Trial Magazine

Closing arguments provide an invaluable opportunity for plaintiff lawyers to summarize the relevant testimony, facts, and evidence that jurors have seen and heard during trial. An impactful closing argument can defuse the defendant’s main points and give jurors the tools they need to return a verdict for your client.

One of the best opportunities to make effective arguments during closing is the rebuttal. This can be even more important than the closing argument itself. You should not undervalue this additional time to speak with the jury. Your rebuttal is the last thing jurors will hear before the judge gives them instructions, so leave them with a powerful, lasting impression of your client’s case. The most effective rebuttal argument addresses the defendant’s closing argument, emphasizes your case’s strongest points, and highlights the holes in the defense’s case.

Be prepared but stay flexible. Before closing, you should have some idea of the arguments defense counsel is going to make so you can plan a comprehensive rebuttal structure in advance. But remember to pay close attention while defense counsel is speaking and take as many notes as possible during their closing so you can respond directly to their arguments.

Make your rebuttal impactful. Using and displaying pertinent portions of the witnesses’ testimony can be very effective. If possible, order daily transcripts of the proceedings and review them throughout the trial, highlighting the portions you want to use during your closing argument. Use defense counsel’s statements in opening or closing against them. Listen carefully and note whenever they make any claims that haven’t been proved during trial. The goal of a well-tried case is to convince the jury to trust you and not the defense.

Showing defense counsel’s unsubstantiated statements or broken promises is an effective way to cast doubt on their case. For example, if defense counsel argues in closing that it is their client’s custom and practice to review a patient’s chart, show the jury during rebuttal the parts of the record the doctor conveniently missed that would have changed your client’s outcome. Then ask: If the doctor did what their lawyer claims, how were these things overlooked? The answer is simple: Things didn’t happen the way defense counsel claims.

Most important, reserve one or two central issues for rebuttal in closing. In every case, there is a specific point that you know the defendant will have to raise. This should cover most of your rebuttal, and you should prepare your presentation accordingly. Make these issues or themes the central point of your rebuttal and tether the relevant and persuasive evidence shown during the trial to these topics.

In a med-mal case my firm tried, we knew that defense counsel had to raise the fact that our client signed a consent form. We reserved an exhibit for rebuttal highlighting the confusing and poorly written consent form our deceased client had signed. This exhibit—a rewritten version of the form—showed the jury how simple it would have been to prepare a consent form that served the claimed purpose. Reserving a poignant, thoughtful response in rebuttal closing—one that the defendant can no longer respond to—leaves a lasting impression on the jury.

Be creative. Your rebuttal closing should be emotional and passionate, with the goal of empowering the jurors with the belief that this case is an opportunity for them to do something that will have a lasting effect on the life of your deserving client. In a wrongful death case, for example, be sure to discuss all the life experiences the decedent and their surviving family will miss because of the defendant’s negligence.

While trials can get bogged down with facts and science, clients’ harms and losses are the primary issues and must be at the forefront of jurors’ minds when they begin deliberating. The best strategies I’ve learned are through watching colleagues at trial and attending AAJ’s conventions to hear the tried and tested methods used by some of the country’s most prominent trial lawyers. Incorporate their suggestions in your own rebuttal closings.

David A. Neiman is a partner at Romanucci & Blandin in Chicago and can be reached at dneiman@rblaw.net.