify the issues. After all, summarizing a 3-week trial in a couple hours is challenging. In creating these demonstratives, a lawyer hopes to give the jurors something to remember when deliberating.

There are times during the trial where, during the examination of a witness, a lawyer may elicit testimony that creates an inference. For example, a lawyer may cross-examine an expert on the hourly fee being charged to the client. This creates an inference that the expert is a hired gun. But because the witness would never agree with that sentiment, it does not make sense to ask the question. Instead, during the closing argument, the lawyer can attack the expert’s credibility and draw the conclusion that they are only testifying the way they are because they are being paid to do so.

In addition to framing the evidence in the light most favorable to the lawyer’s position, it is also important to undermine the credibility of the other side. This is done by poking holes in the opposing theory, highlighting inconsistencies within the testimony, or even challenging the other side to explain lapses in logic. Unlike the opening statement, it is not important to proceed in chronological order. Most lawyers will lead with the best arguments that affirmatively support their position before highlighting the best argument to attack the other side.

Finally, because these are the final moments before the jury deliberates, it is important to empower the jury. To do this, lawyers will remind the jurors of their civic duties before turning the case over to them. It is paramount that the lawyer tells the jury exactly how they should rule and that only they have the power to effectuate a just outcome. If all goes well, the jurors will enter their deliberations with a view of the evidence consistent with the lawyer’s narrative and view of the case.

After the closing argument, the jurors receive their instructions on the law that governs their deliberations. Guided by the law, and the understanding of the evidence provided in closing argument, the jurors will decide what the outcome of the case will be. All the components of the trial are designed to try to ensure that when the jurors depart for the deliberation room, they are inclined to find for the attorney’s side in the case. Once the jury makes its collective decision, usually hours or days after the deliberations begin, the parties are called back to the courtroom for the verdict to be announced. At that point, the attorney learns whether their efforts were effective and whether the jury accepted their version of the case. The verdict is the reflection of not only the hours of deliberation or the days of trial presentation, but it is also a reflection of the years of work leading up to the trial.

Thank you for joining us in this series through each aspect or component of a trial.