The conventional wisdom is that closing argument, at least in family law bench trials, is purely for your client’s benefit. The court usually isn’t listening, the case may have already been decided, and the facts are what the facts are. I’m not going to argue with that viewpoint, as I think there’s a fair amount of truth to it.
Once you accept that the closing argument is all about the client, you can shift a bit in your thinking about how to do the argument. This is your chance to become passionate. This is your chance—your last chance—to help the client understand how strongly you feel about the client’s case and how much you believe that a decision in his or her favor is the right thing for the advancement of truth, justice, and the American way. Do I sound cynical? Well—guilty—I’m cynical.
My cynicism is about to get worse. Here’s my ninja move.
During closing argument, stand behind your client and, at least for a short while, put both hands on your client’s shoulders. Think “back rub” without the rubbing. Stand there and continue with your argument. Hold your pose for 30+ seconds. Why?
Give me a minute, and I’ll get to why.
I learned the move from a continuing education program on trial advocacy. The instructor, an experienced trial lawyer, argued that touching your client sends a message to the jury that you like your client, that you believe in your client’s position, and that, even if there are some distasteful facts, you find the client likable. The instructor went on to say that if the jury likes you and they see you touching your client, some of that fondness for you rubs off on the client.
I haven’t done many jury trials (just two, in fact), and I decided to try the ninja move in a bench trial. I figured it couldn’t hurt to let the judge know that I liked my client. So one day, right in the middle of closing, I settled both of my hands on both of his shoulders.
The judge listened to the argument, listened attentively to my well-reasoned position, and promptly ruled against us. The judge didn’t bother taking the case under advisement and pretending to consider the issues. He just—boom!—ruled from the bench. Swift, freaking justice. Oh well, so much for my ninja move.
However, back at the office a few hours later, the client and I spent time digesting the outcome and figuring out what might come next.
The client expressed satisfaction with my work. I’m always especially pleased when a client is happy, even though we’ve been trounced.
What blew me away was that the client specifically mentioned the hands on the shoulders. The client was moved by that act. The client felt cared for and sincerely appreciated my commitment to the argument. The hands didn’t work on the judge, but they had a powerful impact on my client.
Since that day, I’ve tried the ninja move on quite a few occasions. It nearly always generates goodwill with the client. I’m not convinced that it has affected the outcome of a case, but it can’t hurt. I’ve kept the move in my arsenal of tools, and I encourage you to give it a try as well.
Hopefully, getting your hands involved in your closing argument will make a difference for your case. At a minimum, it will make a difference for your client.
