On Tuesday morning, we will hear closing argument in People (of New York) vs. Trump.  There is a good chance that closing argument will spill over into Tuesday afternoon.  Personally, I think this is a mistake, As anybody who has sat through a long sermon, or a college lecture, or a State of the Union speech knows, it is hard to keep the audience’s attention even, when like a jury, they are supposed to be paying close attention.  But us lawyers like to hear ourselves talk and sometimes we dwell on what we find fascinating rather than what is really important in a case.

The basic structure of closing argument (whether in civil cases or in criminal cases) is that the party with the burden of proof (usually the plaintiff in a civil case and always the prosecution in a criminal case) goes first.  The other side (here Trump) goes next, and the party with the burden of proof then gets a rebuttal argument.  The total time allotted to both sides is the same, and the party with the split argument has to choose to split its time between the two (although in some places there is a requirement that the first part of the argument has to be longer than the final argument.  In some places, like where I practice, the court reads the instructions before closing argument.  In my opinion, this practice makes closing argument easier as the jury has already heard what they are supposed to be determining.  But, in New York, the court reads the instructions to the jury after the closing argument.  However, the attorneys know before they begin closing argument what those instructions will be.

The general rule for closing argument is to start and end with a strong statement about what the case is about (and why that dictates a verdict in favor of your side).  On paper, the defense has the easier job — they only need to win on one element of an offense while the prosecution has to win on every element of the offense.  In practice, unless the prosecutors are idiots, there is strong evidence supporting the charges, and only one or two elements are really in dispute (allowing the prosecution to quickly note that the other elements are not in dispute). Continue Reading...