by: Dr. Ken Broda-Bahm
The common wisdom is that closing argument it the time to, well, present arguments. However, a sensitivity to your audience and to what jurors are trying to do during your closing argument, suggests that straightforward argument may not be the best way to help jurors feel like they’re 1.) coming to their own conclusions (which they desperately want to do), and 2.) able to convince opposing jurors during deliberations to come around to your favored verdict (which you desperately need them to do). There is an alternate perspective, one that is based on jurors’ tendency to think in terms of stories, that arranges just the right pieces of the jurors’ trial memory, helping jurors arrive at and defend their own conclusions, while making sure that those are your conclusions as well.
That alternative is substantially at odds with the traditions of closing that you may have learned in law school. The common view is that closing argument is the time to put it together for the jury, and – now that the rules finally permit it – to argue, argue, argue. The thinking is that after they’ve heard the evidence, jurors have all the pieces to the puzzle, but it is up to you, the smart and knowledgeable attorney, to arrange those pieces just right so they come out supporting your case. But the logic of that approach can produce a scenario where you are arguing at the jurors instead of reasoning with them.