Lamson, Dugan and Murray, LLP, Attorneys at Law

Using Documentary Evidence In Closing Argument

Posted in Closing Argument, Trial

As I have posted earlier, I have taught trial practice to a team of four third year Creighton University law students which culminates in a trial competition. This year we went to The National Trial Advocacy Competition hosted by the Michigan State University College of Law in East Lansing Michigan. Veronica Valentine McNally and the NTAC staff at MSU do a great job and it is always fun to visit its beautiful Big 10 campus.

Every year the question comes up: what documentary evidence needs to be used and why? The students almost always identify what needs to be (and what permissibly can be) offered. They then construct their direct and cross examinations. When applicable they often spend time on direct and cross examination, among other things, explaining why their “client’s” version of what happened was consistent with the documentary evidence and why the opposing side’s version was inconsistent.

When it comes time to draft their closing argument they typically come with a great first draft. They deftly pointed out that (often) the case was about whom to believe and argue that their witnesses were telling the truth. In their initial attempts, however, they almost always fail to arm the jury with the tools to conclude that it should believe their clients without having to tell them to believe them. How? Often there are documents created contemporaneously with the events in question. When testimony that is given months, or years, later conforms to those documents you should point that out. When the documents match the testimony show the documents to the jury.

During closing argument (and within reason) you should try to show the jury the exhibits you thought were important enough to put into evidence. If you are not going to use a document in closing consider whether you even need to put it in evidence at all. You cannot assume the jury will sift through and find the documents you want them to find. Even if they do find the right document they may not find the right meaning in that document!

You need to remember to not only lead the horse to water but offer it a drink. Simply offering an exhibit is like bringing the horse to water. Showing the jury the exhibit in closing and reminding jurors of its significance offers them the drink.

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