U.S. Capitol building

Leaving the Drama — and Surprises — for Closing Argument

Jamison KoehlerTrial Advocacy

Your client is cranky with you for the lousy job he thinks you are doing on cross-examination. There are no dramatic “gotcha” moments like you see on T.V. Instead, every time you elicit what appears to be an inconsistency in the witness’ testimony, you pull back, moving onto a new line of questioning. It is almost as if you didn’t even notice the inconsistency. Where is the fun in that?

At one point, you catch your client scowling at his friends and family in the gallery. No further questions? The witness is lying! Go for the jugular! What the hell is my lawyer doing?

But you take heart: Whatever the client thinks of you during trial, he will love you by the time you finish your closing argument. By that time it will be too late for government witnesses to correct or explain a problem with their testimony. It will be too late for the prosecutor to try to fix the government’s case.

Closing argument is the fun part. It is only here that everything finally begins to make sense. You take all the pieces of evidence that came out during the trial — through the government’s witnesses and your own – and you weave them together into a logical and persuasive story. When you are doing what you should be doing, client expectations notwithstanding, it is a version of events that can only be accepted as true.