McElhaney on Making Your Closing Argument a Really Good Story
Last night’s bar association program with Angus and Judge Standwell was on final argument, and the room was packed. I didn’t even see that Professor Warbler was there, with several copies of his book, Killer Kross, until the judge asked me to open a few of the windows in the back of the room to let in more air.
Well before the program began, six or seven lawyers —including leading members of the local bar—gave Angus printed copies of final arguments they were planning to give in upcoming cases, asking for his thoughts and suggestions.
At 7:30 p.m. Angus stood up and said, “It’s Judge Standwell’s turn to begin this evening, but he asked me to surprise him with the first topic. So here it is: Judge, what is the worst mistake you see lawyers make in final argument?”
“The worst mistake is also the most common,” said the judge. “Writing out your argument in advance and then reading it to the judge and jury.” Out of the corner of my eye I saw the president of the city bar association sink several inches lower in his seat.
“What’s wrong with that?” said Angus.
“First, unless you’re a professional script writer, you don’t write the way you talk,” Standwell said. “As badly as we speak, most of us write a lot worse. We use unforgivably big words, working them into compound and complex sentences.
“We ought to have a simple-speaking rule: one idea per sentence, with no unnecessary adjectives or adverbs. That’s something you don’t find in almost anything a lawyer writes.
“Second, when you’re reading to the judge and jury, you’re not looking at who you’re talking to. Not only is that rude—you can’t tell how you’re coming across.
“Third, your pace and emphasis will be all wrong because they’re built into what you wrote. And you’re not responding to how your listeners are reacting to you and what you say. Besides, if you’re speaking second, what you’re reading probably won’t have much to do with what your opponent just said.”
“So what are you telling these lawyers,” said Angus, “to memorize everything they say?”
Judge Standwell laughed. “If anything, that would be worse,” he said. “Instead, learn how to work extemporaneously with only a few pages of written notes. What that lacks in verbal polish will be more than made up for with simple sincerity.”
Continue reading the full article “The Arsenal of Persuasion: Make your closing argument a really good story” in the July ABA Journal.
