Brain Injury Lawyer - The Trial

FINAL ARGUMENT

Since the Plaintiff has the burden of proof, he presents his argument to the jury first. Then the Defendant presents his argument. Finally, the Plaintiff has an opportunity to stand before the jury once more to present his case.

Frequently closing argument is the climactic event in the trial. Sometimes it is the end to a perfectly presented case; all evidence "fell in to line" exactly as the attorney said it would in his opening statement. Further the Plaintiff's may have destroyed all defense witnesses on cross examination.

Sometimes closing argument affords the attorney the opportunity to try to recover from a case that has gone terribly wrong.

Most arguments fall somewhere in the middle.

The case is submitted to the jury after closing arguments. In a twelve-person jury, at least nine of the twelve must agree on a verdict. If such agreement occurs, judgment is entered for the winning party, either the Plaintiff or Defendant. However, if less than nine jurors are in agreement, a mistrial occurs and the case must thereafter be settled or re-tried.

ONE FINAL NOTE
We have all heard the term "practicing law." This is a correct term. Law covers the vast panorama of human experience. It covers everything we know about the arts and sciences. Law touches on every aspect of human existence.

No team has ever played a perfect baseball game. No team ever will. No attorney has ever handled a case perfectly. No attorney ever will. To mix metaphors, a good attorney must not only know how to knock his opponent to the floor but he must know how to get up off the floor.

Great athletes and great attorneys have at least one thing in common. They never give up, no matter how hopeless the situation.

When I was a new attorney I defended a young lady (called Ms. Jones; not her true name) in a drunk driving case. Her recollection of events of the day, including the subsequent stop by the police and performance of all field sobriety tests, was excellent. We had a good defense, but it would turn on her description of events immediately after she was stopped by the police. She was the last witness I called. I began examining her about the events of the day. Her recall was perfect. Everything went fine until we got to the point where the police stopped her. The examination by me continued like this:

Mr. Cunningham: And then, Ms. Jones, do you remember seeing the police car as you turned the corner?

Ms. Jones: Yes.

Mr. Cunningham: Now, then, Ms. Jones, what happened next?

Ms. Jones: (After very long pause) I don't remember.

Mr. Cunningham: Let me rephrase the question. Now, where was the police vehicle when you first saw it. (I am starting to feel the nails go in the coffin).

Ms. Jones: I don't remember seeing a police car. (Another nail in the coffin).

Mr. Cunningham: O.K. Perhaps you didn't understand. Now, you were arrested by the police that night; right?

Ms. Jones: I don't remember (final nail in coffin)

The foreman of the jury later said to me, "You should have seen yourself when your client had the lapse of memory; you went absolutely white!"

It is times like this that attorneys wonder why they didn't choose to teach at some law school.

I knew at that point that each successive question by me would be one more nail in the coffin. I was able to ask a few more inane questions and return, barely unassisted, to my seat. At the conclusion of the case, the judge asked both attorneys to approach the bench. The judge whispered to both of us (out of hearing of the jury) "Tomorrow we will have closing arguments, if you think it will do you any good, Mr. Cunningham!

I did not sleep that night. I couldn't think of any believable argument I could make to the jury. I cobbled together the best argument I could. Remembering my law school evidence professor always saying "Never give up, the unexpected frequently happens!"

I knew the case was lost at this point and nothing I could say would convince the jury otherwise. It was apparent that the case was not mine to win but the prosecutor's to loose. He must do something in his final argument to give the case away.

I then played a real long shot. My entire argument centered on my client's testimony that she had only two drinks before being arrested. According to the expert called by the prosecutor, my client could not have been under the influence if she had only two drinks.

The prosecutor took the bait. He began by saying. Ms. Jones testified she had only two drinks. Well maybe. He meant to be sarcastic. But the intonation he put on the word "maybe" did not sound sarcastic. The standard of proof he had to maintain was beyond a reasonable doubt. The prosecutor conceded reasonable doubt at the beginning of his opening statement.

Needles to say, my client was not convicted of drunk driving.

A good attorney, like a good athlete, never gives up!