If necessary (and it almost always will be in a jury trial) a reference to relevant legal principle, including the onus of proof.

Transcription

1 Closing Addresses There are very great differences in style and content between a jury closing address and a closing address to a Judge sitting alone. Nonetheless, the function of such addresses is the same, as is the structure. There should be: A brief and catchy introduction. If necessary (and it almost always will be in a jury trial) a reference to relevant legal principle, including the onus of proof. Presentation of arguments on liability for your side, usually weakest first, strongest last, and including confronting of any serious weakness in your case. Refuting of the other side's arguments on liability either by reference to them or in anticipation (my learned friend may argue). Address on damages by reference to the standard headings and a schedule if possible. Offer to give a figure for general damages. If the Judge wants it give a figure at the higher end of the range (but within it) if you are for the plaintiff, and at the low end (but within it) if you are for the defendant. An address must be courteous to the Judge, to your opponent and as far as possible, to your opponent's client and witnesses although of course at times robust criticism of bias and interest will be necessary and especially where clear untruths are uncovered. Remember Sir Owen Dixon's maxim "Advocacy is Tact in Action". Sometimes your opponent will fudge or even cheat - you should point this out but with courteous restraint and more sadly than angrily. An address must be accurate - it must not misquote the evidence or a document. An address is more effective if chronology is preserved. You should have handed a detailed chronology to the Judge as part of your opening. The law must not be mis-stated and statutes and cases which are against you must be drawn to the Judge's attention and distinguished if possible. Argument which is merely naked assertion is always feeble. Sincerity is a better persuader than high flown oratory. Justice Frank E. Johnson speaking of a closing address in a jury trial said: Page 1 of 5

2 "A summation should be a list of the trial points you made and a recital of the failures of the other side. If you are alone in the trial, you can, while waiting to be reached, outline what you hope to be able to point to, after the trial, as your achievements. If, during the trial, something good happens - some 'break' in your favour - give it a prominent place, but don't forget the main outline of your proof and the strength of your case and your witnesses. Talk about your own witnesses; remind the jury of the strong parts of their testimony, and give them the best translation you can of whatever your witnesses said that is harmful or not helpful. Face the defects of your case, if you speak first, since your silence will contrast badly with the concentration your opponent will put upon those sore spots. Keep yourself out of it. Your feelings and your opinions are not in the case, and no jury is much concerned about them, they remember you are being paid for your efforts. Don't abuse any witness. Let the force of your analysis be its own oratory, and your exposure of the falsity awaken the jury's indignation. A jury rarely gets indignant because counsel says he is, so it is better to thus produce indignation than to exhibit it. Point out if the other side has in opening promised proof that did not appear; point out how fully you have made good your opening promises. Do not flatter the jury; any praise of their intelligence, etc. is out of place, and is usually plainly insincere. Most jurymen resent being treated as children, and transparent flattery reacts. After you have tried a thousand cases, you can begin to practice subtle and indirect flattery - the only kind that may succeed. If your opponent is summing up, first note any incorrect statements of testimony, all half-statements thereof, and any weakness of his case which he is sliding over. If he is stressing a conflict in your own proof, note that and meet it frankly, and put the best face on it that it will fairly bear. In answering him take your weakest spot and face it at; once, and get that other with, so that you will finish on your strong points. If you postpone facing a difficulty, the jury's mind will be on that, and not on what you are offering them, so meet it and dispose of it promptly. If your time is limited, make a mental note of how much you will give to each department of the case so that you won't be hurried at the end or shut off before you make your best points (see 'Municipal Court Trials and Practice' by Frank E. Johnson)". Be yourself, as natural as you can be. Do not be afraid of emotion even before Judges without juries if you genuinely feel it appropriate. In Craft v Stocks & Holdings. I addressed the High Court for but five minutes on general damages, but I began the five minutes at before a Court that rises at with the words "Colin Craft is a courageous cripple your Honours but his courage ought not to reduce his damages". The Court rose at the end of my peroration. At 2.15, Alec Shand Q.C. began by saying "Mr. Coombs has addressed this Court as if it were a jury". "Not always a mistake, Mr. Shand" said the allegedly stony-hearted Garfield Barwick. Page 2 of 5

3 Do not be disturbed of the Judge interrupts. He or she is trying to give you a line on preliminary views so that you can direct argument to the most helpful areas. I prefer Judges who interact during address to those who sit silent, and I think you will too. It provides an opportunity to correct misunderstandings and misapprehensions and to direct persuasion. John Coombs QC 7 March 1994 Page 3 of 5

4 Closing Address Checklist 1. Know your case. 2. Know your purpose. 3. Present an argument. 4. Enumerate points. 5. Don't read. 6. Choose your words. 7. Be human. 8. Include Judge/Jury. 9. Light and shade and timing. 10. Posture, body language. 11. Use of notes. 12. Plain words. Page 4 of 5

5 Twelve Tips about Closing Addresses 1. Be ready 2. Evidence closed 3. Preparation 4. Organisation 5. Structure 6. Credibility 7 Onus 8. Questions and Problems 9. Pace 10. Independently strong points 11. Case theory 12. Conclusion Richard Cogswell S.C. 18 March 1998 Page 5 of 5