By Robin Frazer Clark
Robin Frazer Clark wishes to thank the following Georgia Trial Lawyers Association members for their mentoring and support:
Tommy Malone, from whom most of my closing arguments are stolen;
David Bell, who told me to be specific and unapologetic;
C. Lawrence Jewett, my partner, who I have never heard raise his voice; and
Bill Stone, whose unselfish words of encouragement made me believe I could be someone.
If you can keep your head when all about you
Are losing theirs and blaming it on you;
If you can trust yourself when all men doubt you,
But make allowance for their doubting too:
If you can wait and not be tired by waiting,
Or being lied about, don’t deal in lies,
Or being hated don’t give way to hating,
And yet don’t look too good, nor talk too wise;If you can dream–and not make dreams your master;
If you can think–and not make thoughts your aim,
If you can meet with Triumph and Disaster
And treat those two imposters just the same:
If you can bear to hear the truth you’ve spoken
Twisted by knaves to make a trap for fools,
Or watch the things you gave your life to, broken,
And stoop and build ’em up with worn-out tools;If you can make one heap of all your winnings
And risk it on one turn of pitch-and-toss,
And lose, and start again at your beginnings,
And never breathe a word about your loss:
If you can force your heart and nerve and sinew
To serve your turn long after they are gone,
And so hold on when there is nothing in you
Except the Will which says to them: “Hold on!”If you can talk with crowds and keep your virtue,
Or walk with Kings–nor lose the common touch,
If neither foes nor loving friends can hurt you,
If all men count with you, but none too much:
If you can fill the unforgiving minute
With sixty seconds’ worth of distance run,
Yours is the Earth and everything that’s in it,
And–which is more–you’ll be a Man, my son!– Rudyard Kipling
By Robin Frazer Clark
In November 2000 I tried the case of Donna Sanders v. Fowler’s, Inc. d/b/a J.D. Kinder’s Furniture Showroom, No. 1:98-CV-01728-ECS (N.D. Ga. November 17, 2000), a Title VII case involving allegations of sexual harassment against a family owned and operated furniture store. The jury returned a verdict in the amount of $1.65 million, for both Title VII sexual discrimination claims and Georgia State law claims for intentional infliction of emotional distress. This verdict was unique in that it was a significant amount awarded against a fairly small “Mom and Pop” store, the plaintiff had two felony convictions for shoplifting and probation violation that had to be overcome and the jury came from some predominantly conservative Metropolitan Atlanta counties. Also, this was my first Title VII trial. Although I have tried numerous personal injury cases and so was comfortable in the courtroom, it was my first Title VII trial and I was, in a word, scared.
I want to give you a short roadmap that, hopefully, you can use to create the same result for some of your cases you know you are going to try soon but are, perhaps, not overly enthusiastic about the prospect.
Most plaintiff’s trial lawyers will tell you that a case is lost or won at the time of case selection. This is particularly true with any employment discrimination case. You’re only as good as your client, no matter what the facts. Finding out during a trial that you could have done better with your case selection is not a good thing. That might fall under the category of “disaster” at trial. But you have to be prepared to meet with both disaster and triumph at trial, and never miss a beat. Of course, one can adjust rather easily to meeting with “triumph” at trial, no matter how short-lived. What do you do to ensure you meet more often with triumph than disaster at trial?
I can identify three main things that you need to have in your column to maximize your chances of recovery on behalf of your client at trial in an employment law case or any case:
Like everything else in life, we learn by trial and error. Let’s explore how we can get a check in our column in each of these three main areas.
Not important? Think again. Intangibles are all of those little factors that you really can’t put your finger on in a trial, things that are never in writing or in black or white or ruled upon or even made explicit to the jury. They are all the little things that, when added up, give you the nose in the race. They are not to be underestimated; that is why I put them first, even before preparation and organization. They are simply that important. They make the difference in a close race. They are invaluable.
First, you have to have the right frame of mind to win. You must be a possibility thinker. You must be able to envision your winning to win. The “Possibility Thinker’s Creed”, by Dr. Robert Schuller, is a gem to remember:
When faced with a mountain
I will not quit
I will keep on striving
Until I
climb over,
find a pass through,
tunnel underneath,
or simply stay and
turn the mountain
into a gold mine!
With God’s help– Rev. Robert Schuler
Remember also the truth that if you win every trial, you must not try a lot of cases. You are a TRIAL LAWYER, not a settlement lawyer. The possibility that you may lose is real. It helps to keep in mind the following nugget from the incomparable Number 23:
I’ve missed more than 9,000 shots in my career. I’ve lost almost 300 games. 26 times I’ve been trusted to take the game winning shot and missed.
I’ve failed over and over and over again in my life.
And that is why I succeed.– Michael Jordan
(Nike poster)
I assume there are probably plenty of you out there who have no problem with confidence and self-assuredness, the hallmark of Possibility Thinkers. But as a large trial approaches, I sometimes began to engage in self-doubt and second-guessing, which, to be perfectly honest, is a royal waste of time. If you find yourself falling into this trap, summon the Possibility Thinkers’ Creed. It will serve you well. I truly believe you must have the mindset of a Possiblity Thinker to triumph in virtually anything you do, not just trying a case. Prayer is a big part of positive thinking for me and I have no doubt it was at work for my client and me during the Sanders trial.
During a trial you need a mechanism in place that will refresh your motivation during times of disaster, something that you do not have to look up or research but something that can be recalled without effort. During the trial of Donna Lynne Sanders v. Fowler’s, Inc. d/b/a J.D. Kinders Furniture Showroom , No. 1:98-CV-01728-ECS (N.D.Ga. November 17, 2000) I relied on such mechanisms and they were lifesavers. I recommend having a theme or leit motif that you can repeat to yourself to start the good adrenaline you need to be on top of your game. “Carpe Diem” or “No Day But Today” (from the musical “Rent”) or “Strength and Honor” (from the movie “The Gladiator”) are some examples, although the last may be a bit over the top. I also promote listening to music, which plain and simply pumps you up. It sets the mood…one of energy, motivation, enthusiasm and positive vibrations (to borrow a line from Bob Marley). Try “Music” or “What It Feels Like for a Girl” from Madonna’s “Music” CD or “Ray of Light” by Madonna or “After the Rain” from Sting’s “Brand New Day” CD.
Another intangible I employed during the Sanders trial was smiling. Sounds simple, I know, but it is actually a difficult thing to remember to do constantly during a lengthy trial and during a time of pure stress. But I felt in this trial and particularly in a sexual harassment trial, the one who smiled more would be the one the jury liked more (and the one the jury liked more would be the one who won). So, I instructed my client numerous times during trial preparation and each day of trial (and each break) to smile. She did the same for me. No matter what befell us during the trial (and we had plenty), we were determined we would be smiling when it hit us. I believe smiling is as important as what you and your client wear to trial for presenting a likeable picture to the jury. Remember, the jury has to like you to want to help. Time after time we have learned from jury focus groups that the lawyer the jury likes the most usually wins.
Interestingly, on the morning of closing arguments, I was drinking a cup of coffee in the Federal courthouse cafeteria and was studying my notes intensely. I was also nervous and it must have shown. A man sitting at the table next to me said “Good Morning” and then said “You know, you shouldn’t look so worried. Just smile.” I believe that encounter with this unknown individual happened for a reason. I immediately got the worried look off of my face and replaced it with a smile. I made sure that smile didn’t fade until after the jury was in the jury room deliberating. I smiled throughout the entire charge, not only because I thought it would help our case, but also because I was sincerely elated the trial was finished.
Politeness is an intangible that is priceless. There is no telling how many brownie points you rack up with the jury just for sheer politeness, having nothing to do with the merits of your case. Make a purpose of letting the jury see you talk politely and pleasantly with the court reporter, the judge’s clerk and the bailiff. I try to borrow something from the clerk or the court reporter in front of the jury, e.g., a tissue or a marker, just to let the jury hear me say “Thank you very much” and to let the jury see a nice, pleasant exchange with the judge’s staff. I make a point of introducing myself to the bailiff and try to shake his hand in front of the jury. Be excruciatingly polite to opposing counsel and exploit any rudeness, however slight, that defense counsel exhibits. Trust me; the stark contrast in your polite behavior and any rudeness by defense counsel will be glaring to the jury. The jury, in my opinion, considers this disrespectful of them and the court. They will not forget it in the deliberation room.
Self-evident? It probably should be, but it isn’t always. I needed this truth hammered into me to accept it. Don Keenan once said at a Georgia Trial Lawyer Association seminar that the secret to success in medical malpractice lawsuits is not to allow the defendant to out-prepare you or out-expert you; that there was absolutely no excuse for a plaintiff’s lawyer to be out-prepared at trial. He was right. In the Sanders case I vowed I would not be out-prepared, and I wasn’t. Remember motivational quotations? One to keep in mind is what Sean Connery said to Kevin Costner in “The Untouchables” after Connery’s body had been riddled by dozens of bullets and he was moments from death: “What are you prepared to do?” Ask that of yourself: What are you prepared to do to win?
First, assume your case will go to trial from the first day you start working on it. Develop a case theme, one you can see yourself repeating numerous times at trial. The theme I identified for the Sanders case was “Hold them accountable.” This came from a defense document that was a store manager’s memornadum to all management personnel. It really meant hold the sales associates for their sales numbers if they were low, but all the document said was “Hold them accountable.” I used it to motivate the jury, to hold the defendant accountable for violating Ms. Sanders’ federally protected rights. I must have said the phrase “Hold them accountable” 100 times during the trial; every chance I got, in opening, on cross-examination and obviously, in closing argument. These were my final words to the jury, an urging to them that if they didn’t hold them accountable, the defendant would be laughing at them when they left the courtroom. I told the jury to make sure that didn’t happen.
The focus should always be on the defendant’s conduct. Opening statement should be about what conduct of the defendant has brought us here. The defendant’s conduct made us come to this Honorable courthouse. I often repeated “They did that to her.” Everything you do in the case should be geared toward the defendant’s conduct. Read every document thinking, “how can I use this to show defendant’s conduct was egregious or reckless?”
I have tried only one case without a trial notebook, and after that trial I vowed never to do that again, no matter how small the trial. Your trial notebook is crucial. Essentially everything you will need to try the case should be paired down to fit in your trial notebook. My trial notebook is split by major divisions of the trial, e.g., Pretrial matters, Voir Dire, Opening, Plaintiff’s Evidence, Directed Verdict, Defendant’s evidence, Closing, etc. I keep all documents with the examination of the particular witness through whose testimony I intend to admit that document into evidence. I rarely, if ever, have to look to the entire case file once trial has begun.
Once I have narrowed the documents in the case to the ones I know I will use at trial, I have the ones that I believe are key blown up fairly large so that every juror can read along as I examine a witness. As I read from a document at trial I use a pointer and point to every word as I say it, much like a kindergarten teacher may do for her class. I do not rush as I read it. I read rather slowly, emphasizing key words. I do not want any importance of any word or phrase to escape the jury. The defendant’s sexual harassment policy (assuming it had one) should be enlarged and read in its entirety to the jury. Any internal documentation of complaints lodged by plaintiff should be enlarged and read, word for word, to the jury. Pointing to each word as you read almost forces the jurors to read along with you. It would take more effort for the jury to look away from the exhibit than to follow along with you as you point to each word. Taking such time with an exhibit sends the message to the jury that you think this document is very important and you don’t want them to miss that message.
When I was working up the Sanders case, I also thought about Don Keenan’s words of wisdom not to let them out-expert you. I thought that if this worked for him in a medical malpractice case, perhaps it could work in a sexual harassment case, as well. So I became determined not to be out-experted. I knew I may lose the trial but it wouldn’t be because I didn’t have the best or the most expert witnesses; thus the golden decision to retain Michele Paludi, Ph.D. as my expert witness. Before I searched for one, I didn’t know such a thing as an expert in sexual harassment existed. I have come to believe her testimony was invaluable. If your employment discrimination case is one in which you want to show the defendant’s sexual harassment policy statement is inadequate or ineffective, then I think you should hire an expert witness. Although we put up evidence that Defendant never had a sexual harassment policy when Ms. Sanders worked there, we had to plan for the possibility that the jury would believe the Defendant did, in fact, have in place a sexual harassment policy. We had to put up evidence in the alternative. Dr. Paludi dissected the defendant’s sexual harassment policy and gave very reasonable explanations for why it was inadequate and why it was ineffective, to the point that it might as well have not existed. The language used in a policy statement, the procedures spelled out in it, its placement on the job site, and where it is maintained are all key issues on which an expert can add valuable insight. Dr. Paludi was also able to explain some of Ms. Sanders’ own conduct from a psychological standpoint, which I believe, at a minimum, neutralized any questionable conduct to the point where the jury clearly did not hold it against her. For example, Ms. Sanders had 2 prior felony shoplifting charges and a probation violation charge to which she pled guilty and for which she served time in prison. I was honest with the jury out of the gate, asking them in voir dire whether knowing this would cause them to hold it against Ms. Sanders. Dr. Pauldi then provided plausible explanations for why Ms. Sanders didn’t quit sooner given Defendant’s egregious conduct and why Ms. Sanders might have even participated in some of the lewd jokes on the job, given her background of two prior convictions. Dr. Paludi helped explain away much of the unfavorable evidence against us. Interestingly, Defendant did not retain an expert witness. Perhaps one reason was because probably no one in the United States could match Dr. Paludi’s qualifications nor rebut her opinions. She was untouchable. The failure of Defendant to have an expert witness for it at trial was glaring, kind of like there was a 400 pound elephant sitting the courtroom and, in my opinion, a major blunder by the defense. It allowed me to argue to the jury that defendant was unable to locate any expert in the industry who could swear under oath that Defendant’s sexual harassment policy statement was adequate or effective or that Plaintiff failed to take advantage of any corrective measures offered to her (because none were). I had out-prepared and out-experted the defense. It was essential to a victory.
Of course, you will have to be prepared to meet Daubert objections if you retain an expert witness to testify. This is particularly true in a sexual harassment case because the defense will attack expert testimony on the basis that it is not scientifically based. I assumed that defense counsel would at some point make a Daubert challenge, which they did at the eleventh hour, on two separate occasions. I covered the Daubert test in my direct examination of Dr. Paludi in her evidentiary deposition. This saved her testimony: without it I most likely wouldn’t have been able to admit her testimony.
There are many resources you should take advantage of for trial preparation. Attend as many CLE classes as you can. They will pay off. Join your state’s chapter of the National Employment Lawyers Association, even if you only have one employment law case. The rewards are enormous. You will be able to tap into a wealth of information and experience from other trial lawyers. You can learn by their mistakes and by their triumphs. Use the Internet. It is the single, most effective tool you have to level the playing field. Some cites that I use in employment cases are:
Because the internet is so accessible to the public now, you can make a good argument that Defendant has no excuse for not having an adequate, effective sexual harassment policy statement because an employer can simply obtain the necessary information from the Equal Employment Opportunity Commission website, listed above. All EEOC guidelines are available on line as well as example sexual harassment policy statements that have been proven adequate and effective. Also, a simple telephone call to the EEOC can help an employer avoid any complaints. This is a good argument in response to a defense argument that small employers can’t afford to hire outside human resource consultants to help institute a sexual harassment policy. This was actually one of the defenses in the Sanders trial and the Defendant was successful in getting a jury charge that essentially suggested that the EEOC rules were more lax for employers with small workforces. The Defendant in Sanders averaged between 50 and 60 employees at any given time. But I showed the jury that having a small workforce was simply no excuse; they could have just called the EEOC or could have checked the Internet.
In the Sanders case I could not physically and financially depose every potential witness. There were simply too many witnesses to spend the money for a deposition of every single potential witness. I had approximately 50 witnesses listed on my witness list and so did Defendant. I knew I would have to wing many cross-examinations of adverse, extremely hostile witnesses, especially the accused harassers, without really knowing what might come out of their mouths. I assumed they would deny the conduct we had accused them of, but that was about all I knew. I prepared copious notes on each possible witness who we could even imagine. This was done by sitting with my client for hours on end in front of the computer while I asked her questions and she told me everything she could remember about a particular person. This particular defendant had a revolving door for employees and, therefore, there were easily 50 or more former employees we legitimately thought could testify.
At trial, when an individual whom I had not deposed testified, I took my typed notes on the witness with me to the lectern and used them extensively. I read statements the individual allegedly made, simply based upon the recollection of my client, as if impeaching with a deposition. An example of these typewritten notes about each potential witness is attached to give you an idea of what they looked like. By this time in the trial several witnesses had been impeached with their depositions so the jury was well versed in what a deposition was and what it meant when the attorney got to read a question from the deposition to the witness. They thought that meant they were lying. When asked, for example, an alleged harasser about a specific incident that occurred, rather than asking the question in a conversational tone of voice, I actually read directly from my typewritten notes, as if I were reading from a deposition. This involved a lot of bluffing, but it worked. I think the jury believed that the witness on the stand must have said that earlier in a deposition because I was reading it from some paper that looked like a deposition. That’s what I mean by saying look more prepared than you really are. There were several witnesses who I didn’t know what they might say on the stand until they were walking into the courtroom. That is a scary feeling, but you must not let the jury know you are scared. If you do, the game is up. Just wing it, project confidence, smile and you’ll score some points.
The Rule of Holes states that once you dig yourself into a hole, quit digging. Follow this rule. The defendant didn’t in the Sanders case. Early in the litigation the defendant obtained the affidavit of a former employee of Defendant who we initially thought would substantiate many of our allegations against Defendant. We soon found out that the Defendant had gotten to her first. The defense apparently wanted to use this former employee’s affidavit to prove Ms. Sanders engaged in the sexually vulgar and explicit conduct at work herself, rather than walking away from it when it occurred, as this former employee stated she had done when it often had occurred around her on the job. Thus, the affidavit was an admission that the alleged conduct had actually occurred. Defendant was already in the hole by having the EEOC charge made against it and this lawsuit having been brought against it for sexual harassment, but continued digging by presenting sworn testimony that the conduct we alleged, did, in fact, occur. Although the defense called this particular former employee in its case-in-chief, she actually became our witness.
You must seize all opportunities to exploit any miscue by the defense. Most likely, they will be rare. Don’t let them slip by. A former employee named John Doe(1) had been Ms. Sanders’ direct supervisor. We alleged he pursued Ms. Sanders romantically on the job, despite her protests. I did not call John Doe as a witness in my case-in-chief because I assumed he would only deny all our allegations. I assumed defense counsel would call him in their case. They did not. In my opinion, this was a major, irreparable mistake by the defense. I spent a good five minutes in closing argument asking, “Where was John Doe?” and argued that the jury could rest assured that if John Doe would have had even one favorable thing to say for the Defendant, including denying any of the allegations we had made, Mr. Doe would have been their star witness. Sarcasm was called for here, one of the rare times in this kind of case. The absence of John Doe probably sealed the Defendant’s fate. But you must be ready to capitalize on the smallest of mistakes by the defense. They don’t make many.
Be prepared for any witness to lie on the stand, including your own client. You must have the presence of mind to adapt quickly to what evidence comes from the stand, in whatever form. Roll with the punches. There will be many. “Never breathe a word of your losses”, i.e., never let the jury know you felt like you just got your stomach kicked in.
Whatever warts you have in your case, own up to them right out of the gate. They need to come out of your mouth first, not defense counsel’s. This is the only way to minimize them, if that is possible. My client had two felony convictions we had to deal with, and we did from the outset in voir dire. I believe if you do not mention them first in voir dire, your very first time to talk to the jury, it will be too late to do so in opening statement. Be scrupulously honest. Have your client confess on the stand to them. Apologize for them. Do not defend them. They are indefensible. Have you client testify point blank “I am not proud of some of the things I have done in my life”. (By the way, who isn’t?). But then after being totally honest about them, you can ask the jury “Does a woman who has been in prison have any less federally protected right to be free of sexual harassment in her job?” “Do you lose your federally guaranteed rights because you make one (or two) mistake in your life?” If you have divulged up front to the jury all the baggage your client brought with her, fully and completely, then when defense counsel begins harping on those things your client has done of which she is not proud, it almost makes him look like the bad guy for rubbing Plaintiff’s nose in it, kind of like a bad sport. You have gained esteem in the jury’s eye for honesty and forthrightness and defense counsel looks like a sore winner.
Another example of showing your warts first is to give the jury ample warning that they are about to hear some extremely offensive language from both your client’s mouth and your own and apologize about this the first chance you get in voir dire. The language this particular sexual harassment case required me to repeat was the epitomy of vulgarity and my concern was that because my client was going to have to repeat what she heard at work, the jury might accidentally fall into the trap of thinking she talked that way normally, and that if she talked that way normally, she probably wasn’t sexually harassed. I was also concerned that because I was going to have to repeat much of this offensive language on cross-examination of the harassers, the jury might hold it against me and my client.
I told the jury in voir dire they were going to have to hear rather lewd, sexually explicit language throughout the trial and that Ms. Sanders and I sincerely hated having to say those words, but that we had the burden of proof and to meet that burden would require us to place into evidence the exact language and conduct to which Ms. Sanders was subjected to on a daily basis. So, although I phrased the apology in the most self-serving way I could, I made it as sincere as I possibly could to convey our discomfort with having to say those words. I believe this helped our appearance with the jury and it gave the jurors a chance to speak out if they thought they could not handle the language. It really was some of the most offensive language I have ever heard.
Number 1 most important rule to keep in mind for closing argument in Federal Court: Your closing remarks of closing argument may not exceed the scope of your opening remarks of closing argument. Likewise, if you waive opening remarks, then your closing remarks are limited to those matters argued by the opposing party in that party’s closing argument. Local Rule of the Northern District of Georgia 39.3 B. (2). Moral of the story: Never waive opening in your closing argument. (Remember this rule on all of your direct examinations as well. The courts are sticklers about this). Number 2 most important rule: Don’t run out of time! Federal court judges keep a stopwatch on you in your closing argument. You are only entitled to 30 minutes under the Local Rules for the Northern District of Georgia (this rule may vary from jurisdiction to jurisdiction) unless you ask for more in your Pretrial Order. Ask for more–you’ll need it. Keep your eye on the clock. If the court reporter has to change paper during your closing, respectfully ask the judge to stop the clock; that shouldn’t count against your time. Try to use some self-deprecating humor when you do so. Jurors love self-deprecating humor. Leave yourself at least 10 minutes’ rebuttal. Be ready to dump argument on the fly.
Get pumped up! This is your moment! And remind yourself; it is your client’s only day in court. NO DAY BUT TODAY!! Repeat your mantra, listen to your motivational music, say a prayer, rub Buddha’s belly: This is it. All things are possible because you are extremely organized and prepared. These moments don’t come often. Seize the day.
I have a pretty standard outline I use in almost every closing argument, regardless of the type of case. I start with that outline and amend it to fit the particular facts of the case. I have developed my outline largely based upon what I have learned from other Georgia Trial Lawyers Association members at Georgia Trial Lawyers Association seminars. Much of what I have developed is based on watching other plaintiffs’ attorneys give their closing arguments, during which I have unashamedly taken written notes and have dutifully kept in my “Closing Argument” file.
Remember to start with the focus immediately on the conduct of the Defendant. Set up the defense attorney with several pointed rhetorical questions that he will either have to spend time answering during his closing argument (thus getting him off track of what he intended to say) or will have to ignore, making the jury wonder “Why didn’t he answer that?” Either way it’s good for you.
Capitalize on even the smallest of errors or omissions by defense counsel. Make even an honest mistake seem intentional. If there was a witness they should have called but didn’t, point it out. In Sanders defense counsel failed to call John Doe, Plaintiff’s supervisor and someone I thought would be key in their defense. I asked the jury “Where was John Doe?” Trust me; they were wondering where he was, too.
Repeat your major theme of your case at least three times in closing. If it is compelling enough (“Hold them accountable”) make it your final words. Thump the Bible, if you feel like it would be well received by your jury. Your questions in voir dire may have helped you know whether you can get away with this. If not the Bible, how about a hymn that might be familiar to the jury? In Sanders I pulled phrases from “Amazing Grace” that I felt they would all recognize. I told them that “I have brought this case here thus far and you will lead it home.”(Compare the actual lyric of “Grace has brought me safe thus far and Grace will lead me home.”) If you don’t feel comfortable quoting the Bible, you can quote it but say you are quoting Shakespeare. For that matter, consider using poetry. Poetry is, by its very nature, compelling language; you will sound compelling using it.
You must empower the jury in closing. When they leave the courtroom for that last time, they have to be motivated by you or all is lost. You have to convince them that only they have the power to right a wrong, to administer justice. Much of your closing must be done from memory, especially when you are empowering them. Empowerment loses a lot of its “uuuummmphh” if you’re looking down reading it from notes rather than, apparently, speaking contemporaneously. So, in my opinion, there are some main themes and arguments you simply must commit to memory and be comfortable talking about with merely a two or three word cue. I look each juror in the eye and hold his or her gaze for at least 30 seconds. 30 seconds is actually a long time to look directly into someone’s eyes. Your sincerity about your cause will be revealed in that gaze. If you are a phony, it will show. If you are the real thing, they will know.
The first page of my closing argument might look like this (but handwritten):
Just a few words will cue me to talk several minutes on each heading. Each one of the headings above has behind it an argument I have committed to memory and which I can make simply by reading the heading.
You must overemphasize burdens of proof, both yours and Defendant’s. “Preponderance of the evidence” must be drilled into them with everyday analogies like the ones listed above. Do not repeat testimony. The jurors don’t need or want to hear it again. They are ready for the case. Use your time more wisely for empowerment and motivation.
I believe in any case, but particularly in a Title VII case, you must point blank tell the jurors which witnesses flat out lied on the stand. Call that a witness “a liar” in open court. You must go for broke here. Call a spade a spade. Tell the jury which witnesses simply are not worthy of belief. Hopefully, you’ll just be confirming what they were already thinking. But you cannot afford to mince words. Don’t allow the jurors to become lost on subtleties. Don’t be afraid to show righteous indignation when the Defendant’s conduct calls for it. Be outraged; you’re entitled. Only if you show outrage or righteous indignation can you expect to evoke that same emotion from the jury.
In the Sanders case there was an entire issue involving the fact that the Defendant, in admittedly trying to dig up as much dirt on Ms. Sanders as possible, obtained the birth certificate of her 6 year old son who was born out of wedlock, apparently to attempt to prove the child’s father was not who Ms. Sanders had said he was. What did this have to do with whether Ms. Sanders was subjected to lewd, vulgar, sexually graphic conduct and language at her workplace? Absolutely nothing. I showed righteous indignation about this conduct by the Defendant and felt I was well within my bounds to do so.
Be compassionate. Fight for your client. The jury will appreciate this. I actually had one juror in the Sanders trial tell me that if the verdict seemed a little high it might have been because they felt I did such a good job fighting for my client. Tell the jury that they are the conscience of the community and that with their verdict they will say how their community feels about a woman’s Federally protected rights being totally disregarded. When I say this I mention the towns or areas of Atlanta that each juror is from, so they know I am not speaking in the hypothetical about some place they will never visit or see; I am talking about Mableton, Roswell, Conyers, Covington and Cabbagetown. There was a juror from each of these areas on the Sanders jury.
How do you ask for money? That’s why we’re here, right? Be unapologetic about this. In voir dire no one disputed any United States citizen’s right to ask for money damages when their Federal rights have been violated. Remind the jury of that. “There is no magic so we ask for money.” Be specific. Ask for specific dollar amounts. Do not round off or up. Err on the side of conservatism. I think you need to use a per diem argument if possible, or at least relate the amount you ask for to some dollar figure already in the case. The amount you ask for must have some rational relationship to what the jurors have already heard in the case.
You might use the job in the classified ads analogy, or use Plaintiff’s salary now or when she worked for Defendant as a gauge for what would be a reasonable compensatory award. I use newspaper articles about the value of something in society, e.g., the price of a Superbowl advertisement ($2 million for 30 seconds), the fact that Mark McGuire’s record breaking baseball sold for $3.05 million at auction, the price of a work of art, e.g., Cezanne’s “Still Life With Curtain, Pitcher and Bowl of Fruit” sold for $60.5 million at Sotheby’s or the highest price ever paid for a work of art, $82.5 million for Van Gogh’s “Portrait of Dr. Gachet.” etc., to show the jury how we as a society value something. It also desensitizes them to large dollar figures.
I believe it is essential to show the jury the verdict form. Go over it with them, page-by-page, word by word, and actually tell them how they should fill it out. Tell them what dollar figures to insert in each blank. Do this with absolute confidence so that when they are in the jury room deliberating they will pull out the verdict form and say, “Well, Ms. Clark said to put in $100,000.00 here.” The verdict form should not be foreign to them by the time they start deliberations.
The Holy Grail really is when punitives go to the jury. You can get away with so much more in closing argument when you’re discussing punitive damages than when you are talking about anything else. Take advantage of this. Exploit it. These times do not come around often. Be ready when they do. Empower the jury. Work them into a frenzy. Be evangelical here. By the time you sit down for good the jury should want to get in that jury room as fast as possible because you have convinced them that nothing less than the precarious balance of justice hangs upon them.
Of course, you should refer freely to the Defendant’s corporate financial statement showing the total net worth or total assets of the corporation, which you admitted into evidence in your case-in-chief. Ask the jury “How much money will get the Defendant’s attention?” “How much money will it take to ensure they correct the situation and never allow it to happen again?” Ask for a reasonable percentage of the Defendant’s net worth in punitives. This is rational. The Defendant is Sanders had total assets of $9,124,614.02, based upon its corporate financial statement, produced for the first time on the third day of trial. In my closing argument on the issue of punitive damages, I asked for 10% of its total assets, or $912,461.40 in punitive damages on the Federal claim, and I asked for 5 % of its total assets, or $456,230.70 in punitive damages on the Georgia State law claim. The jury actually rounded these figures up, and awarded $1 million in punitives on the Federal claim and awarded $500,000.00 in punitives on the Georgia State law claim. I told the Sanders jury to make sure it was a big enough dollar figure that the President of the company wouldn’t be laughing at the jury when he walked out of the courtroom. I think this helped put a little muscle into the jury’s award.
I believe you must be very specific with the dollar numbers you ask for, rather than being vague and general. I am convinced that the first number the jury mentions in the jury room in deliberations is the number plaintiff’s counsel suggests. In my opinion, it is a fatal error for plaintiff’s counsel not to make a very specific suggestion of what the jury’s award should be. I also fill in the blanks on the verdict form with my specific suggestions of dollar amounts. I believe if the jury has seen that dollar figure on the jury verdict form before they are actually standing over it with pen in hand, they will be more comfortable with putting that figure on their verdict form in deliberations.
Keep in mind that puntives are not only to punish and deter your particular defendant, but also to deter any other potential defendant out there who might even dare think of violating a woman’s Federal rights. This gives you enormous latitude in what you can say. Use the words “Send them a message” more than once. In my closing argument in Sanders I had used an analogy about a citizen’s Federal rights to be free from racial discrimination as being protected by the same law, The Civil Rights Act of 1964, which protects a citizen’s Federal rights to be free from sexual discrimination. Then when I told the jury to send the Defendant and all employers in America a message, I mirrored Dr. Martin Luther King’s “I Have a Dream” speech and told the jury to make sure the Defendant and all companies in America heard their verdict loud and clear and to “let it ring from the Richard B. Russell building to Stone Mountain.” I don’t think they missed the point.
“Point the Finger and End with a Zinger.” This is borrowed from Johnny Cochran. It is a valid point. I ended my closing argument by pointing to the president of the Defendant, who was sitting at defense counsel’s table, and with a voice full of emotion, told the jury in a rather hushed tone “Hold Them Accountable.” They did.
Good luck with your own trial strategies. I hope my ideas may help you obtain justice for your clients. Keep the Faith. No Day But Today.
– Robin Frazer Clark
1. Although the identities of these individuals are now of public record and may be found in the Court’s file in this case, the author still wishes to limit disclosure of their names.