By Michael B. Langford
For a civil defense attorney, delivering a compelling closing argument in a wrongful death trial can be a precarious proposition. In contested liability cases, it means pointing out that in the last moments of the decedent’s life, he or she was negligent and therefore caused or contributed to his or her own death. This argument alone seems to run afoul of the aphorism, “speak no ill of the dead.” Meanwhile, the closing argument on damages usually entails the defense counsel contending that, notwithstanding the decedent’s merits as a human being and the family’s significant loss, the compensation awarded should not be nearly as high as the plaintiff’s counsel suggests. The task is further complicated by the emotion that blankets the wrongful death trial, which typically favors the plaintiff.
Yet, the very occurrence of a trial in a death case typically indicates that the defendant’s decision-maker believes that either the decedent bears a significant portion of the comparative fault, the estate is demanding too much, or perhaps both. This then means that the defense counsel should have plenty to discuss with the jury in closing argument. Here are a dozen tips to help develop and deliver an effective defense closing argument in a wrongful death case.
1. Emphasize the jury’s job is not to value human life.
For those regularly tasked with wrongfu l death case valuations, we understand that the goal is not about valuing human life. Rather, it is about valuing specific elements of damages that may be conferred under the Wrongful Death Act. Yet, it is easy enough for a jury to believe that a life is indeed being valued. Not only is that an incorrect interpretation of the Wrongful Death Act, allowing this concept to be advanced can lead to runaway jury verdicts that are disproportionate to what is right or fair. Therefore, defense counsel should make it abundantly clear to the jurors that they are to consider the allowed elements of damages, not to contemplate the value of a human’s life.
2. Acknowledge the difficulty of the task – both yours and the jury’s.
Be careful if you are arguing that the decedent is at fault. Tell the jury forthrightly that you recognize that it is typically not favored in human thought or discussion to criticize the actions of someone who has since died. Defense counsel’s discussion of the decedent’s comparative fault, employment history, or unfavorable personal habits extend beyond the polite discussions we would have outside the courtroom. However, the courtroom is the place – in fairness to all the parties – where those discussions must take place. That consideration is simply part of the difficult charge of the defense attorney’s job and then the jury’s duty while deliberating.
3. Make concessions.
Be reasonable in your interpretation of the facts, your arguments on the law and your approach with the jury. Part of being reasonable is making concessions. Acknowledge the strong aspects of the plaintiff’s case. In so doing, it lends fairness and balance to your approach and ultimately adds credibility to your contentions about the strength of the defense case.
4. Do not use humor or sarcasm.
Other than perhaps with an occasional overly ambitious opposing expert, defense counsel should avoid sarcasm in the courtroom. Sarcasm is an extension of its cousin, cynicism, and that can be an unbecoming trait in the courtroom, or anywhere. Occasional, spontaneous humor is not always a bad thing in the courtroom, but given the gravity of the subject matter, use humor sparingly. Trying to be too cute in closing argument, telling a joke or attempting to be funny in any way may be viewed as making light of a decedent’s life or death. A jury’s disdain for this approach may be reflected in its verdict.
5. Do not use canned arguments or stories that you try to fit into all of your closing arguments.
If you need to make an illustration, be sure it is one you have rarely — if ever — used and ensure that it is most specific to your case. Defense counsel often weave clever metaphors, historical references or anecdotes into their closing arguments. No doubt, such rhetorical devices are clever ways for making a point, but be smart with their use. You have to make sure the rhetorical device fits perfectly in the closing argument. Just because it worked well in your prior wrongful death case does not mean that it fits here. Also, in thinking about your closing argument before you deliver it, dissect that story or metaphor in the same way opposing counsel would. Make sure that it is not susceptible to being cleverly undone or turned on its head by opposing counsel’s rebuttal. There are not many worse feelings at trial than witnessing your own metaphor or anecdote being unpacked on you and then expertly used against your very argument.
6. Truly rebut the plaintiff’s counsel’s closing.
This will be your last opportunity to speak to the jurors before they speak to you with the verdict. Defense counsel needs to guard against having a completely scripted closing argument. In the first part of the closing argument, perhaps plaintiff’s counsel said something surprising or factually incorrect. This is your last chance to make sure that you have addressed plaintiff’s counsel’s inaccurate or incomplete arguments as well as plaintiff’s most compelling arguments. You cannot anticipate everything plaintiff’s counsel will say in closing arguments, so be prepared to extend your prepared remarks to address them.
7. Do not ramble.
Get to your point. Even if the court imposes no time limits, impose time limits on yourself. Keep your argument taut. A few concisely crafted arguments are always better than many thinly developed assertions.
8. Remind the jury if plaintiff’s counsel failed to deliver promises made in opening statement.
If plaintiff’s counsel did not prove that which was suggested in opening statement or during voir dire, then point out this failing. Do not let the jury consider facts that were merely predicted but never entered into evidence.
9. Order and recite from transcripts of important testimony.
Sometimes, especially in a longer trial, critically important testimony can be forgotten or minimized. Trial counsel might even disagree that what witnesses said or the context in which the testimony arose. Therefore, throughout the trial, regularly request the court reporter transcribe key testimony. Emphasize to the jury that these are the actual transcribed words that were testified to at trial and not your words. Enlarge the transcribed words or incorporate them into a closing argument PowerPoint so the jury can see the words in writing.
10. Do not read closing arguments and rarely use notes beyond the simplest of outlines.
Give solid, continued eye contact. Be persuasive without being glib. Be direct without being harsh. But most of all, be genuine and credible in your closing argument. You cannot be any of those things or do them well if you are busy staring at your notepad.
11. Always give a suggested award amount if liability is conceded or likely, and maybe even when liability is unlikely.
If defense counsel does not provide a suggested number, then the only recommended verdict numbers the jury will hear are those from the plaintiff’s counsel. Without your number, there is no anchor or even the beginning of a continuum for the jury to consider between your recommended number and plaintiff’s recommended number. Defense counsel therefore needs to give the jury an earnest recommendation on damages.
12. Talk specifically about the elements of damage the jury can award and those which it cannot.
Indiana does not allow for special interrogatories as part of the jury verdict forms. Nor do the pattern jury verdict forms contemplate line item awards, beyond the total sum on the verdict form. Still, defense counsel must be specific about the damages that should and should not be awarded. As to damages that should be awarded, go through the damage elements on the jury instructions, allocating specific amounts to each element. Be specific to the penny, where you can. Also, point out to the jury those elements of damages that they cannot award, including attorney fees, damages for the survivors’ grief and pain, and suffering experienced by the decedent. From observing mock juries deliberate, I have too often seen juries create new elements of damages — chief among them are attorney fees. This is improper under the law, and the jurors need to be cautioned about what damages they can and cannot award, consistent with their oath to follow the law as instructed.•
Mr. Langford is a partner in the Indianapolis office of Scopelitis Garvin Light Hanson & Feary and is a member of DTCI. The opinions expressed in this article are those of the author.