How Many Closings Can You Give?
As we’ve written before, we’re big fans of closing argument. The evidence suggests that closing arguments are not where trials are won and lost and that’s probably right. But they are about as much fun as you’re permitted to have as a lawyer. And civil trials often involve many claims, many theories of damages, and as a consequence many “verdict dials” that a jury can twist in a favorable or unfavorable direction. So even if you aren’t going to flip a juror from “no” to “yes,” a good closing still might give you a shot at pushing a “soft yes” to a “how much can we award this guy?” And that’s worth spending the time and energy to deliver a fantastic closing.
But what’s better than one closing argument? Many closing arguments! You might think that you only have one opportunity to close per trial, and most of the time that’s true. But there are cases and courts where you may have the opportunity to address the jury and argue the evidence on several occasions.
The idea of a “mid trial closing” or “evidence summary” delivered by lawyers for each side has been frequently proposed as a way of assisting juror comprehension for long and complex trials. For example, The American Bar Association’s Principles for Juries and Jury Trials suggests “mini- or interim openings and closings” as a “trial technique[] to enhance juror comprehension of the issues.” [1] The Manual for Complex Litigation also endorses interim statements, writing:
In a lengthy trial, it can be helpful if counsel can intermittently summarize the evidence that has been presented or can outline forthcoming evidence. Such statements may be scheduled periodically (for example, at the start of each trial week) or as the judge and counsel think appropriate, with each side allotted a fixed amount of time. [2]
In 2005 and 2006, the Seventh Circuit American Jury Project tested mid-trial summaries in 17 civil trials, along with some other proposed reforms. Mid-trial summaries were highly rated by both the participating judges and counsel. [3] Indeed, 85% of the judges surveyed indicated that they intended to permit interim summaries in cases they tried in the future. [4] Based on the success of the experiment, the Commission ultimately recommended interim summaries for any civil trial lasting longer than a week. [5]
The specific procedures employed by the American Jury Project in testing interim-closings are actually quite interesting:
Attorneys should be allowed to use Interim Statements before or after a witness’s testimony, on both direct and cross-examination, as previews (if before) or summations (if after). Granting attorneys discretion as to when and how to use their Interim Statements maximizes the benefits and advantages thereof.
Interim Statements should be given outside the presence of witnesses except for those witnesses not subject to the witness exclusionary rule found in Federal Rule of Evidence 615.
Although attorneys should be allowed to make those objections that are permissible during traditional opening statements and closing arguments, they should not be allowed to respond to Interim Statements. This will prevent the trial from becoming excessively contentious and will prevent an attorney from interjecting argument during the other attorneys’ presentation of evidence.
Attorneys should not be required to give advance notice of their Interim Statements. This recognizes that Interim Statements will often be the product of counsel’s last-minute, spontaneous decisions and strategy and of the unexpected turns that trials often take.
An overall time limit for Interim Statements by each side should be set by the Court in advance of trial. In setting limits, the Court should consider the anticipated length of the trial, the complexity of the case and the nature of the evidence to be submitted.
At the end of the last day of trial each week or the beginning of the first day of trial each week, each side should also be given ten minutes to summarize the evidence that was introduced during the previous week and/or previews the evidence anticipated for the coming week. This will allow[] the attorneys to: (a) put into context the evidence the jury heard all week; (b) emphasize the key points they want the jury to remember; and (c) let the jury know what they can expect to [be] hearing in the coming week. [6]
In essence, the counsel were given a “bank” of minutes to use for interim statements and told that they could allocate them as they saw fit during the trial, essentially any time a witness was not on the stand. Counsel could preview evidence, summarize evidence, essentially do as they liked so long as they didn’t argue with each other. In addition, counsel received ten free minutes at either the beginning or end of each week to either summarize the week’s proceedings or preview the next week.
There are huge benefits to this approach. As we’ve discussed before, courtrooms often break with best pedagogical practices by failing to structure, summarize, and repeat information that juries are asked to absorb. Given counsel even a few minutes per week to orient the jury and call attention to the key facts and issues that they are being asked to decide could make it much easier for them to understand the case and how the evidence fits into it.
In the civil context, there are numerous decisions endorsing interim statements as a mechanism for improving jury comprehension in complex trials. For example, the Second Circuit approved the use of “interim summations and charges” in complex consolidated asbestos trials handled before Judge Weinstein. [7] Interim statements were also upheld by the Maryland Supreme Court in connection with consolidated asbestos trials. [8] The procedure there also involved a discretionary time bank to be allocated by counsel:
In the subject consolidation, the basic trial schedule called for presenting evidence during a “trial week” of Monday through Thursday. During each trial week the plaintiffs' and defendants' sides were respectively permitted thirty minutes of interim argument, and the two cross-claim defendants, whose liability-common issues were also determined in Abate I, were allowed, but did not necessarily use, a total of ten minutes of interim argument per trial week. [9]
Interim statements were also used in the infamous Westmoreland v. CBS libel trial held in the Southern District of New York. There, attorneys were each given two hours for interim statements with complete discretion on how to use their time – they ended up making 40 separate interim statements over the course of 62 trial days, ranging between one and ten minutes each. [10] And the Court of Appeals for the Eleventh Circuit considers the practice acceptable enough to have written model civil jury instructions on the issue. [11]
What about criminal cases? There the courts are more divided. In United States v. Yakobowicz, [12] the Court of Appeals for the Second Circuit reviewed a criminal conviction for tax fraud. There the trial court had made the unusual decision to allow for interim summaries after every witness. The court did this even though the presentation of evidence took only four days. Since this case was not terribly complex, the Court of Appeals reasoned that, in its words, “[i]f we allow use of the procedure here, therefore, we will have to allow it in virtually all criminal cases.” [13]
That prospect troubled the Court, who feared that doing so would lead to a huge prosecution advantage, given the way that criminal trials are structured:
[T]he interim summation procedure will, in the great bulk of criminal cases, systematically strengthen the prosecution's case. This is obvious even at the most superficial level. In criminal cases, the prosecution almost always calls more witnesses than the defense, which not uncommonly calls none. Interim summations after each witness enable the prosecution to argue repeatedly the merits of its theory of the case. Because a party's witness generally gives testimony favoring that party, the proponent of a witness has more to work with in its interim summation than does the adversary. The effect of interim summations in most criminal cases is, therefore, to strengthen the government's theory cumulatively as well as repetitively.
At a somewhat deeper level, the advantage grows. There is limited discovery by defendants in criminal cases, whereas the prosecution has grand jury subpoenas at its disposal. The government generally has, therefore, a clearer vision of the entire case than does the defense and can unveil its evidence with interim summations in mind. Given this informational disadvantage, the defense may find it very risky to respond to particular interim summations by emphasizing evidentiary gaps that may be filled immediately thereafter or by promising or implying a defense that is ultimately not presented. A failure to respond to the government's interim summation, on the other hand, leaves the government with a growing advantage. [14]
As a consequence, the Court of Appeals, while acknowledging the utility of interim summations in civil cases, found that their use in the criminal context “violated appellant's constitutional right to a fair trial.” [15]
The Court of Appeals for the Seventh Circuit reached a somewhat different conclusion in United States v. McGee. [16] That was also a relatively short trial (it concluded in under two weeks). Rather than offering interim summations after each witness, the trial court permitted a single interim statement per side at the beginning of the second week, as an opportunity to “help jurors regain their focus after the break.” [17]
While acknowledging the contrary holding in Yakobowicz, the McGee court expressed skepticism about its reasoning:
[W]e think that Yakobowicz overstated the risks and understated the potential benefits. The majority in that decision seems to have been unaware that the use of mid-trial summaries has been studied in criminal as well as civil trials, and that the opinion's fears have not come to pass. The report of the Seventh Circuit American Jury Project had not been released when Yakobowicz was issued, but other reports predated that decision. For example, a pilot program in Tennessee used mid-trial summaries in both criminal and civil cases, and the participants found that the summaries helped jurors. Two psychologists concluded that mid-trial summaries should reduce the prosecutor's advantage in a criminal trial by allowing the defense to undermine the prosecution's case from the outset by narratives and not just cross-examination. They observed that the prosecutor benefits from the primacy effect—that people give extra weight to the first information they learn about a subject. Summaries during trial may help jurors understand that the first information is not necessarily the best, and if so the summaries will improve the accuracy of verdicts. [18]
As a result, the court upheld the verdict.
So where does that leave the civil trial lawyer? Clearly there is good authority for interim closing statements in exceedingly long or complex civil trials. But between the Seventh Circuit American Jury Project’s endorsement of the practice in any trial longer than a week and the McGee decision upholding interim statements in trial that lasted barely two weeks, the practice would appear to be theoretically available even outside of the months’ long consolidated mass tort actions where it originated.
As such, if you have a trial lasting longer than a week or two, particularly one involving several days off, you should at least consider asking for interim closing statements. While it’s not a routine practice, it’s certainly one that can help you to better prepare the jury for the task ahead of them.
[1] The American Bar Association, Principles for Juries and Jury Trials, §13G (2005), available at: https://www.uscourts.gov/sites/default/files/aba_principles_for_juries_and_jury_trials_2005.pdf
[2] Federal Judicial Center, Manual for Complex Litigation § 12.34 (4th ed. 2004).
[3] Seventh Circuit American Jury Project Final Report, pp. 34-35 (2008), available at: https://www.uscourts.gov/sites/default/files/seventh_circuit_american_jury_project_final_report.pdf
[4] Id.
[5] Id.
[6] Id. at 33-34.
[7] In re Brooklyn Navy Yard Asbestos Litig., 971 F.2d 831, 836 (2d Cir. 1992)
[8] ACandS, Inc. v. Godwin, 340 Md. 334 (Dec. 1, 1995)
[9] Id. at 408
[10] Seventh Circuit American Jury Project Final Report, pp. 32 (2008), available at: https://www.uscourts.gov/sites/default/files/seventh_circuit_american_jury_project_final_report.pdf
[11] Court of Appeals for the Eleventh Circuit Pattern Civil Jury Instructions §§ 1.5, 2.4 (2024).
[12] 427 F.3d 144 (2d Cir. 2005).
[13] Id. at 151.
[14] Id. at 152.
[15] Id. at 153.
[16] 612 F.3d 627 (7th Cir. 2010).
[17] Id. at 633.
[18] Id.
