Brief 27: Make knock out speeches

(upbeat music) Welcome to the Advocacy Podcast, journeys to excellence. We speak with Queen's Council, Trial Lawyers and Judges from around the world about how they excel in the courtroom. Please subscribe on your favourite podcast platform and visit us for additional resources at theadvocacypodcast.com. - I'm your host, BB Bidejo. And I'm back with another of the brief episodes where we distill essential insights from past conversations. Today, we're focusing on the art of the closing speech or the closing argument. Join us as Alison Summers' KC in Carl Heaton's KC, share their thoughts on this pivotal moment in legal proceedings, offering wisdom that can shape the final impressions in a courtroom. (upbeat music) So turning now to closings and I haven't expanded on closings because a number of our guests have referred to them in different ways. I've said closing speeches. I've also heard closing arguments and then also closing submissions. What do you call them? - I call them my closing speeches. They are, in my view, a speech. And it is my speech and not my client's speech. This is me as the advocate addressing the jury. And I think the nature of the interaction, it is very much a speech rather than submissions or closing arguments. I think it's a speech. - And do you think that you can turn a case around based on your closing speech? - I think you have to believe that you can. Otherwise, what you say can lack authenticity and credibility and I think that is very, very damaging. If you stand up and you start with a sigh and well, I'm just going through the mill as it were of making a few points, I think jury spot that. So I think you have to believe that you can make a difference. And of course, when you are unanimously acquitted, there is no doubt that you did make a difference. When, of course, you're convicted, well, you did your best and there was very little anyone could do. So I think the important thing is to believe that at that point, you still can make a difference. I certainly encourage people to think that at that moment, you stand up. There may be some things that you can say, which will make a jury look at something in a slightly different light. - And what do you think makes a good closing? - I think when you're closing a case and you're prosecuting, I often think a lighter touch rather than a heavier touch. I don't think it should be a repetition of the opening when you're prosecuting what you want to do is to draw a few of the key pieces of evidence together. And I think you have to say something a little different than what you said in your opening. When you're defending, I tend to think that a shorter speech rather than a longer speech is more effective. You have to be credible. You know, I say you have to be credible. The advocate has to be credible because your client may not be credible. Parts of their case may not be credible. And so it's important that even if the jury think that your client or parts of their case is lacking credibility, that you establish credibility with them. And so if your client has told, you know, lie after lie about a whole raft of different things, don't be afraid to call him a liar. If that is the reality of the evidence, don't be afraid to call him a liar because that's almost inevitably what the jury will be thinking. If during a trial for, you know, a violent offense, it's emerged that your client is a drug dealer. Don't be afraid to call him a drug dealer because I think if you do that, you're effectively saying to the jury, look, it's okay if you think he's a liar or he's a drug dealer. It's okay if you don't like him. If you think he's a pretty unattractive individual, it's okay, but actually what you have to be sure about are these two or three things. And so I think credibility is very important. And it's not about selling your client short, quite the opposite, but it's about being frank with the jury and to give them permission not to like your client or not to be concerned that they think he's told lots of lies or he's a drug dealer. I think that's quite important. And I think the other thing in a closing speech is, I don't think you should be apologetic. Don't apologize for taking up the jury's time or for making criticism of a witness or the police. You know, if your judgment is that the criticism is properly placed, don't shy away from it. And so I think that get up, be bold. And don't, you know, preface everything you say with, you know, I'm sorry members of the jury, but I am going to take up a little bit of your time. Why are you apologising? This is what you are required to do. And I think if you're bold and with the jury, you will get that respect back from them. So your closing speech is you have to be credible when you're addressing the jury. During the course of this podcast series, we've heard how important it is to prepare your closing speech first before you even start going into the preparation of your cross examination and so on. Is that what you do as well? I certainly prepare the case with a view to where I want to be when I come to make my closing speech. And this goes back to what I said about thinking about the issues as early as that first hearing in the crown court. Because the minute that I get a case, and I know it's going off for trial, I want to be starting to think in my head, what am I going to say to that jury when I stand up to do my closing speech? And you can't just think about that two nights before you start drafting what you're going to actually say. You want to be thinking about what am I going to need to do with this witness to be able to say this? What am I going to have to get by way of an admission so that I can make this point? Whilst I wouldn't be sitting down to be drafting my closing speech right at the very beginning, I would certainly be preparing the big points of my closing speech so that I knew what it was that I had to achieve in the course of the trial. So I think that that is a very good tip to think about what you want to say to the jury. In those 25, 45 minutes, you're stood up in front of them because that should give you some framework for how you're going to prepare the trial in the run-up to the trial and then during the trial itself. Do you have a consistent structure for your closings or are they more fluid as the, depending on the sort of case that you have? I don't have a consistent structure at all. I think flexibility is really important as an advocate and a structure that may work well in one type of case may not be as effective in another type of case. So I had a case maybe a year ago where I had three really strong points for my case. And they seemed to me to be the sorts of points that the jury were just not going to be able to reconcile with the finding of guilt. My structure in that sort of case was, members of the jury, there are three points. I'm going to address you one. Point one, point two, point three. And I didn't really say anything more. I didn't dress it up in any other way. So a very short 35-minute speech. Very succinct on those points. In another type of case where, for example, your client may have pleaded guilty to a lesser offence, so he's charged with an offence of wounding with intent, but he's pleaded guilty to the simple wounding offence without the intent. You might want to, within the course of your speech, put things like lies into that context. Well, of course he's lied because he knew he was guilty. He was guilty of stabbing this man. But how do those lies really assist you on determining whether it the type he intended to cause that man serious harm? Again, very much depending on the issues, I think would determine the structure. I think you always know if you're spending a long time on the burden and standard of proof, you probably haven't got very many points. You don't want to bog the jury down with stuff that they're going to be told by the judge. They've been told by the prosecutor. So think about what would it is you want this jury to really remember? And when you look at some of the research done on attention spans, it's really quite concerning. And I don't know why we're not a little bit more sort of aware of this, but the idea that a jury will sit through for a two hour speech. I think they will remember something like four minutes of what was said. I always think, well, of course I'm going to have to make a number of points. But when the jury are in that retirement room and they're trying to remember things about what was said or whatever, is there something that I can give them that will cause them to say, but isn't that what Miss Summer said that it doesn't necessarily prove this? So that's what you want to be thinking about. And I think the other thing you need to think about is your tone and your pitch, because it won't necessarily always be the same. If you're dealing with a case where there is a lot of sadness, a case where there is inevitably going to be a sense of this is just awful. What's happened to you? A typical case, a death by dangerous driving or a death by careless driving, where sometimes the culpability is quite low, but you've got this dramatic effect. That's going to be quite different to a case in which you're alleging that police officers have fabricated evidence or have interfered with evidence, that the tone and the pitch will be quite different. And so I think flexibility is important. What's your process for developing a very compelling, closing speech? I tend to rework what I'm going to say over and over again. And I think the good thing about that is it tends to get shorter. That is on the whole something that you should aim for. We're going to move away from the questioning of witnesses now and looking at speeches, submissions, addresses. Whatever you want to call it. And you mentioned, of course, when you're preparing your examination and chief, that you already have your closing address in mind. So you know exactly what you're looking for. I know that when I was at bar school, that I was told you do your closing first. That's what we all told. I didn't do that for a very long time. I still don't always do that, so my regret. So which stage do you prepare both your opening and your closing addresses? I'm going to fall in line and say, you need to prepare your closing first. But I understand what you mean. That you don't always do that. And indeed, I'll confess that I don't strictly speaking. I don't do that either. But what I do is that I analyse the case. I analyse the evidence in terms of what I will ultimately say about it. I may not necessarily write down or structure of closing address that is a complete work. Like it is something, it's a document that I certainly begin early in my preparation. And it is a document that goes through the journey of the trial with me and is added to and rejigged throughout. But the fabric of it, the structure of it, the what I'm going to say about the evidence, what my case theory is and what ultimate conclusion I'm going to ask the jury to draw and the reasons why are certainly, if not crystal clear, they're certainly along way there as part of my initial preparation and analysis of the evidence. And once you've got that under control and you've then worked out what evidence you're going to lead in evidence in chief to support your conclusions and your arguments, well then by that stage, you know what your case is. It's then simply a matter of structuring the story to tell the story of your trial in your opening. I guess I vacillate as to what is my favourite part of the trial, the opening or the closing. Sometimes the closing, that for me you were saying earlier that cross-examination is the sexy part of the trial. I think the closing address probably is for me. The other thing you said was practicing. Is that something that you do? Do you practice your speeches? Because I know for me a lot of the time, the first time that I'm saying it is the first time that I'm saying it in court, which I don't necessarily think is the best thing. So how do you manage that? We need to recognise that the pressures of busy practice don't always provide the opportunity to practice your performance, but it should always be on the agenda and it should be something that you prioritise and don't overlook the importance of actually practising what you're going to say and how you're going to say it. And I think that's because something that sounds really impressive inside your head may not be quite so impressive when you go through the discipline of forming sentences using English words and then say it out loud. So it helps you to crystallise your thoughts into actually something that is able to be communicated. But I think sounding out your arguments with other people helps to identify where the flaws are in your argument. You might be so wound up in your court, up in your case that you can't see an obvious alternative explanation. And so just testing that on your friends or on your family is a very effective way of testing your arguments before you get into court and before you start delivering them. One morning, a colleague of mine is at the defence bar. Well, I'd gone out for a walk and I was sitting on the edge of the river, I was having a coffee. And he walked past, obviously, on his way to work. And it was quite obvious that he was talking to himself. He was talking in his mind, but he was forming words. So he's walking along and he looked a little bit like a crazy person and he was gesticulating with his hands. But it was really obvious to me that he was talking through his arguments. Whatever it was, he was going off to court to do that day. He was actually working on it as he was walking to work that day, which is a lesson, I think, in the fact that there are more opportunities for us to practice our performance than we might ordinarily think. I went away for a weekend once when I was in the middle of a trial and I was going to be closing, making my closing address on Monday. And we went away for the weekend and we had to drive for five hours. And those five hours were me talking about my trial and my arguments and sounding them out and being challenged about them. And it was a very important process for me and working out what was and what wasn't going to be effective in my arguments. So in answer to your question, yes, I think it is very important to practice your performance to say your form, your ideas into words and into sentences and better still actually communicate them to another person and have them give you some feedback. Do you want to become a best advocate but you don't have the time to attend long in-person training courses? If so, the Advocacy Coach Members Club is the perfect solution for you. 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