A good closing argument won’t win a case on its own — but, a poor one can surely lose it.
The closing argument provides the jurors with support for the opinions they have already formed. While an attorney is usually given a relatively wide berth when it comes to arguments, there are still rules that must be followed. Often, the rules have been learned, but little thought has been given to the reasoning behind them. This article looks at the purpose behind the various rules governing a closing argument to help litigators better understand what is, and, is not, permissible argument.
First, counsel has a legal right to make a closing argument. IC § 34-36-1-1. However, the court is given wide discretion to regulate the timing of closing arguments. Typically, lawyers are given wide scope in their closing arguments by both by judges and opposing counsel. There is nothing unfair or prejudicial about persuasive, final argument by a party, so long as the attorney’s comments are reasonably calculated to sway the jury to the party’s point of view in light of the evidence adduced at trial, and so long as the attorney makes no deliberate distortions or improper comments. White v. State, 541 N.E.2d 541 (Ind. Ct. App. 1989).
Closing argument is the one time during the trial that an attorney is allowed to tell the jury what she thinks of the evidence, and how the facts fit her theory of the case. Because of this, a lawyer will want to limit the potential for interruptions in the form of objections and admonishments from the court.
Trial counsel may state the proposition of law on which she relies. Drossos v. State, 442 N.E.2d 1 (Ind. Ct. App. 1982). In fact, an attorney may delineate the difference between her interpretation of the law and that of courts and what legal authors have written. Johnson v. Culver, 19 N.E. 129 (Ind. 1888). However, it is generally improper for counsel to read law or legal books to the jury.
Counsel should state the evidence accurately, without implying personal knowledge independent of the evidence. Brumfield v. State, 442 N.E.2d 973 (Ind. 1982). Trial counsel can, however, state what she believes the evidence to be and may make proper inferences and draw conclusions from it. Brower v. Goodyear, 88 Ind. 572, 1883 WL 5501 (1883). She may also argue to the jury by commenting on matters of common knowledge outside the record or argue self-evident facts. Thomas Madden, Son & Co. v. Wilcox, 91 N.E. 933 (Ind. 1910).
An attorney cannot vouch for a witness. According to Indiana Rule of Evidence 608, evidence of the truthfulness of a witness can be admitted only after the credibility of the witness has been attacked. Regardless of this, it would be improper for the attorney representing the client to attempt to vouch for the witness, as this would be considered testimony on behalf of a client, which is contrary to rule 3.4(e) of professional conduct.
It is improper to intentionally excite passion, prejudice or sympathy from the jury by using inflammatory language. It is the unquestionable privilege of counsel to indulge in all fair argument in favor of the contentions of her client. However, the lawyer goes too far when she attempts to excite prejudice in the minds of the jury against an adversary, thereby drawing the minds of the jury away from the matter of the dispute and subjecting them to influences entirely foreign to the case. Limp v. State of Indiana, 431 N.E.2d 784, 788 (Ind. 1982). For similar reasons, it is improper to advocate the Golden Rule, or to advocate “send a message” in closing arguments. To suggest that the jury should put themselves in the place of a party rather than in the place of an objective neutral is inappropriate and objectionable. This practice is universally condemned by courts and could be the basis of a mistrial. Spray-Rite Service Corp. v. Monsanto Co., 684 F. 2d 1226, 1246 (7th Cir. 1982), aff’d 465 U.S. 752 (1984).
Finally, abuse directed at opposing counsel, such as comments denigrating her personality, are outside the scope of proper argument, and when carried too far, may result in the granting of a new trial or a reversal. Loveless v. State, 166 N.E.2d 864 (Ind. 1960).
While most practicing attorneys have some understanding of what is and is not appropriate during a closing argument, knowing the basis of these rules can assist us in keeping our closing arguments clean and effective.
• Mr. Freyberger is a partner in the Evansville office of Wooden McLaughlin and is a member of the DTCI Board of Directors. The opinions expressed in this article are those of the author.