Prove it! Musings on advocacy, evidence, and the problems of proof at trial: Getting the First and Last Word
I doubt there’s a prosecutor or plaintiff’s lawyer in the state who would give up the opportunity to be the last lawyer to address the jury in a contested case. Getting the last word is important. The principle of recency tells us the people tend to remember what they hear last. What better way to send the jury into the deliberation room that with your powerful closing argument ringing in their ears?
But there’s another principle of persuasion that seems to get overlooked in many North Carolina courtrooms. The principle of primacy tells us that people tend to remember what they hear first. I find it curious that so many prosecutors and plaintiff’s counsel routinely waive the opportunity to speak to the jury in closing argument first and settle for just going last.
As a general rule, the party with the burden of proof has the right to open and close the final argument to the jury. Fed.R.Crim.P. 29.1; LR 39.4, Rules of Practice and Procedure of the United States District Court for the Eastern District of North Carolina; LR 51.1(a), Rules of Practice and Procedure of the United States District Court for the Middle District of North Carolina; See also, Ronald M. Price, North Carolina Criminal Trial Practice, §23-2 (4th ed., 1994); J. Alexander Tanford, The Trial Process: Law, Tactics, and Ethics, § 9.03[B] (4th ed., 2009); Steven Lubet, Modern Trial Advocacy: Analysis and Practice, 487-488 (3d ed., 2004); Thomas A. Mauet, Trial Techniques, §9.3 (8th ed., 2010); Marilyn J. Berger, John B. Mitchell, & Ronald H. Clark, Trial Advocacy: Planning, Analysis, and Strategy, 559 (2d ed., 2008); Charles H. Rose, III, Fundamental Trial Advocacy, 15 (2d ed., 2007).
North Carolina practice, like most other jurisdictions, envisions closing argument in three parts: the party with the burden of proof, the plaintiff in civil cases and the state in criminal cases, goes first and delivers the “opening” of the closing arguments. The opponent then delivers his full closing argument followed by the party with the burden of proof delivering a rebuttal or “final” closing argument. In an exception to this general procedure, Rule 10, General Rules of Practice for the Superior and District Courts, specifically bestows upon the defendant the “right to open and close the argument to the jury” if the defendant elects not to offer evidence. In that situation, the defendant gets to address the jury twice in closing argument, getting both the first and last word.
Since the rule is clear that the defendant gets to go first and last when he presents no evidence, let’s consider the case in which the defendant, either in a criminal case or a civil action, does present evidence. What does the District Attorney or plaintiff’s counsel do at the close of all the evidence when the judge asks, “Will the State [or Plaintiff] have a closing argument?” All too often the reply by the District Attorney or Plaintiff’s counsel is, “We waive our opening, Your Honor.”
“Very well,” says the judge, “the jury is with the Defendant.”
What has the lawyer waived by declining the opportunity to get in both the first and last word in closing argument?
First, the lawyer has forfeited any benefit that may accrue from the principle of primacy. People tend to remember what they heard first and by waiving the opportunity to speak first, counsel has lost that benefit. Not only has the lawyer forfeited the benefit of that principle, he has actually conferred it on his opponent! That doesn’t seem to make a lot of sense.
Second, the lawyer has lost the opportunity to reinforce his theme and theory before the defendant begins to attack it. That’s important because the party with the burden of proof has the burden to convince the jury of the righteousness of his cause. That should be our goal in every phase of the trial, especially closing argument. Up until this point in the trial, the jury has been treated to the facts through dribs and drabs. Pieces of the story have come in through various witnesses on direct, only to be contradicted and challenged by the opposing side’s cross-examination. No one has yet put all the pieces together. To be sure, an effective opening statement and a well-prepared and presented case should give the jury a clear picture of your theory even without you having to pull it together for them. But things never go as planned and the opponent’s evidence will always create a wrinkle or two. Ceding to the opponent the first chance to offer a perspective on all the evidence actually presented makes it more difficult to refocus the jury on your theory when you do stand before them. You have to overcome the opponent’s perspective before you can begin casting your own, and the principle of primacy tells us that it may be difficult to dislodge the perspective the jury heard first.
Third, the lawyer has squandered the opportunity to immunize the jury to the opponent’s argument. By this time in the trial, you know what the other side will argue. You know their theory and how they view the facts. By taking the opportunity to argue first you can not only show the jury how the facts and the law favor your client and why you should win, but you can also throw rocks at the argument the defendant is going to make. Instead of permitting the opponent to offer the first vision and to disparage your argument before you give it, take advantage of the opportunity for the first word and disparage his! If you waive the opportunity to speak first, your opponent can immunize the jury to your argument. You now have to deliver the antidote to the defense counsel’s attack as well as marshal the facts to meet your burden of proof. Don’t make it any harder than it is! If you go first, you can cast doubt on the credibility of the opponent’s argument before it is even made. It’s like giving a smallpox vaccine to build up immunities to the actual smallpox virus. Vaccinate the jury so they build up immunity to the defense argument before they even hear it. Then, it is your opponent that has to deflect and rebut the attacks before he can even begin trying to get the jury to see the story from his perspective.
Over the years I’ve asked District Attorneys and plaintiff’s lawyers why they waive the opportunity to argue first and last. The answers fall into three categories: (1) That’s the way we do it this district; (2) The judge expects us to; (3) If I argue first and last the defense counsel will play the “unfair” card and tell the jury that he only has one chance to speak to them but I’ll get another chance.
The first reason is really not a reason, it’s a practice that has become a habit and no one has taken the time to ask, “Why do we do it this way in this district?”
The second reason is really an excuse for not departing from the first reason. Maybe some judges do expect the State and plaintiff’s counsel to waive opening argument and let the defense go first. They probably did the same thing when they were trying cases; probably because they applied reason number one. That doesn’t mean they will demand that you waive opening. While the trial judge does have some discretion to impose reasonable limits on the scope and duration of closings, North Carolina practice envisions three phases of closing: (1)“opening” argument; (2) defense argument; and (3) final or “rebuttal” argument. I doubt seriously whether a North Carolina trial judge would punish a District Attorney or Plaintiff’s counsel merely because they elected to claim their right to go first and last, even if it departed from the judge’s usual practice or expectations.
While the first two reasons for waiving the right to open the closing argument have no sound justification, at least the third reason attempts to calculate how a jury might view the opportunity for the State or Plaintiff to get two bites at the apple. Sure, the defense may well tell the jury that she’ll have only one opportunity to speak, but counsel for the State [or Plaintiff] will get to speak again. The implication is that there’s something unfair about giving the State [or Plaintiff] two opportunities to address the jury. Should defense counsel make that argument, simply ignoring it would be a reasonable response. The jury is sophisticated enough to understand that if a party gets to make two arguments it is because the system permits it, not because one side is getting an unfair advantage. After all, they’ve seen direct examinations, cross-examinations, and re-direct examinations all throughout the trial. Closing argument is structured similarly. Should you feel compelled to address the defense argument, a simple response during rebuttal might be:
Members of the jury, Ms. Jones told you, correctly I might add, that I would get another opportunity to speak with you. But she didn’t tell you why I get to speak first and last in closing argument. It’s not because our system is unfair. It’s not because the odds are stacked against the defendant. In fact, it is just the opposite. You see, the defendant is cloaked with a presumption of innocence and we, the State, have the burden to prove his guilt beyond a reasonable doubt. The reason I get to speak twice is because the law imposes upon me the burden of proof in this trial. A burden we gladly bear.
In the typical trial the prosecutor or plaintiff’s counsel gets to directly address the jury four times: during jury selection, during opening statement, during opening of closing argument, and during final or rebuttal argument. It makes no sense to give away one of those opportunities.
What you include in the opening argument and what you include in the final or rebuttal argument is a subject for another day. But for now, this is the last word.
