For many trial attorneys, their favorite part of a trial is cross examination where there is direct confrontation of a witness. And while it is a vital part of any trial, for me, the best part of a trial is the summation. You have a captive audience, get to speak pretty much uninterrupted about something you’re passionate about (your client’s case), and it’s the end of the case! A trial is a 24 hour job and you now turn the matter over to a jury. The result is now out of your hands.
A summation can’t be prepared before the trial since you never truly know what the evidence will be until the witnesses have spoken. Nor do you know what evidence will be permitted by the court. But you should have a theme and be molding an outline of your summation during the trial based upon that theme and the evidence presented. I keep a separate note pad where I record ideas and impactful testimony during the trial and use it as an outline for my closing argument.
The summation is a time for persuasion not presenting evidence. Fair comment on matters before the court is permissible but testimony by counsel is highly improper as are ad hominem attacks against your adversary or witnesses. Such attacks will result in a reversal.
During a damages trial where you are requesting an amount of money to compensate a client for pain and suffering one cannot request a Per Diem amount or state that a party has the funds and ability to pay or inability to pay a verdict.
Comments on summation should be fact based when attacking a witness’s credibility. If you’ve purchased the daily transcripts of testimony, you may read exactly what a witness has said and remind the jury of testimony that supports your case.
Appeals to logic are highly effective such as citing rule violations. The various laws, codes, rules that apply should have been set forth in the bill of particulars and by summation you should have already had a ruling on which ones will be charged to the jury. Citing the rule and the factual violations in summation are powerfully tools in convincing a jury of the merit of your client’s case. This is particularly true where the Court will give a jury charge that a violation of a law or code is a suggestion of negligence.
Finally, while one should avoid appeals to sympathy, appealing to our common humanity and a sense of justice and righting a wrong is both permissible and effective. One should remind a jury of their importance and the power they hold. There are few times in life can someone literally change someone’s future, for better or worse than when serving as a juror. In this way, you empower a jury to make a fair and just resolution and remind them that to the parties, the case is not a trivial matter.
Enjoy your summation, be passionate and creative and remember that at every trial you will give three summations: the one you practice, the one you give, and the one you talk about.