type of person who fixates on what I don’t know for fear of encountering the situation of being completely stymied and failing to rise to the occasion. Every day and every year I become a little bit more comfortable with this goal, but still find myself drifting, especially during trial prep, toward shoring up relatively unnecessary information to bolster my legal confidence. In this case (as in prior cases), I remember bouncing manically between printing random statutes, ORCPs, and UTCRs for my trial notebook, fretting endlessly about scientific imprimatur, going down a rabbit hole on wages v. benefits v. pensions distinctions because defense counsel indicated he didn’t like amendments to our wage loss claim where I had added the word “benefits.” I was prepared to meet any matter of nonsense defense counsel might bring up on any number of subjects, when the reality is most of these legal arguments happen in passing almost, are ruled on instinctively and there isn’t the need or even the opportunity for learned regurgitation of case law. Point being, this time would have been better spent honing the pith of our case rather than dallying about the perimeter. Plan your closing first. I’ve heard countless times you should begin your trial preparation by writing (or outlining — however you like to approach this) your closing argument first. In similar fashion, I’ve also heard you should start with your jury instructions, which seems like a sensible precursor to the former endeavor. In this trial, I made the mistake of not taking this good advice. I did start with jury instructions, in effort to internalize the legal framework for our inevitable case arguments, but endlessly deferred the actual work of writing a closing argument until the night before, when time was scarce and fatigue was high. Why did I put it off? I don’t know. On the one hand, I felt like I knew the case backward and forward but needed to observe and appreciate the unfolding of the facts in front of the jury to most effectively argue the case (which is always a little different than you imagined it might be) to them on the back end. This was a kind of procrastination, born of fear of doing the hardest work first; it’s easy to pick off discrete projects, less easy to make the definitive calls on the final package when the fuzzy parameters of that package keep you awake at night. In order to craft the most powerful closing, you do need to hear how the evidence unfolds and, ideally, weave the golden bits of trial that must have resonated with some jurors right back before them to fuel their own argumentative fire. The best parts of the closing I couldn’t have planned because they came fortuitously from the trial process itself. But I could and should have drafted the skeleton structure that doesn’t change with winds of trial. Regardless of the trial philosophy or systems you ascribe to, it seems to me that closing argument (and trial really) is about storytelling, and stories consist of discrete and interchangeable parts. Formerly a graduate student studying comparative literature, my favorite professor and mentor (who taught countless courses on Old Russian Literature and folklore) had a thing for Vladimir Propp. Propp was a Soviet folklorist scholar who, as I recall, created a model reducing fairy tale plots into a discrete group of simple and irreducible narrative elements/functions and character types. While the point of that type of formal textual analysis is way more complicated than I can pretend to understand several decades removed from the serious study of literary theory, my thought today is that a closing argument is really just an unfurling of a collection of discrete plot parts with which you are already intimately familiar. My approach in the future may just be to use those building blocks to sequence a simple story for which additional detail will be used to elevate, or color up, the narrative once the evidence closes. In this trial, feeling under-prepared for closing was made more excruciating when the judge pulled us into chambers just after 3:00 p.m. on day three of trial to ask if we wanted to go home or go ahead and close (after defendant put on a less lengthy case they intimated they might — shocking, I know). Trial moved faster than anticipated, in no small part due to the pace luminary Judge John A. Wittmayer encouraged. Before trial, he memorably looked at our witness list in chambers, held it up in See Stories That Linger p. 46 45 Trial Lawyer | Fall 2024
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