One of the greatest mistakes a lawyer can make is to save his best argument for the closing argument. It is too late then because the jurors have almost always already made up their minds. Remember, at least 80 percent of jurors come to a decision “during or immediately after the opening statements.”
Yet it is understandable why so many attorneys do wait until closings to make their best arguments.
First, opening statements are harder to deliver because it takes a certain amount of courage to predict what the evidence will show; a closing simply has to summarize what has already taken place. Second, some lawyers feel that if they put their best argument in their openings, jurors will lose interest in the trial. These lawyers often like to save some surprise facts for the trial and then use them in their closing. Unfortunately for these lawyers, jurors will go ahead and reach conclusions about who should win after opening statements without the benefit of those facts.
Third, some lawyers feel that if they put their best arguments in their openings, it will tip off the other side to their strategy, and thus they will lose the element of surprise at trial. The problem with this thinking is that the trial begins with the opening statement, not with the first witness. Given that jurors are quickly making up their minds during opening statements, this is not the time to be holding back your strong arguments. Certainly, your opening statement need not give away every surprise you might have at trial. Nonetheless, it should contain your best pieces of evidence and your best arguments.
Even though the importance of closings is overrated, it is paramount that you make your closing as good as it can possibly be. Even if the jurors have already made up their minds, you don’t want to give them a reason to change their minds with a subpar performance. Instead, provide jurors with the evidence and arguments to make their deliberations easy. Finally, the importance of opening statements notwithstanding, closings become very important in a close trial. It is then that a trial can be won or lost with closing arguments.
To see examples of such powerful openings and closings, check out my latest book, Turning Points at Trial: Great Lawyers Share Secrets, Strategies and Skills.