Are Closing Arguments Necessary?

I wonder, increasingly, whether we lawyers overstate our importance at trial. I realize that this is counter intuitive to those who view lawyer's as the star of the show. But trials are supposed to be about fact-finding under the rule of law. Do lawyers get in the way?

I tried something yesterday that I had only done once before in my career: I waived closing argument in a criminal case. The stakes in the case are high. My client faces seven counts alleging various acts of sexual misconduct with a child. The allegations took place eight to ten years ago.

In a criminal case, the prosecution gets two chances to argue to the jury; the defense gets one. The theory goes something like this: The state argues what it thinks it has proven. The defense then gets a chance to argue its case, and to rebut the state's claims. The state then argues one last time to rebut the defense.

In fact, many prosecutors save all their best stuff for their last argument, giving the defense no opportunity to address the jury on the state's more controversial claims. It is common for prosecutors merely to recite the law governing the case and to lay out a simple narrative rehearsing the barest bones of their case in their opening argument. Hiding their major theme until the final act is a sound tactic.

Yesterday, the prosecutor in my case gave a textbook example of hide-the-ball opening argument. The first three minutes of his "argument" was merely a repetition of the complaining witness' testimony with simple declarative sentences about what other witnesses said: a sort of TV Guide version of the trial condensed into uncritical and bland prose that were not intended to persuade. He spent the balance of his time merely reciting the law the judge was about to read. He ended with a simple request for a guilty verdict. The state failed in its opening to address any of the weaknesses in its case. It was not really argument at all.

The argument lacked any persuasive force at all, and was not designed to persuade. As the jury had heard two weeks of evidence already, the state did not inform either. And as the judge was about to charge the jury on the law, the state's presentation really did nothing at all. As the state sat down, I wondered why it had bothered to speak.

My client and I were stunned. All the drama and stress of trial for this? My client and his witnesses and had just testified. There was no need to remind the jury of what they had just said. And the themes we hoped to argue were already set in the cross examination of the state's witnesses and by our witnesses. If by arguing we really were going to do nothing more than give the state a final shot at what we had already laid before the jury, what, frankly, was the point? We picked a smart and self-confidence jury. We trust that group.

So we waived closing argument. The last evidence the jury heard was my client. The state never commented on his testimony or the testimony of our other witnesses in its closing statement. By failing to critically engage our case at all and merely repeat in the most bare bone terms possible the accusations against my client, the state's closing statement did a far better job of presenting our case than I could have done: In bringing this case the state heard what it wanted to hear and ignored all the rest.

Of course, I worry that I made the wrong call in waiving argument. But part of that is sheer ego. I argue well. Like most defense lawyers I harbor deep fantasies of setting men free with the power of my voice and my skill as a rhetorician. But trial is not about the lawyers. I part company with those who argue that it's all about the lawyer: when Narcissus fishes he hopes to catch something more than his own reflection.

The jury went out yesterday and resumes deliberations on Monday. They heard the evidence and the law. I doubt any argument any lawyer would have made would really change the outcome. A well tried case should leave nothing undone by the time the case is given to the jury; this case was well-tried by both sides.

I went to sleep wondering last night whether closing arguments are really necessary. Some part of me imagined that they are really counterproductive, transforming trial into something other than a search for the truth. I wonder how I will feel after the verdict is returned in this case?

Comments: (12)

  • I wonder if you would have the same thought to wai...
    I wonder if you would have the same thought to waive closing arguments in the cases where you represent the plaintiff.
    Posted on December 12, 2009 at 6:06 am by Anonymous
  • Great point. I probably would feel differently, bu...
    Great point. I probably would feel differently, but for all the wrong reasons.
    Posted on December 12, 2009 at 9:22 am by Norm Pattis
  • I wonder if Opening Remarks should be omitted as w...
    I wonder if Opening Remarks should be omitted as well? How about omitting the Examination and Cross-examination of witnesses, as we all know the defendant 'probably did it' and witnesses often lie 'under oath', even though we have sworn to regard him [the defendant] as 'innocent until proven guilty beyond a reasonable doubt'? Why not dispense with criminal trials altogether, as it takes up just so much 'precious court resources'; the players are all 'overworked and underpaid'; the prisons are now overflowing and the states are running huge budget deficits which must be closed?
    We also now know that the prison experience is non-'rehabilitative'. A guest on Talk of the Nation, NPR two days ago made the remarkable assertion that many prisoners [who are essentially non-violent] come out of prison more violent than when they went in. Many have no place to live, no job and minimal-to-nonexistent skills. Many employers will not hire ex-convicts. Would this not be the case in the alleged Cheshire perpetrators, Hayes and Komisarjevsky? Hasn't anybody thought that perhaps the State itself may have some cause to share blame for the post-prison behavior of these two monsters? Does anyone seriously think that the State itself will entertain this hypothesis?
    My Question is this: If Mr. Pattis's client loses, does he [the now convicted defendant] have cause for appeal based on the lack of 'the effective use of counsel'? After all, are not the Closing Arguments a standard part of the criminal process itself? Does the Defendant not have a reasonable expectation that his attorney will at least go through the motions, as the other participants (judge, prosecutor, witnesses, expeerts and finally jury) go through their respective rituals? To simply sidestep the onerous and distasteful task of making a closing argument may in fact be described as a 'dereliction of duty'.
    Don't get me wrong. I am saying that it is, but this novel idea could well be viewed as such by others. Personally, I think the whole criminal 'justice' enterprise is an archaic, inexplicable relic from a bygone era. It does not work, simpley. It is cumbersome, Byzantine to the nth degree, inefficient and simpley Unfair. Why as an advanced civilization we tolerate this institution which cannot do what it is supposed to do, which piles charges onto unsophisticated, undereducated, poorly represented and occasionally innocent, unfortunate members of society is beyond me.
    The symolisms are all wrong: the massive Corinthian columns as you enter a building better suited to be a museum; the judge in black robes, sitting high on a lectern where she can 'look down' on all participants. The requirement that she be called 'Your Honor' is simply alien to the ideals of a democratic republic. Why would anyone voluntarily go into this kind of work? I choose to make an 'honest living' in this lifetime instead of wrecking individual lives, families, businesses, neighborhoods and communities on a daily basis,...often without warrant, probable cause, or common sense.
    The legal profession today is largely run by a cartel of arrogant pseudo-sophisticated, pseudo-educated, dishonorable men and women who themselves are ignorant of the 'law' and unable to follow their own rules and regulations with any kind of consistency, oversight or accountability. As I told the 2nd Circuit Court of Appeals, April 3, 2008: "If this [district court] decision is allowed to stand, this will send a signal to the State that it can charge Anyone with Any crime, Anywhere, Any Time--without true oversight or accountability--and get away with it in real time." I felt that way then, I feel that way now.
    Posted on December 14, 2009 at 12:39 am by William Doriss
  • The State of CT is running a criminal justice Ponz...
    The State of CT is running a criminal justice Ponzi scheme of the highest order. You could not pay me enough money to participate in this shameless, shameful activity. I read Mr. Pattis's stated reasons for skipping the Closing Argument, but understand Mr. Pattis's reasoning to be somewhat disingenuous, or at least a little more complex. Perhaps he was just tired and discouraged. I understand that; we all have 'bad-hair days'. I hope it does not backfire and come to haunt him; and then we the visitors here may be subjected to his regrets and recriminations, regarding same, posted on this very blogsite in the near future.
    Recommended Reading: Annals of Law: "The Celebrity Defense," Sex, fame, and the case of Roman Polansky, by Jeffrey Toobin, The New Yorker, Dec. 14, 2009. There's plenty to chew on in this well-written essay. I don't have to tell anyone whose side I'm on. Read this essay. You will not be disappointed.
    Posted on December 14, 2009 at 12:47 am by William Doriss
  • GUILTY ON ALL 7 COUNTS - by an eight member jury w...
    GUILTY ON ALL 7 COUNTS - by an eight member jury within a day's review of all evidence. Everything... from the subject matter experts, to the quality and credibility of witnesses - to the slovenly way the defense attorney and defendant presented themselves at their table. It all added up - and it was an unequivocal and obvious GUILTY verdict. Does anyone understand?... why would the defendant coach a young girls soccer team for a couple seasons?... with no children of his own (much less daughters!) - always wanting to be with the children at family functions!... and we trusted this poor, pathetic, sick individual. I PRAY that this guilty party never harmed or preyed upon any of his other young family members or other children that were placed in his stead all these years (although it is unlikely). I pray that if they find out about the justice handed down today - that THEY will be brave and come forward as well. Shallow is the comfort for the horrific, scarring experiences of an innocent child - her innocence violated repeatedly - who's own life and the life of her family - was threatened repeatedly if she were ever to 'tell anyone'. STRONG - was the victim's will to bring justice and closure to all of this - so she can live a happy and normal life... for the rest of her life. The guilty criminal was wrong! We LOVE and BELIEVE the victim! We would NOT run and hide. We would NOT let the feelings of SHAME diminish our overriding and unending love for this precious child - this gift from God.
    It is in the LIGHT, where truth is revealed – for ALL to see - no matter what the cost or the pain might be. It is the only way to peace and freedom from such a horrific act like this – perpetrated upon an innocent child. This was a little girl who loved and adored her ‘uncle’ and aunt. She had no reason whatsoever to contrive such an awful list of abuse. Tell me... who of you, were in the courtroom to hear testimony - to actually witness the testimony? Would you blindly believe this self-indulgent, narcissistic atheist - that spews trite on this blog without any other evidence at all to present to you at all – except his own? How just and fair is that? Were you there to look into the victim's eyes - and see... and listen to the long list of family, friends and professionals that stood behind the victim and testified against a sloppy, pride filled and smug defense? Were you there to FEEL these events unfold?
    It may seem to work well Norm - this one-sided approach to pontificating your own personal world view of how your client could NEVER have done this – here in the safety of your blogosphere... but the reality of it is - GUILTY!... on ALL seven counts. Move on to your next trial and try it again. You know in your stone cold, heart of hearts – that this was only a payday for you... nothing more... nothing less. As articulate as you may appear to be in your writing style - here in your ‘blog womb’... you are an aberration and an abomination of what justice truly stands for - and it was self evident in the result of this trial.
    And Norm?... lose the ponytail. It is SO passé.
    Let's see how long this ANONYMOUS post stays up. I'd be willing to bet a good wager that ol' Norm takes down the ones that don't suit his particular agenda. I'll get a snapshot of this to show that it was up - and check back over the next few days... let's just SEE if Norm has the testicular fortitude to accept an opposing view - yes? Read carefully and thoroughly between the lines of what exists in this virtual space. Then know... there IS a God - and there IS real justice where there is TRUTH.
    Posted on December 14, 2009 at 10:53 am by Anonymous
  • Anon
    god is so lucky to have you on his side. Than...
    god is so lucky to have you on his side. Thank you for reading, and if you ever care to talk about your hatred of all things you disagree with call me. But must use a name if you call. And I mean a real name, not some prissy pseudonym. But that is asking too much.
    But again, thank you for reading, caring and reminding of the importance of defending even the most unpopular from the likes of you.
    Posted on December 14, 2009 at 11:08 am by Norm Pattis
  • EJ looked bad on the stand but this note of hers i...
    EJ looked bad on the stand but this note of hers is over the top. Chill girl
    Posted on December 14, 2009 at 11:19 am by Anonymous
  • Thanks, Mommy. But why were you too busy to care w...
    Thanks, Mommy. But why were you too busy to care when I needed you?
    Posted on December 14, 2009 at 11:31 am by Anonymous
  • How pathetic. Blogging your own blog in your own '...
    How pathetic. Blogging your own blog in your own 'defense'. How perfect. How typical. How God-like.
    Posted on December 14, 2009 at 2:59 pm by Anonymous
  • thanks for sharing this blog on Pattis
    he likes th...
    thanks for sharing this blog on Pattis
    he likes the attention doesn't he?. maybe we should mass mail this sham filled site address and have all good citizens raise some real awareness! what a joke he is. note 3:08pm, 3:19pm, 3:31pm. probably all Norm Pattis theater. quite the showman. rh
    Posted on December 14, 2009 at 3:05 pm by Anonymous
  • norm is scaredy fraid. not letting any more posts ...
    norm is scaredy fraid. not letting any more posts through on this thread. let's go structure a hack. snapped screenshots
    Posted on December 14, 2009 at 3:41 pm by Anonymous
  • i am not so well with words as i am not from this ...
    i am not so well with words as i am not from this country, but i do not need to be from this country to see how easy it is to ruin a mans life. how easy it is to be accused, it is only understood when it happens to you or some one you know.guilty until proven innocent, this is what goes in this country. and don't just run to church every sunday and then put your religion on some one else,who are you to critize one the looks,clothes or anything else?first they pray then they prey.look around,registries are growing in alarming rates due to accusations,threats and promisses made.experts direct questions and explain answers to their needs.abuse of children is the worst crime and no one should go through anything like it.but i hope this man gets a fair chance, that common sense, which is missing in this country,will bring out the truth. and as far as education for all those out there, who so easely jump on the band waggon read,educate yourself, find out how easy it is to be accused- accusation alone is enough. and i am not afraid to leave my name, renate,
    Posted on December 14, 2009 at 6:07 pm by Anonymous

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