Let’s talk about the three C’s. The first is “civil”, those cases that I have always discussed with you and which is the focus of my website. Second, is “civility”, how you act in a courtroom or how you interact with people throughout the course of the case. Third, is “closing,”, for what a closing argument looks like in a civil case.
Let’s take them out of order and discuss the third because it blends all three. A closing especially requires civility. You start off in a closing argument by thanking people for the attention that they have brought to the case. I say people, not just the jury, but everyone present from court officers to stenographers. Of course, I want to point out that, as most of you know, the typical case does not try. The point remains that at all phases of litigation (and pre-litigation), you want to act with decorum to your adversaries. Whether at a deposition or mediation, you want your client to act in a polite but firm manner. My mantra for clients is “always be polite.” But my mantra continues and calls for my clients to be “firm” as well. You do not want the client to be pliable so that he/she can be hoodwinked, cajoled, or intimidated into saying something that is not believed. Thus the total mantra is to be “polite but firm”. They are not irreconcilable nor mutually exclusive.
In the closing, you continue to thank people for coming day after day to a trial and disrupting their schedule. I also thank a jury for the care and attention they will give the case in the jury deliberation room. That really needs to be noted because the time spent for serving as a juror, including the time for deliberation is time away from someone’s schedule. I thirdly say that the judge will instruct the jury, if it is a jury, on the law and that it is their job to find the facts. They need to make crucial determinations based on the evidence they heard and saw. Some of those determinations may come from so-called reasonable inferences.
As to the “thank you’s” that a jury deserves to hear, it is worth noting in this blog that they do seem bothered at the very outset of a case. No doubt there is some fear that, if chosen, their many obligations will be shunted aside for the duration of the case.. But, as the days unfold, I can say without equivocation and without being a phony, jurors really do take the job very, very seriously. You can feel the transformation from the time that they enter the courtroom to the time that they are formally sworn in and then throughout the trial.
Of course, I discuss the standard the jury applies in civil cases. When they evaluate the evidence, they use the standard of a preponderance of the evidence. That is, the determination is made on a standard of more probable than not. It is not to a reasonable doubt standard. Reasonable doubt is, as we have said, especially in recent blogs discussing the O.J. Simpson trial, a criminal standard, not civil.
One of the major things I think about is credibility. They, that is the jury or the factfinder, is the ultimate judge of the credibility of who comes before them to testify. Those are the kind of decisions that people make in their everyday life. That is the same kind of evaluation that you make so often in your daily life: you are evaluating credibility.
Those are the overarching themes that are addressed in a closing argument (though they shouldn’t be confined to the closing argument) in a civil case and should always be conducted with civility. Don’t forget a fourth “c,” credibility, something which has a major role in every case.
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