New York Personal Injury Trials,
Who's Up First?
Issues Related to Order of Summation
New York Law Journal, Tuesday, October 25, 2005
Ben B. Rubinowitz and Evan Torgan
The order of summation is a
continuous source of concern for trial lawyers. Although the
attorney who defends a case enjoys the luxury of not having to
meet the burden of proof in order to prevail, he is saddled with
a significant disadvantage with regard to the alignment of
opening and closing statements. The party with the burden of
proof generally opens first and closes last.
Whether in state or federal court, it is often thought that
he who has the last word in summation has an edge over his
adversary.
No Rebuttal Opportunity
It goes without question that in State Supreme Court in New
York there is no opportunity for rebuttal during summation. The
defense attorney is placed at a distinct disadvantage. Namely,
there is no opportunity to respond to the plaintiff's arguments
after he sums up. Defense counsel is faced with the problem of
trying to anticipate and neutralize his adversary's closing
before it takes place.
A clever argument often made by defense attorneys meets this
fear head on. This tactic seeks to have the jurors place
themselves in the position of defense counsel and answer the
questions and issues that will be raised in summation by the
plaintiff's lawyer.
The following illustrations suggest a few methods of dealing
with this concern:
Now ladies and gentlemen, I am about to sit down and when I
do Mr. (Plaintiff's Attorney) is going to stand up and he is
going to talk to you. He is a very good lawyer and he is going
to tell you a lot of things. And I don't get to talk next. I
don't get to respond. And I assure you I have an answer for
every one of the things that he is going to tell you that will
sound so compelling and so convincing.
Since I don't have a chance to stand
up next and answer his comments and arguments, what I ask you to
do as he talks to you is this: put yourself in my shoes and just
imagine what would I be saying to each of these comments and how
would I answer his arguments. And if you will do that, I am sure
we can reach a just verdict in this case. If you don't do that
however, justice cannot be done.
An abbreviated version of the same argument addresses the
point:
Now, this will be my first and last chance to talk to you.
Once I sit down, I'm through. I can't answer the plaintiff's
lawyer. No matter what he says about my client, the proof, or
even me, I can't answer. So I hope that if you feel it fair in
your mind, that you will answer it for me.
Some defense attorneys even try to subtly suggest that it is
unfair that they are forced to speak first during summation:
As you can see, I speak first during final argument. I assure
you it is not a matter of choice for I would rather have the
advantage of summing up last. I realize that my adversary may
raise some points that I do not raise and he may raise new
points that I am not permitted to answer. I am going to ask you
to be my lawyer when you go into the jury room to deliberate. I
am going to ask you to consider the issues carefully. And I am
going to ask you to answer my adversary for me when I can no
longer speak.
The 'Golden Rule'
These arguments by the defense attorneys are clever indeed.
They attempt to accomplish indirectly that which is clearly
prohibited directly by the so-called 'Golden Rule,' which
prohibits attorneys from asking jurors to place themselves in
the shoes of the parties. In this instance, of course, the
defense lawyer is beseeching the jury to assume the role of
advocate on behalf of his client. While some plaintiff's
attorneys might object to these arguments, which should be
sustained, a more successful approach to dealing with and
responding to this ploy is to explain and reveal this tactic for
what it really is during the plaintiff's summation.
What (Mr. Defense Attorney) asked you to do was very clever
on his part. It is very smart if you think about it. Instead of
having you remain unbiased and in your own shoes, viewing what
the attorneys say independently or impartially, he asks you to
sit there, not as though you were an independent juror, but as
though you were counsel for the defense listening to me. As
though you were my adversary. And he wants you to place yourself
in that position. I want to tell you right now, that's his
job--that's not your job. Your job is to listen to him neutrally
and to listen to me neutrally and to decide the facts fairly. No
matter what the defense attorney tries to tell you, the only way
justice can actually be accomplished is if you remain faithful
to your role.
Another tactic often employed by
defense attorneys who know that there is no opportunity for
rebuttal is to try to predict what the plaintiff's attorney
might say in his summation. The thought or hope is that by
bringing out the most damaging argument during the defense
summation it will somehow lessen its impact when made by the
plaintiff's lawyer.
Imagine, for example, the following scenario: A
medical
malpractice case has been brought in which the plaintiff
suffered severe bed sores resulting in the
destruction of bone
due to infection. Although the doctor's orders reflect that the
patient should have been turned and repositioned every two hours
(in keeping with the standard of care) the nurse's notes do not
reflect such turning and repositioning.
Anticipating a Summation
Here, the defense attorney's summation might try to
anticipate the plaintiff's summation:
Ladies and gentlemen, I fully anticipate that the plaintiff's
attorney will attempt to focus your attention on the nursing
notes. Clearly, the notes do not reflect the fact that the
patient was turned and repositioned every two hours. But the
nurses testified that the patient was turned and repositioned in
keeping with the doctor's orders. The mere fact that a notation
wasn't made is
insignificant. The note is not what's important, no matter what
the plaintiff's lawyer tells you. The care is what is important.
And the care that was given was in full compliance with the
doctor's orders.
Instead of jumping into an argument on this very point, the
plaintiff's attorney should take the opportunity to point out
what the defense attorney has done and then respond accordingly.
[FN1]
Ladies and gentlemen, the defense attorney has tried to
predict my arguments. I will tell you right now, he has
predicted them. But just because he has predicted them doesn't
detract from them. All this means is that (the defense attorney)
is a clever and astute lawyer who can predict a reasonable and
compelling argument when he hears one. Ask yourself this
question: If the patient was truly turned and repositioned every
two hours, why isn't there a nursing note to that effect?
Because it wasn't done. Why were the bedsores so severe? Because
the patient wasn't turned. Why are these types of notes kept in
the first place? To reflect the care that was given and to
reflect what truly happened to this patient.
While the attorney with the burden of proof enjoys the
advantage of summing up last, the savvy practitioner must give
consideration on how best to press that advantage. Specifically,
while getting the last word affords the attorney an opportunity
to respond to the arguments raised in an adversary's summation,
it is easy for a lawyer to get lost in answering his opponent's
arguments- and overlooking
his own. Particularly in cases, as frequently occurs, in which
the court imposes time limits on summation, it is increasingly
vital that the attorney summing up last remembers to present the
points he believes are most important to the jury.
The challenge for a plaintiff's attorney is well-illustrated
by the following example: Assume you represent a person injured
in a two-car collision. You believe your liability case is
strong, and that the plaintiff undeniably sustained serious
injuries, which debilitated him for a significant period of
time. Unfortunately, one problem exists: the defendants used a
surveillance video, which was shown to the jury, that
establishes your client was able do things which he claimed at
his deposition that he could not. To make matters worse, the
tape depicts him playing basketball, when he's testified at
deposition that his pain prevents him from performing even
simple everyday tasks.
Naturally, your adversary has made this tape the central
point of his summation. He has challenged you to explain why a
person who misrepresented his condition for the purpose of
tricking a jury into believing that he was injured worse than,
in reality, he was, should be believed about anything or receive
any compensation.
Issue Selection
Here, issue selection becomes
critical. While one might feel compelled to analyze the tape in
excruciating detail on the plaintiff's summation in order to
minimize the defendant's claims regarding its impact, the wiser
course is to focus on your strongest arguments, perhaps even
minimizing the significance of the tape in the process:
Two witnesses came in here and told you how the defendant
sped through a red light, never slowing down, never seeing what
was there to be seen, never taking any reasonable action to
avoid the accident. And what does his lawyer say about this? He
says, look at the videotape of my client. No answer at all.
You've seen the hospital records, and the
X-rays of my client's
broken bones, and heard doctors tell you about the impact these
injuries have had on (the plaintiff), and the toll they will
take on his body for the rest of his life.
What's his answer? One day, they caught him doing his best to
enjoy his life, and trying to play some basketball. Does that
make the documented pain and suffering my client sustained any
less real? Of course not.
Why did he spend 90 percent of his summation talking to you
about that tape? You all know why. Because he can't justify his
client's conduct, and he certainly can't dispute that my client
was severely injured, so he tries to divert your attention away
from all of the facts, all of the witnesses, all of medical
reports, all the days my client can never get back, and get you
to focus on one moment in
time, a window into that one day, when he was feeling a little
better, hoping you'll ignore those days of documented pain, of
pure suffering.
If you let him succeed in distracting you from the real
issues at hand, that's not justice.
Conclusion
Like most facets of trial work, the relative advantages or
disadvantages attendant to order of summation are what you make
of them. While defense counsel has the opportunity to mitigate
the problem of speaking first by asking the jury to 'fill in'
for him with its own rebuttal, plaintiff's counsel still must
make use of his advantage in speaking last by stressing his most
important winning arguments, which he hopes will carry the jury
through their deliberations.
FN1. Patrick L. McCloskey and Ronald L. Schoenberg, Criminal
Law Deskbook §19.04 (1984)
Ben B.
Rubinowitz, a partner at
Gair, Gair,
Conason, Steigman & Mackauf, is an adjunct professor at Hofstra
University School of Law and Benjamin N. Cardozo School of Law. Evan Torgan, a member of Torgan & Cooper, is an
adjunct professor at Cardozo School of Law.
