Closing Argument is Not the Free-for-All That it Often Appears to Be

When there are trials on television or in movies, it is common that they skip or edit out much of the evidentiary arguments, the direct examinations, and often even opening statement. But one area that seems to be a great point of entertainment is the closing argument.

The public seems to be fascinated with closing arguments, which appear to be a free-for-all, where attorneys can say what they want and act how they want, often moving a jury to tears. But in fact, there are rules about what can and can’t be said at closing, many of which are ignored by pop culture’s depictions of trials.

gavelThe Rules of Closing Arguments

It is a cardinal rule of the closing argument, that an attorney can only argue or mention information that has been entered as evidence in the case. Certainly, an attorney can use creativity, analogies, personal stories, and similar persuasive techniques, but if they reference information that hasn’t been admitted into evidence, the argument is improper.

For example, it may be an error for a defense attorney to argue to a jury that an injured victim can “still play with his children,” if there has been no testimony about his ability to do that. On the other hand, saying that a victim can still run or lift may be OK, if it is contained in the victim’s medical records.

Another common error is that an attorney can’t ask a jury to put itself in the victim’s shoes. A jury can’t be asked to consider, “How would you feel if…” or “What would someone have to pay you to endure what the plaintiff has endured?” An attorney can emphasize to a jury what a victim has gone through in dealing with injuries, but closing arguments shouldn’t ask to put the jury in the victim’s place.

Allowing a jury to put itself in the victim’s place would result in damages that far exceed the evidence actually presented because there is no amount of money that any rational person would think is acceptable to sustain injury to themselves or loved ones.

Jury Should Not Decide Just on Emotion

The idea of the closing argument is that a jury should make its decision based upon the facts and evidence—not upon emotion. A jury may have emotions about the facts, of course, and can and should act on them, but the jury’s emotions shouldn’t be improperly invoked or used as the basis for making a ruling.

For example, showing a video of the victim’s struggles in a wheelchair may be appropriate. But showing videos of sports stars or strangers struggling because they are in a wheelchair may not be, as it would have nothing to do with the case or the evidence and would just be an appeal to emotion.

Personal Injury trials are more complex that what you see on TV and require knowledge of what can and can’t be argued. If you have been a victim of injury due to another’s negligence, talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury case.

badges