Prep from Day One
It is too late to think about summation as the last witness is leaving the stand and the judge is instructing the jurors to return the next day to hear summations and charge. Preparation for an organized summation should begin before the trial even starts; with a summation folder or summation tab in your trial notebook. Before you begin the trial you should have a general outline of what you expect to comment on in summation, and the order in which you intend to introduce the issues. To avoid a weak introduction or a weak conclusion, try preparing the introduction and concluding remarks of your summation well in advance. During the course of the trial you can add, modify and supplement what you would like to say in the body of the summation based on what happens in real time with the witnesses.
Start by Reintroducing Your Rules of the Road
Most attorneys begin the summation by thanking the jurors for the time they have spent on the case and the attention they have devoted to the witness’ testimony. Subsequently the jury must be reminded of the central theme of the case or the rule that was violated by the defendant, and how the witnesses have all agreed to what the rule is, and how the facts prove the rule was violated. Keep this as tight as possible. Hit the important notes, and don’t obfuscate them.
Frame Your Case Using the Interrogatories, But Keep it Simple
Next, as an organizing principle of the body of the summation, the attorney should use the jury interrogatories as landmarks for reference points. Tell the jurors that they will be asked very specific questions by the judge, and that the answers to the questions will be used by the judge to create the verdict and determine the outcome of the case. It is critical to go over each interrogatory the jurors will be asked, and to suggest how the interrogatory should be answered. Thus, in a non-bifurcated trial, the summation proceeds through each liability question, to the proximate cause question. Do not take for granted, for example, that the jurors understand the causation question, because causation can sometimes confuse jurors even in the simplest cases. Tell the jurors what evidence compels the answers which favor your client.
Strike at the Defense, but Pick Your Battles
Next, address and debunk the defenses raised by your adversary. All too often, both experienced and inexperienced plaintiff attorneys become so agitated at the defense summation that they spend the better part of their own summation chasing the missiles the defense attorney has fired off. They sometimes fail to fully return to the plaintiff’s themes and plaintiff’s proofs. Address the defense arguments, but do not permit the defendant to dictate the course of your summation. Stay within the mental framework of your own narrative, and don’t give defense the advantage of fighting on their turf.
Don’t be Shy about Your Damages
With the defenses dealt with, and the arguments for a plaintiff’s verdict on liability laid out, turn to the damages interrogatories and remind the jury of the special and general damages. These are the consequences of the defendant’s rule violation. Here, the plaintiff’s attorney asks for a specific damages amount for past and future pain and suffering, medical bills and lost wages. Rare is the case where a plaintiff attorney will not advise the jury what money damages he believes are appropriate. Jurors have no reference point for the value of an injury and are anxious to know how the attorneys value the case, even though they are inherently suspicious of both plaintiff and defendant attorney remarks on this subject.
Empower the Jury
Finally, the conclusion. It’s always a smart play to conclude by uplifting the jurors. Remind them how important their work is, and if you’re the type to try to introduce some levity into things, this would be the time to do it. After all, they’re probably feeling a bit beat up at this point.
Appeal to the noble aspirations of the jurors to do justice, to set things right, to bring closure for the parties, and to do something the jurors can be proud of. They need to understand that making an award is something they can feel proud of. However you go about it, you need to instill the idea that the jury has the power to do something big. Try to guide them to the emotional inspiration they need to step up and use that power. Once you feel like you’ve gotten them there, take a seat. Leave them with those feelings as the freshest thing in their minds.
Next week we’ll finish out this guide to openings and summations by taking a look at some specific techniques to try out during summations, as well as things to keep in the back of your mind as they go forth.