How Long is a Closing?
We’ve written before about the few constraints on closing argument. Sure, there are seven things that you can’t say, and a few more that perhaps you can, but that you should be careful about. But within those restrictions, you have enormous freedom to structure your speech in any way that you wish and do your best to persuade the jury of your position.
But in truth there is one constraint that applies to just about every closing. Time. How long are you allowed to speak? And can you get a new trial if the court does not give you enough time for closing argument?
The “average” closing statement in America is between twenty and forty minutes long. [1] But as we’ve written about before, the “average” trial in America is either a relatively simple criminal case or a tort action involving a car crash. If you’re a white-collar defense lawyer, a class action lawyer, or even a “normal” commercial litigator, your trials are not “average” and the length of time that you receive is going to vary substantially from court to court. The length of closing statements – like the length of trial itself – is largely at the discretion of the trial judge. And while not totally unfettered, it is a very broad grant of discretion indeed.
How unfettered? There are some limits. The trial judge cannot prohibit closings entirely. In Herring v. New York, [2] the United States Supreme Court held that a New York statute rendering closing statements optional was unconstitutional. But nevertheless, so long as the closing statement time limit is not literally zero, it is a rare case where a time limit is so short as to require reversal on appeal.
This is particularly true in Federal Courts, which have repeatedly upheld shockingly short time limits for closing argument. For example, in United States v. Sotelo, [3] a court imposed a ten-minute time limit on closing arguments for each defendant in a narcotics conspiracy trial. The case was extremely complex and “involved 40 witnesses and 133 exhibits, a twelve-count indictment, and a 22–page jury charge.” [4] On review, the Court of Appeals for the Fifth Circuit gave the issue the back of its hand, holding that “the appellants' closing arguments adequately summarized the evidence and arguments and nothing in the record indicates what additional items would have been covered during closing had the trial allowed additional time.” [5] Similarly, in United States v. Bednar, [6] the Court of Appeals for the Eighth Circuit upheld a 20-minute time limit for closing arguments in a securities fraud case that lasted over six days.
A federal appellate court did find error in time limitations imposed by a trial court in Sims v. ANR Freight Sys., Inc. [7] But the facts of that case highlight just how extreme a process needs to be to offend the sensibilities of a Court of Appeals. In Sims, a judge presiding over an employment discrimination case asked the parties how much time they needed for trial and was told 5-7 days. He ordered that the trial take place in a single day and imposed the following time limits: “5 minutes each for opening statements, 2 hours for Plaintiff's case in chief, 2.5 hours for Defendant's case, and .5 hour for Plaintiff's rebuttal (5 hours of testimony for each case).” [8] The trial judge then required the parties to submit detailed statements of uncontested facts and then refused to permit any of those facts to be read to the jury.
On review, the Court of Appeals for the Fifth Circuit held that “we are persuaded that the methodology imposed on this trial by the court and the restrictions that were placed on the lawyers regarding the manner of the presentation of evidence adversely impacted on the comprehensibility of the evidence to the point that Sims was denied a trial.” [9] But so as not to give an employment discrimination plaintiff too much justice, the appellate court held that the case was frivolous and that the plaintiff didn’t deserve one anyway. [10]
But while reversals based on time limits are rare, rare does not mean never. In particular, certain state supreme courts have reversed criminal convictions where a trial judge unreasonably limited closing argument.
For example, in Stockton v. Florida, [11] the Florida Supreme Court reviewed a second-degree murder conviction. The underlying trial had lasted two days and involved fifteen witnesses, including two from the defense. There were several eyewitnesses to the murder and many were confronted with conflicting deposition testimony concerning who had started the altercation and whether the defendant had fired the fatal shot.
The trial judge, aiming to ensure that the case could be wrapped up before the weekend, limited the parties to thirty minutes of closing argument. On review, the Florida Supreme Court reversed, taking great exception to the prospect that weekend plans should constrain the defense of a person facing a life sentence:
[I]t appears that the thirty-minute time limit here was set primarily for the convenience of the jury, enabling them to finish with the case before the weekend. This time limitation demeaned the dignity of the proceedings, detracted from the seriousness of the charge being tried, and offended petitioner's right to a full, fair, and impartial trial. We remind our colleagues at the trial and appellate levels that, in a criminal case, considerable leeway must be given to defense counsel when arguing his or her case to the jury. A court should not unduly restrict defense counsel's argument even when the state's case is strong and the court believes the defense has very little to argue. Defense counsel, although not entitled to filibuster, must be given sufficient time to fully and completely present his or her argument to the jury. [12]
A similar result was reached by the Louisiana Supreme Court in Louisiana v. Washington. [13] There a defendant was sentenced to twenty years at hard labor for distribution of cocaine. At trial, which also lasted two days, the judge imposed a fifteen-minute time limit on closing arguments. In the words of the Louisiana Supreme Court, this was done “not to ease any burden already imposed on the jurors but out of fear that ‘any time longer than 15 minutes would have allowed nothing but repetition, waste of this jury and this court's time, and would have resulted in an appeal to passion, prejudice and sympathy....’”
On review, the Louisiana Supreme Court reversed the conviction, writing:
[C]ounsel had the right to explain why he structured his direct and cross examination of the witnesses in a particular way and what he thought that the evidence did or did not prove. Counsel had to overcome eyewitness police identification testimony and he faced that task not by appealing to the sympathies and prejudices of the jury but by presenting a logical and largely non-repetitious exploration of why the evidence at trial made the credibility of that testimony less than the state supposed. Under these circumstances, the trial court's adherence to the 15 minute limit, which overshadowed and dominated the arguments of both state and the defense without any apparent necessity in the record, represented an abuse of the court's discretion. Defense counsel have no right to filibuster but they “must be given sufficient time to fully and completely present his or her argument to the jury.” [14]
What about civil cases? Reversal based on time limits is exceedingly rare, but it does exist. Consider Woodham v. Roy [15]. There, a Florida Court of Appeal reviewed a two-day civil trial alleging negligence by an insurance broker. But as the appellate court tells it, the trial judge had other things to do:
At the conclusion of the first day of trial, the court informed counsel that it had to leave early the next afternoon and stated, “I assume by then you will finish the case.” Then, referring to closing argument, the court stated, “I wouldn't think you would need more than 20 or 30 minutes for argument.” Defendant/appellee's counsel responded, “I would say 30 minutes would be sufficient.” Plaintiff/appellant's counsel stated, “It will take about a half an hour, 45 minutes.” Nothing more was said on this issue. [16]
The following day, the judge informed counsel that closings would be limited to twelve minutes. There were objections by both sides, which were overruled. On appeal, the appellate court reversed and ordered a new trial, writing that “[t]he fact that this is a civil proceeding does not mean that justice can be administered arbitrarily with a stopwatch.” [17]
So, what can you do if a court imposes an unreasonably short time limit on closing? While your chances of a reversal on appeal are never great, you can maximize your chances in a few ways.
First, ensure that you make a record of what arguments and analysis you were unable to present because of the time limit. Appellate Courts often highlight a failure to do so as an easy basis to deny an appeal.
Second, if the court is shortening arguments because of the judge’s own schedule, ensure that that fact makes its way to the record. More than one appellate court has taken umbrage at trial judges shortcutting cases to “finish before the weekend” or “leave early.”
Third, do your best to get opposing counsel to join in any objection to the shortened schedule or at least articulate that they also agree that more time is necessary. This strengthens your argument on appeal and makes it harder to for them to subsequently argue that the limitations were reasonable should they prevail.
[1] Craig Lee Montz, Why Lawyers Continue to Cross the Line in Closing Argument: An Examination of Federal and State Cases, 28 Ohio N.U. L. Rev. 67, 75 (2001)
[2] 422 U.S. 853 (1975).
[3] 97 F.3d 782 (5th Cir. 1996).
[4] Id. at 794.
[5] Id.
[6] 728 F.2d 1043 (8th Cir. 1984).
[7] 77 F.3d 846. (5th Cir. 1996).
[8] Id. at 848.
[9] Id. at 849.
[10] Id. (“The evidence is so overwhelming against Sims that there is no reasonable possibility that the outcome would be different if the case were re-tried, even if Sims were allowed to present fully all her evidence in a comprehensible manner.”).
[11] 544 So.2d 1006 (Fla. 1989).
[12] 544 So. 2d 1006, 1009 (Fla. 1989) (internal cite omitted).
[13] 614 So. 2d 711 (La. 1993).
[14] Id. at 713-714 (internal cites omitted)
[15] 471 So.2d 132 (Fla. 1985).
[16] Id. at 133.
[17] Id. at 135.
