Mr. Doe has left our office after his initial interview on March 15, 2000. Now is the time to start preparing the closing argument for his and his nephew's cases. But what about the opening memorandum, filing suit, interrogatories, depositions, meetings with the experts, meetings with the doctors, settlement negotiations, preparation of witnesses and the hundreds upon hundreds of other items, large and small, that must be done before trial? Aren't we jumping the gun just a little bit? We haven't even developed our facts or damages, how can we think about the closing argument? Focus. Everything that is done to develop a case, from beginning to end, must have a reason behind it. It is easy for a lawyer to go through the motions of preparation—but nothing should be done without first asking how it is going to benefit, or potentially damage, the case. By thinking about the closing argument from the very beginning, we focus on the major themes of the case. We focus on our goals for the case—how we ultimately want to present the client and his case to the jury. From then on, the entire process is about reaching, and maximizing, these goals.

We do not mean to insinuate that the closing argument is the most important part of a trial. It is not. All aspects of trial are equally important—a case can be lost if any part is not properly prepared. Opening argument, however, presents possibly the greatest opportunity for an attorney to shape the facts of a case in a light most favorable to the client. The plaintiff's attorney has the remarkable privilege of being the first person from whom a jury will hear. The attorney should not waste this opportunity with anything but the most precise preparation.

This article will first discuss possible themes arising out of the Doe fact pattern. It will then discuss different strategies for opening statement and closing argument in a premises liability case. Obviously, as the facts of the case are not yet developed, it is difficult to move beyond generalities, but the following are techniques that we use in each of our cases.

Before we decide how to get there, where are we going?
Responsibility is the primary theme of the Doe case. The management company of the apartment complex had complete control of the premises, and it was their duty to inspect the railing. Since Mr. Doe had just moved in two days before the accident occurred, the management company had the opportunity to fully inspect the apartment after the previous tenant moved out. They failed in this responsibility, and they even promised that the apartment was "beautiful and in great shape." Mr. Doe could not be expected to learn of the unsoundness of the railing in the short time he was in the apartment. In addition to the responsibility of the defendants to inspect, Mr. Doe also has a responsibility to provide for his family. Because others failed to meet their responsibilities, Mr. Doe can no longer meet his. Out of this responsibility arises accountability. The apartment complex is attempting to deny their responsibility, and only through a jury can they be held accountable.

A corollary to the theme of responsibility is that of trust. We, the public, including Mr. Doe, his nephew and the jury, are not in a position to inspect every safety device with which we come in contact. Rather, we have to trust that the people who are in charge of ensuring that those devices are safe have done their job. When persons, such as the defendants, are careless and fail to do this duty, someone can have their life altered irreparably.

Counsel should also make the function of a railing clear to the jury whenever possible. A railing is not ornamental, rather it is a safety device. By its very nature, it invites people to lean against it. As such, it should be inspected at regularly scheduled intervals in order to ensure that it can properly serve its function.

Once these themes are identified, it is then the lawyer's job to develop the facts to support these themes. For instance, what is the schedule for inspections in the apartment complex, and do they comply with the building code? If the defendants are contending that this is a freak event, then what are the conditions of other railings in the complex? How is Mr. Doe as a father, husband, employee? Was he meeting all of these responsibilities? Which of these responsibilities can he meet now?

Counsel should not underestimate the intelligence of the jury. One of the biggest complaints of focus groups that we have conducted is that cases are often over-tried. It is tempting to make a point over and over again with as much evidence as possible. Jurors often will get the point with much less evidence, and the impact is greater when they are allowed to make a connection themselves, rather than being spoon fed entirely.

Lastly, there are two questions that we seek continually to answer through discovery and trial: (1) what did the defendant do wrong; and (2) what good will money do? If counsel can give the jury an answer to these two questions, he or she will have tried a strong case.

Never a second chance to make a first impression
As the plaintiff's attorneys, we have the privilege of being the first attorneys to speak with the jury. This is an incredible opportunity, as we shape the jury's initial impression. Whereas closing is about themes, the opening argument is first about facts—framing facts in a way that we want them framed, thereby laying the groundwork for the themes that follow. This is where we get to introduce Mr. Doe and his nephew, this is where we get to tell their story.

Various organizations and books posit the approach that opening statement should closely resemble closing argument, to the extent that an attorney can get away with this. We disagree. The initial focus of the opening statement should be to place the jurors in the shoes of the plaintiff. We would like the jury to start thinking about why this accident happened. How was this accident allowed to happen? Whose responsibility was it to inspect and ensure that the railing did not fail? Lastly, what are the effects of this accident on Mr. Doe's and his nephew's lives?

Another reason to favor telling the client's story over argument is jurors distrust of lawyers—especially plaintiffs' lawyers. Therefore, until counsel has built up some degree of rapport and trust with the jury, it is too early to make any form of argument. Rather, we just tell the story of our plaintiff in a manner which we know is going to be supported by the witnesses immediately following the opening statement. This will reassure the jury that what we have told them in opening will be supported by the evidence. We have taken a major step toward gaining their trust.

We are striving to present the facts in a nonconclusive manner, attempting to tell as compelling a story as possible. The first words should be designed to immediately grab the jury's attention. We would bring the jury back to the day of the accident, to one of those sparkling springtime mornings in Virginia that creates a sense of optimism in all of us. One of those mornings that makes us bring our coffee and newspaper out to the porch. The air is crisp and the birds are chirping. A typical morning in Mr. Doe's, or any man's, life. The jury will be attentive because they intuitively sense a calm before the storm. Counsel can increase the curiosity and tension by waiting to describe the accident. We can use the time to introduce Mr. Doe and his nephew. Mr. Doe had been a brick mason for twenty years. He was good at what he did, and he made a good living at it. He worked hard, and he was a good father and provider for his family.

And then the railing snaps. In a blink of an eye, lives are inexorably altered. The time it takes Mr. Doe to fall five feet equals the loss of sixteen future years of productivity. He can never again work in his life's trade. He can no longer provide for his family. Now is the time to tell the jury why this happened, to answer the question of what the defendants did wrong.

We can use the law, as we expect the judge to instruct the jury, as a framework for defining the responsibility of the defendants. The defendants had full authority and the duty to make reasonable inspections of the premises and to make needed repairs. If, through the use of ordinary care, they could have discovered the rotted railing in time to have it replaced or repaired prior to the fall, then they had a duty to do so.1 Here would be a good point to mention the rental agent's promise that the apartment was "beautiful and in great shape."

It is important to anticipate and explain the negative aspects of our case. This should not come at the end of opening statement but rather should be placed between our strong points. By acknowledging our weaknesses, we can frame these facts in a context that will be most favorable to us. We do not want to overdo this part of the opening, however, or we will appear to be setting up straw men.

Damages should not be overstated, and it is our practice to even understate them a bit at this stage of the trial. We would explain the injuries caused by the fall and Mr. Doe's expected prognosis. We can also explain the trade of a brick mason, the physical labor involved, and his yearly wage. If true, we would tell of Mr. Doe's desire to return to some type of work, even if he can no longer lay brick. With regard to his nephew, we would explain the limitations caused by his broken arm and the permanence of his facial scar.

Generally, we like to use an easel with a large sketch pad on which we write our main points prior to the opening. This gives both us and the jury a reference point, and it is less distracting than speaking from notes or a prepared speech. Counsel should never read the opening. We use whatever demonstrative evidence we are sure will be admitted—in this case, the piece of rotted railing. Finally, we concentrate on using powerful language, being concise, and keeping the argument as simple as possible. Each of these seemingly understated steps is integral in introducing our case to the jury.

All we have is words
Mr. Doe's life, and that of his family, is in our hands, and we have to convince seven people that they must make the defendants pay the debt they owe to him. We have thirty-five minutes in which to do this, and all we have is our words. Such an argument is helpful in conveying the gravity of the situation to the jury, but it is not, of course, completely true. We have (hopefully) done our convincing throughout the trial. Closing argument is for tying our case together, and in doing so, for empowering the jury. It is not for "winning" the case—certainly not for convincing the jury about liability. Some attorneys devote the majority of argument to liability and address damages almost as an aside. This is a mistake. At least half of closing argument should focus on damages.

A good closing argument is not a recitation of the facts and/or the witnesses. The words that we give to the jury are those that they are going to use in the jury room to argue the case to other jurors. We want to help the jurors who are already on our side in their future battle against the jurors who are leaning the other way.

Closing argument is an opportunity to empower the jury. The jury, through their verdict, has a chance to do something that is beneficial, not only for the plaintiff but also for the larger picture of public safety. The verdict will compensate and financially protect Mr. Doe, his nephew, and the family. It will also, however, tell this defendant and other landlords to properly inspect properties in order to prevent a similar tragedy from occurring in the future. The jury will be doing their part to make sure that rental properties remain safe. Again, if the jury fails to hold the defendants to their responsibility, who will? Without this jury, there will be no accountability.

Use of jury instructions is also important. Thus, the plaintiff does not appear as if he is trying to gain the jury's sympathy. Rather, this shows the jury that the law is on the plaintiff's side. It cloaks the plaintiff with authority—this is not just what we're saying, members of the jury, this is what the law of Virginia says. The law also presents the jury with guideposts to reach their verdict. The law says it was the duty, the responsibility, of the defendants to inspect the premises. Mr. Doe and his family trusted that the defendants would provide a safe apartment. It was their right to expect this security. We are seeking to weave together our themes with the law.

Again, Mr. Doe was assured the apartment was in great shape. Prior to Mr. Doe and his family moving in, the apartment was empty for at least a short amount of time. The apartment most likely was cleaned and possibly painted in preparation for the new tenants. What better time to inspect? Instead, the defendants merely painted over or ignored the rotten railing. Testing can be accomplished simply by knocking on the railing to see if the wood was still sound. In fact, the defendants put money ahead of safety and disregarded the law of the Commonwealth.

In anticipation of the defendants' argument, we would emphasize that the defect was hidden. Mr. Doe and his family did not know, nor did they have reason to know, about the damage to the railing. They had to trust that someone else would properly inspect the premises. Again, a railing is a safety device. It is far more important to inspect the railing than to repaint the walls or clean the carpet. Mr. Doe and his family had to rely on the defendants to make decisions regarding their safety. When these people did not do their job, the outcome became predictable. The real tragedy of these injuries is that they were so preventable.

For damages, it is important to personalize the injury. We seek to bring home the toll this fall has exacted upon Mr. Doe and his family. This is a man who worked all of his life and had a dignity in his work. He now cannot provide for himself, his wife, or two small children. While he will be subject to a life of pain, he will also be subject to a life of worry—how will he be able to support his family as he always has?

Here is the opportunity to answer why our client needs a substantial verdict. Mr. Doe is a young man with a family. How will he put food on the table? How will he afford basic medical care for his wife and children. How can he put shoes on their feet? Through their verdict, the jury will enable Mr. Doe to continue to meet his responsibilities to himself and his family. Through their verdict, they can allow Mr. Doe to reclaim some of the dignity that the defendants stole, both through their carelessness and also through their refusal to acknowledge their obligations.

Obviously, the wage loss combined with the medical costs is enough for a substantial verdict in this case. We would put his work life expectancy at 62 years of age. While this figure might be conservative, rather than the 65-year standard, we believe it produces trust with the jury. Mr. Doe is still a young man. Mr. Doe's special damages, then, amount to $798,000. While this is certainly a lot of money, it is not an amount to shrink away from. This is Mr. Doe's only chance to be compensated, he cannot come back if the money is depleted because he got less than full justice. If Mr. Doe can eventually return to some sort of work, we would also reduce his special damages by his potential earnings. Again, this enhances our credibility with the jury.

Just as in the opening statement, we also use the easel and sketch pad during closing argument. This lets the jury see our major points, and it gives us an outline from which to work. We also enlarge to poster size the duty instruction and the damage instruction. It is effective to go through each aspect of damages that the jury must consider. This shows the jury that we are not randomly making these requests for money, rather we are deriving our damages argument directly from the law of Virginia. Our manner is usually more persuasive and less conversational than opening statement—the jury must be convinced that we believe strongly in the argument we are presenting. Before sitting down, we will quickly present what the defendants' basic arguments will be and why they are inapplicable. This tactic can reduce the effectiveness of defendants' closing and will focus the jury on the plaintiff's response while the defense makes their argument.

Rebuttal
The rebuttal should not be a response to the defendant's argument. Rather, the attorney should have anticipated the defenses in his initial closing argument. The very first part of our rebuttal argument brings the jury back to our case. One argument that we often use is termed the "octopus argument," that is, when an octopus is in danger, he will emit a cloud of ink, so that he may slither away to safety. That is what the defendants are attempting to do in this case, to put up a cloud of smoke, and focus the jury away from the real issues of the case. Another argument in the same vein is that of a magician who uses sleight-of-hand to obscure the truth. Whatever argument one chooses, the crux should be that, while the defendant's arguments were very nice, we should focus instead on the facts, the truth, of the case.

We usually will talk again about the burden of proof. Often defendants will use terms such as "convict" or "guilty" in their argument. We focus the jury back onto the burden of proof in a civil case, and their commitment during voir dire to abide by the law.

The defense will invariably have made an argument that the jury's verdict should not be based on sympathy. The best counter to this is that the plaintiffs have received a constant flow of sympathy ever since the accident occurred. While that sympathy is nice, it is not particularly helpful. It is certainly not why they are here today. They are here for one thing: justice. It is the job of the jury to give this justice, and that is all that Mr. Doe and his nephew are seeking.

A common mistake is to spend the entire rebuttal addressing points made by the defense. We should have already focused on the main points that the defense makes, and we address those arguments by working those answers in throughout our argument. It looks overly defensive to address the defendants' arguments point-by-point. We, the plaintiffs, must define the issues of the case.

Finally, the last part of rebuttal must be the strongest point of our case. We must use whatever will best bring home to the jury the damage that this fall has caused Mr. Doe and his family. We want to present whatever will motivate the jury to want to help them adjust to the changes in their lives. We would again address the theme of responsibility–the responsibility to inspect, the reliance on the inspection, the failure to inspect, and the toll this failure has exacted on Mr. Doe and his family. Only the jury can make right the wrong that has occurred. Only through them will Mr. Doe receive justice.

Conclusion
The primary components to a strong opening statement and closing argument are the same as with any aspect of trial–intense preparation and frequent practice. Neither one alone will ensure success, but without them failure is inevitable. An attorney is challenged not to over- or underestimate the importance of the opening and closing but rather to see them simply as powerful tools in presenting his or her client's case. The unique characteristics of each render them separate in substance but equal in significance.

Endnote

1. Gumenick v. United States, 213 Va. 510 (1973).
reprinted from The Journal of the Virginia Trial Lawyers Association Spring 1999 with permission

Back to Articles Page

Copyright @ 2010 MichieHamlett