Benchmarks – May 2019

Closing Time

Baseball season is upon us, and baseball fans know one of the most important people on the team is the pitcher who is called upon near the end of the game. Despite all the events that unfold during the game, nothing is as important as getting the last few outs and securing his team’s win. The title given to this pitcher is, appropriately, “The Closer.”

Similar to how baseball may be won or lost in the final moments of a game, the same may be said of how important the attorneys’ closing arguments may be. Closing arguments are the final opportunity for the attorneys to speak to a jury before the jurors begin their deliberations and (hopefully) render a verdict.

Closing arguments in civil and criminal cases are very similar in that both sides have equal time to give their final arguments. The party with the burden of proving the case—the plaintiff or prosecution—has the opportunity to divide this time between an opening argument and a rebuttal after the defense has given its closing argument.

When determining how much time each side desires for their closing arguments, trial courts are afforded the discretion of setting a time limit. However, I generally permit the attorneys to set their own time limit for closing arguments. Most trial lawyers would agree that having the final opportunity to speak to the jury is often viewed as an advantage. Knowing this, I’m always interested to see how the attorney for the plaintiff elects to divide their time for closing arguments.

Years ago, I presided over a civil trial where the attorneys agreed to 30 minutes for closing arguments. Despite having the right to apportion this time as he wanted, the plaintiff’s attorney used 27 minutes for his initial closing argument. He played a portion of the video deposition of a doctor that did not appear to be crucial to the case. The defense attorney then made his closing argument and ended it by reminding the jury of the plaintiff’s burden of proof and posing several rhetorical questions to the plaintiff’s case. The plaintiff’s attorney appeared frustrated when he stood for his rebuttal argument, and I informed him that he had three minutes remaining. The plaintiff’s attorney simply had not reserved enough time to address the issues presented in the defense attorney’s closing argument.

The trial judge instructs the jurors that what the attorneys say during closing arguments is not evidence and the jury is not to consider it as such. But this does not mean the attorneys can say whatever they want. One of the common errors made by attorneys is when they ask jurors to “imagine how they would feel” or to “put themselves in the shoes” of one of the parties in a case. These statements are characterized as improper “golden rule” arguments.

Trial lawyers typically pride themselves on their ability to deliver closing arguments. Just like the end of a baseball game, the verdict in a jury trial may be decided by the very last pitch.

Judge Steven G. Rogers currently serves as a circuit court judge. He lives in Ocala with his wife, three children and an extremely spoiled Australian Shepherd.

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