The last couple of weeks I had the pleasure of reading over the transcripts of a jury trial. By the time all was said and done, it was nearly 1,000 pages of documents. Towards the end of that, when I was tired, wary, and probably a little bit cranky, I went through the closing arguments. It took about one page before the prosecutor started reading the jury instructions to the jury. Not fun reading. I could barely muster the energy to plod through them, let alone manage the strength to post on twitter. I fought through it, though, and managed to write as follows:
Am I the only lawyer on the planet who thinks reading jury instructions in a closing can put jurors to sleep? They put me to sleep.
What I said there was a little bit harsh. I’ve got my own way of doing things. I like to come out firing on closing. I try to start by telling a story based on the facts the jurors heard… a reasonable story. If I can tell a reasonable story about how my client isn’t guilty, there’s reasonable doubt, right? Somewhere in there, usually towards the end, I’ve keyed on the important language of the jury instructions. So, I can use the instructions in my closing.
What I was talking about is the common way you see them used. As much as you see it in court, it’s probably the way some “trial skills” manual or course teach. Check out the first 45 seconds of this prosecutor’s opening:
Put yourself in the juror’s shoes. You’ve missed a couple days of work to pay your civic duties. You’ve heard the evidence and you’re chomping at the bit to get to deliberations so you can finally start making some decisions. The prosecutor put on her red power suit. She steps up to the podium like she’s about to break you off some Law & Order closing argument mastery, and it’s only 19 seconds in you’re being barraged with “consciously disregarded a substantial and unjustifiable blah, blah, blah, blabberblahblah.” 19 seconds after starting to talk, and I’m the juror looking to see if I might have accidentally smuggled in some cheetos and a Sudoku. Maybe your attention span is better than mine, and you made it farther than that. If so, please don’t hold my attention deficit disorder (or my multiple lawyer personality disorder) against me.
Anyhow, I’m not saying her closing argument is bad. Or that her use of the law is bad. I don’t know anything about that case… she probably won. What I am saying is that that style of reading the law, when not broken up and mixed into the “exciting” facts, is not one I can pull off. Thankfully, the best thing about this job is that everybody has their own style, and what works for one person might not for another. Based on the amount of times I see closings like this, it seems like most lawyers do something similar. That’s what I meant with the message.
On a related note, the rest of her argument might be outstanding (I can’t get past the first 40 seconds), I don’t know. On another stylistic note, though, I’d come out of the box a little different. “Three people are dead because of the conduct and the actions of this man” is a little dry. I’d opt for something more like, “This guy killed three people. That’s the only reason we’re here.” Hopefully nobody would pull out cheetos and sudoku. Never know, though.