Clients often wonder how a closing argument in a personal injury jury trial should be properly delivered by plaintiff's counsel to maximize the full impact of the plaintif's personal injuries, the defendant's liability for those injuries while at the same time insuring that the rules of fundamental fairness to the court, counsel and the parties are followed.
It really is not that complicated. The same general format is often applied and then tweaked by me on a case by case basis.
Right out of the block, I generally thank the jury members for serving on the jury. I also remind them that they were picked to serve because they were open minded, fair and agreed to listen to all of the trial evidence. I also remind them that they should decide the case base on the evidence presented. I remind them that the trial judge will charge them on the law and they need to follow it. I also advise them to not hold the plaintiff to a level of proof over and above the law of the case.
I will generally state the applicable legal principles to the case. I will discuss the general standard of care, the breach of that standard of care and how the plaintiff's damages are causally related to the breach of care by he defendant. I then proceed to argue the facts that I feel that we have proven by "the greater weight of the evidence" which is generally the civil standard unless fraud is at issue.
The evidence that I argue is the admitted evidence that is propounded at trial.This evidence may come in the form of live fact witness testimony, expert witness testimony or exhibits such as excerpts from a building code in a premises liability case or medical reports in an automobile accident case as one example.
If a defendant or defendant witness is impeached through an inconsistent statement, I will clearly articulate that in closing to the fact finding jury. It is extremely important to contrast for the jury the changes in the defendant's story. This may be by way of contrasting an admission to a police officer with deposition testimony that is inconsistent with the prior statement to the investigating officer which may also be inconsistent with the trial testimony.
If the impeachment evidence is a document admitted in the case as a full exhibit, we will often handle that document in front of the jury to make it more tangible for them to relate to.
Frequently a defense attorney may deny liability in the answer he prepares to the plaintiff's complaint. This is often an inconsistent statement as it conflicts with the defendant's statement to the police officer. A defense attorney may also amend an answer to admit liability at the time of trial waiting 2-3 years after the suit was brought. All of these inconsistent acts can show motivation on the part of the defendant to mislead and not be truthful. A good defense attorney picks his battles and does not make these types of "rookie" mistakes which include denying liability when the defendant has made admissions to investigating police officers in a "rear end" collision. A jury trial is all about the proof of facts and the credibility of witnesses used to establish those facts. The credibility of the lawyer is also at issue.
A personal injury case is a case about money damages once evidence of fault is propounded and liability established I will argue the legal concept of "just fair reasonable damages" as the evidence admitted in the case supports. The damage argument will center on medical bills, wage loss, money for a permanent injury seperate and distinct from money for pain, money for the loss of activities of daily living and monetary damages for the longevity of the plaintiff's physical and emotional pain. Depending on the severity of the injuries in the case, I may or may not make a daily per diem pain argument.
Just as the closing argument is to be made only on evidence admitted into the record either live or by way of a full exhibit, references in a closing argument that are not supported by the evidence, are impertinent or are prejudicial to either side, are not to be made. An improper prejudicial argument may either result in a curative instruction to the jury or a jury "mistrial".
A civil jury mistrial is the result of an occurence that is so prejudicial, the party can not have a fair trial. A mistrial is largely a trial judge issue. Sometimes, however, the act is so prejudicial that court will grant a mistrial rather than trying to "save the trial" with a curative instruction that is used to caution the jury. In reality, a curative instruction on improper argument acts to "highlight" the offensive argument to the jury which really just makes the notoriety of the argument worse.
Some examples of what not to do in closing argument that inflame a jury and result in prejudice to a party are quoting the bible, using the "golden rule" argument, making a derogatory remark about the honesty of counsel, arguing that the plaintiff is trying to hit the lottery with a "run away" jury award,arguing that the plaintiff can pay his or her bills through insurance or injecting the lawyers own personal beliefs into the case.
Whether the case is a car accident claim, a medical malpractice case, a premises liability case, a product liability case, nursing home negligence or a dram shop case, these types of closing argument references are not proper.
The Rotatori Law Firm frequently files its civil personal injury cases in Stamford, Danbury, Waterbury and Litchfield Connecticut superior courts.
I hope this blog has been informative.
Regards, PR,III.