Chapter 12: Ch02 Motion Practice, Openi RIEHL EDITS

Chapter 2

Statements, and Summation

■ ■ ■

Motion Practice

A. How to Prepare for a Motion Presentation

1.01 Motions

A motion constitutes any oral or written request seeking an order or some relief from a judge, arbitrator, or administrative hearing officer. In some tribunals, motions are called petitions or requests. Pretrial motions are commonly presented in writing. Trial motions can be made verbally during a trial or hearing. [Fed.R.Civ.P. 7(b)](https://www.westlaw.com/Document/NED074D20B95F11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NED074D20B95F11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). Post-trial motions are asserted orally after the trial or more commonly in writing.

Motion drafting can be greatly aided by LLMs. Tools connected to the law (e.g., cases, statutes, regulations, rules) can structure issues, pull jurisdiction-specific rules and deadlines, and convert factual timelines into element-based arguments with record citations. Counsel needs to validate authorities and quotes against official sources. LLMs can speed first drafts, forecast the opponent’s best points, and shape argumentation and proposed orders.

1.02 Types of Motions

There are as many types of motions as there are types of relief sought and available under the rules and law. Non-dispositive motions that seek procedural or related relief are the most frequently used (e.g., discovery motions). Dispositive motions usually seek a final outcome to all or some of the case issues (e.g., summary judgment).

1.03 Motion Documents

Common documents include: Motion, Notice of Motion, Affidavits/‌Declarations, Legal Memorandum, Proposed Order.

1.03.1 Motion

Motions designate the relief sought and the grounds for such relief. They are submitted by serving electronic or paper documents on other parties through their counsel and by filing them with the court, arbitration organization, or administrative law office.

1.03.2 Notice of Motion

The notice advises parties of the time and place of a motion hearing and the identity of the judge, if known. Anywhere from 5 to 30 days’ notice may be required, depending on the motion, unless it seeks emergency relief. The applicable rules determine the timing of the notice.

1.03.3 Affidavits/Declarations

Factual information regarding the motion is typically provided by an affidavit or declaration. An affidavit is a sworn statement under oath made by the affiant and notarized by a notary. A declaration is a statement by a person declaring the contents are true under penalty of perjury. The affiant or declarant has personal knowledge of the facts or bases them on reliable information and belief, and commonly is a party or witness or maybe a lawyer. GenAI can produce interview outlines that elicit personal-knowledge facts, add foundation, and avoid hearsay. AI tools might also assemble draft affidavits and declarations with exhibit placeholders which counsel can review and edit or confirm.

1.03.4 Memorandum of Law

Most forums require that a legal memorandum with authorities be submitted in support of a motion. A memorandum should contain a summary of the important facts and the legal authorities supporting the position asserted by the attorney. The memo may not need to cover in detail the regularly applied procedural rules, as the judge should know those. The memo should focus on the precedential law favoring the motion and how the relevant facts justify the relief sought. With access to cases, statutes, regulations, and rules, LLMs can surface controlling and distinguishing authority with short parentheticals and jurisdictional weights—and can draft tight issue statements that align facts with elements. This work can be reviewed and validated by counsel.

1.03.5 Proposed Order

A proposed order specifying the relief sought explains what outcome the moving party seeks. GenAI can helpfully translate requested relief into supportive proposed orders, complete with findings, conclusions, and favorable holdings. Counsel can review and edit the draft before submitting it to the judge.

1.03.6 Opposition Documents

A memorandum in opposition to a motion is required in many forums and expected in others. An opposing memorandum should explain why the motion should be denied, what rebuttal facts the judge needs to know, and what law requires the motion to be denied. LLMs can cluster the movant’s arguments, and with access to the law, propose targeted rebuttals with contrary authority, as well as generating evidentiary objections keyed to rule numbers and pinpoint cites. An order proposing the motion be denied is often submitted. The applicable rules explain what the opponent must submit.

1.04 Will There Be Oral Argument?

In court cases, parties typically have a right to an oral argument before a final decision is made. These arguments may be made in person or through a virtual real time video or phone conference. LLMs can simulate a hot bench by generating likely judicial questions, as well as providing concise potential answers, concessions, and fallback positions.

In some jurisdictions, a judge may advise the parties of a tentative ruling based on the written submissions and permit the parties an opportunity to present arguments relating to the tentative ruling and its reasoning. In other jurisdictions, no oral argument may be available unless requested for good cause. In many administrative proceedings, arbitrations, and some court cases, a decision on a motion is based on the written submissions of the parties without oral argument. Parties may request an opportunity for oral argument in all forums.

1.04.1 Might There Be a Hearing with Witnesses?

Some motions may require or permit testimony by witnesses. These situations involve issues that necessitate live or virtual testimony presented through witness examinations, often including direct and cross-examinations (e.g., injunctive relief or default motions). The rules or case law determine the extent of the testimony and whether affidavits/declarations would be insufficient to present the facts.

1.04.2 How Much Time Will Be Available?

Whether a specific time limit will be set for argument or hearing depends upon the decision maker. A reasonable amount of time is typically allowed. When the motion is scheduled with a calendar clerk, a specific amount of time may be requested. Some judges schedule motions from different cases during the same court session, and hear reasonable-length arguments back-to-back. The advocate must decide how much time is necessary and how the available time should be used. If more time is needed than initially allocated, a request may be made for additional time.

1.04.3 How Prepared Is the Decision Maker?

An advocate must ascertain whether the judge has read or is familiar with the motion, the case, and the applicable law. The extent of the judge’s familiarity with the motion determines the content of the motion argument. The extent of the preparation may be learned by contacting the clerk or law clerk and asking about the judge’s usual preparation practice, by previous experience before the judge, by asking other advocates, or by attending motions in former cases.

1.04.4 Location

Motions may be argued in a judge’s chambers, in a courtroom, or remotely. Some judges may prefer to discuss the merits of the motion on an informal basis in chambers, but the majority prefer the formality of a court or hearing room. Administrative law and arbitral motions are often heard via phone or video systems.

1.04.5 Sequence

The moving party usually argues first followed by the opposing party or parties. Rebuttal arguments by the lawyers are usually permitted as long as they are not repetitive and respond to the issues asserted by the opponent.

1.04.6 Recording

The practice of recording the oral arguments varies among forums. Federal courts typically have a court reporter present, and many state courts will as well. A number of state court and administrative and arbitral tribunals use audio or electronic recording equipment. Others do not record at all unless there is evidence offered at the hearing. The making of a record usually influences the tenor and content of statements made and reduces the likelihood of injudicious or extraneous statements.

B. How to Present a Motion Effectively

1.05 Presenting the Right Information

An effective, efficient, and economical presentation in support of or in opposition to a motion must address the following question: What information does the decision maker need to decide the motion in favor of the client?

1.05.1 Be Concise

Be succinct! Present the relevant law, grounds, and facts the judge needs to grant the motion. GenAI can assist in crafting and tightening issue statements.

1.05.2 Communicate Well

Two major presentation approaches are: (1) an appellate-like formal argument and (2) a less formal and more conversational dialogue. A blend of both approaches may be the most effective. To be an effectual advocate, counsel must adopt a persuasive style, display familiarity with the facts and the law, and demonstrate confidence.

1.05.3 Be Orderly

An advocate should preface the substance of an argument with a brief outline of what will be covered. The moving party who speaks first will want to include a short preface that contains a description of the motion, its grounds, and the relief sought—so the decision maker understands the proposed outcome. The motion, memorandum, proposed order, affidavits, or other moving papers may provide a reasonable structure for the presentation.

1.05.4 Present Substance

The presentation should contain an explanation of the facts and the law mixed with reason, logic, and equity. The mix and balance of these factors depends on their availability and influence. If the substantial weight of the law supports the motion, the law should be emphasized. If other factors are relevant and compelling, they should be the focus.

1.05.5 Explain the Law

Legal explanations should be accurate, understandable, and concise. Leading cases, supporting statutes, and succinct persuasive quotations should be referred to as necessary. Lengthy quotations should be avoided as they can be included in the memorandum.

1.05.6 Describe the Facts, Accurately

Facts in a motion hearing are often presented through affidavits or declarations, which contain the relevant and necessary information. A description of the facts during the argument should include a concise recitation of the relevant evidence and how the facts support the relief sought. This description should be accurate and not incomplete or exaggerated. If the description is not objective and complete or unfavorable facts are not addressed, the advocate will lose credibility and the decision maker may favor the opponent.

1.06 Be Persuasive and Compelling

The advocate must portray facts as vividly as possible so that they are memorable and persuasive. This presentation should be structured so that the facts are easy to understand and compelling. Rambling, disorderly presentations are confusing and ineffective.

LLMs can create storylines with memorable headings, vivid visualizations, and persuasive narratives. GenAI can also stress-test the opponent’s case by elucidating their weaknesses and countering them with legal authorities and arguments that expose their gaps. AI can also help bolster case vulnerabilities, drafting precise concessions where necessary and defusing potential attacks.

1.06.1 Use Notes

Arguments should not be read. Notes outlining the essential points of an argument or listing the testimony may be used as a guide during a presentation or hearing. Eye contact and cohesive body language coupled with a conversational, persuasive style can be most effective. Visual aids can be displayed through software and can also provide an outline for the advocate to follow on a laptop. LLM-backed tools can use the record to build timelines, element checklists, and hearing binders.

1.06.2 Display Exhibits

Exhibits—including real and demonstrative evidence and visual aids such as diagrams, charts, graphs, summaries, and relevant social media communications—can augment the presentation and help the decision maker understand an argument. Appropriately crafted visual illustrations can be useful in presenting positions that are difficult to explain.

LLM-backed tools can extract key facts from the record, then draft timelines, flowcharts, and persuasive visualizations. GenAI can also audit demonstratives for accuracy and admissibility risks—flagging hearsay and highlighting redaction gaps—so counsel can display orderly, persuasive visuals that closely adhere to the evidence.

1.06.3 Avoid Interruptions

An advocate should avoid interrupting an opponent or the decision maker. All statements should be directed to the decision maker, and advocates should avoid arguing directly with the opponent. It is unprofessional and discourteous to interrupt. Incorrect statements that are unfairly prejudicial, bear no relation to the motion, or mischaracterize a position can be addressed later in argument on rebuttal. An advocate who interrupts unnecessarily will often be admonished.

1.06.4 Explore Weaknesses

The presentation should contain references to the weaknesses of the opponent’s case or to the inappropriateness of a position taken by the other side. An argument to expose the opponent’s weakness should be directed in a positive, constructive manner. A defensive argument that merely attacks the opposition may appear weak. The advocate should also candidly deal with weaknesses of their own case.

1.06.5 Be Candid

An advocate must be candid while zealously presenting a client’s position. Counsel may have to compromise during a motion hearing. There may be other options beyond either granting or denying the motion that would satisfy the needs of the client. The decision maker may view the hearing as an opportunity for the parties to agree to a negotiated resolution of the issues.

1.06.6 Answer Questions

Questions asked by the judge, arbitrator, or administrative hearing officer should be invited and answered as completely as possible at the time they are asked. Advocates want to know what the decision maker is thinking about the motion, and the questions highlight what the decision maker is wondering. A motion presentation will be ineffective unless it responds to the issues that concern the decision maker. Asking decision makers if they have any questions or if any part of the presentation is unclear is a way to learn what they are thinking. Even if a decision maker poses tough questions, it’s better to try and respond than to avoid them.

1.07 Focus on the Decision Maker

The advocate should prepare to present an argument in such a way as to involve the decision maker in the motion. An effective presentation often develops an interchange between the advocate and the decision maker. The best way to develop this interchange is to invite and be open to questions as well as observe reactive facial expressions and demeanor.

Counsel can provide an LLM with information known about the judge—prior rulings, favored judicial philosophies, and hot-button concerns—using this data to shape arguments matching that judge’s preferences. If prior hearing transcripts, standing orders, and outcomes in similar cases can be included, AI can help draft precise arguments that the judge will find more persuasive.

1.07.1 The Ruling

After hearing arguments on a motion, the decision maker may make the ruling orally on the record or, more commonly, defer a ruling and issue it later in a written order. Occasionally, it may be appropriate to submit additional information to be considered. A few rulings or orders that involve significant issues dispositive of a case may legitimately be appealed immediately, but that is the exception to the general rule that orders are appealable only after a final judgment or order has been issued for the entire case.

1.07.2 Reconsidering the Ruling

Losing counsel may typically conclude the judge made the wrong decision and be tempted to bring a motion to reconsider. Such a motion may only be properly brought in exceptional circumstances: (1) if new controlling facts have arisen, (2) if the applicable law has changed, or (3) the decision maker has totally misapprehended the law or facts, resulting in a clearly erroneous ruling. Merely requesting a do-over is not only inappropriate, it is sanctionable. Counsel need a very compelling reason to seek a revised ruling. Some forums require the submission of a motion requesting reconsideration before allowing a motion to reconsider.

1.07.3 After the Ruling

Whether counsel wins or loses, it’s wise to consider the impact of the ruling on the case and determine whether other motions regarding other issues need to be or may be brought to help advance and win the case. The outcome of a motion, even if not favorable, may lead to success in future motions.

Opening Statements

A. Scope

2.01 Why Open?

The opening statement provides an opportunity to explain the evidence to the fact finder and to describe the issues to be resolved. An opening statement has a significant impact on the initial understanding and impression of the case and needs to be consistent with the prospective summation.

The main purposes are to:

 Tell an interesting and compelling story

 Highlight and summarize the evidence

 Focus on the issues to be resolved

 Blend supportive law with the facts

 Persuade the fact finder of the merits of the case

 Assist the judge, arbitrator, or hearing officer ascertain the issues

 Help jurors understand critical matters

 Motivate the decision maker to want to render a favorable outcome for the client*** ***

2.02 How to Open

As previously explained, the content of an opening needs to accurately reflect the facts and legal references, be harmonious with the planned closing, and tell a persuasive story.

2.02.1 What to Say

The facts that can be described include direct and circumstantial evidence. The opinions that can be described include admissible lay and expert opinions. The advocate should blend the evidence with the legal and factual theories of the case.

2.02.2 What Not to Say

If a witness, document, or some other form of evidence will provide relevant information during the case, those facts can and should be included in an opening statement. Otherwise, they need not be included. The advocate ought not describe information that likely is inadmissible.

2.02.3 Be Consistent with Summation

An outline of the closing is created at the beginning of the case and revised throughout so the advocate knows what needs to be proven, what evidence needs to be presented, and what law needs to be argued. The opening is based on the summation.

2.02.4 Focus on the Facts and Opinions

The opening is focused on the facts and opinions that need to be introduced and proven to win the case. This evidence forms the basis of the story told by the advocate.

2.02.5 Do Not Argue

The opening statement is not the time to argue the case. Summation presents that opportunity. The opening presentation should be a persuasive and compelling story that avoids argument. There can be a fine line between an appropriate opening and inappropriate argument.

2.02.6 GenAI as Expert Composer

LLMs can help turn the law and dry record into a tight opening salvo—hook, case theory, and relief—driving themes and a story through vivid facts mapped to memorable legal standards. GenAI can stress-test the storyline and propose memorable phrasing and storytelling.

B. How to Prepare

2.03 What to Consider

There are various factors that influence the preparation of a case opening which counsel needs to review to determine their impact.

2.03.1 What About Preliminary Evidentiary Rulings?

Opening statements may not refer to inadmissible evidence. Evidentiary rulings made before the opening permit the advocate to know what evidence will be admissible. See Chapter 1, § 3.20.2. A ruling on a summary judgment motion or an in limine motion can determine what evidence will be admitted. LLMs can compare your opening script against prior case rulings to flag inadmissible facts, suggesting safe rephrasing.

2.03.2 What Has Happened?

In a bench trial, what the judge knows and does not know about the case will determine the content of the opening. In administrative and arbitration cases, remarks made during discussions with the hearing officer or arbitrator will affect what should be said during opening. In a jury trial, what the jury hears or sees during jury selection will affect what is presented in an opening.

2.03.3 What Will Be Presented in the Summation?

The closing argument—planned before and completed during the trial or hearing—provides the scope, structure, and content of the opening statement to assure consistency between both presentations.

2.03.4 What Will the Opponent Say?

The advocate must anticipate and attempt to defuse the other side’s opening statement, theories, evidence, and case. Planning like the opponent’s advocate, counsel needs to predict what the other side will say, and be prepared to disprove or rebut it in the opening.

2.03.5 Select Visual Aids and Exhibits

Real and demonstrative evidence that will be introduced during the case can also be used in the opening. Appropriate visual aids can help the fact finder better understand the case theory and story, engage the interest of the fact finder, and add a persuasive impact to the opening. The decision maker is more likely to remember and understand the evidence when described through illustrative exhibits. A variety of computer-generated and paper-based visual aids can be created and used in the opening, as well as in summation, to present information that can be difficult to explain orally.

GenAI can provide visualizations, flow charts, and other visual methods to transform a dry record into compelling visuals: timelines, claim charts, and damages graphs—complete with captions, exhibit tags, and citations. If GenAI contains your deposition excerpts, discovered information, photo or video images, and data tables, AI can ideate and provide relevant and compelling visual aids that are clear and memorable.

C. How to Plan

2.04 Meeting Expectations

Planning decisions need to be made in the context of what jurors, judges, arbitrators, and hearing officer may expect. An advocate needs to choose the most efficacious means and the most persuasive content in an opening that reflects these needs and expectations.

2.04.1 Who Opens When?

Generally, the party with the burden of proof gives the first opening statement. In cases with multiple parties, the order of the opening statements is based on who has the more substantial burden of proof, the chronology of the factual events, which party has a counterclaim or an affirmative defense, or which party has the more substantial defense.

2.04.2 How Long Is Enough?

The opening statement should be long enough to explain what needs to be explained, yet short enough to maintain the attention of the fact finder. Common sense and an understanding of the listener’s ability to pay attention is a good gauge of the proper length. All important facts, issues, and positions should be addressed, but not everything need be included in the opening. Some matters can first be disclosed during the presentation of evidence and fully explained in the closing argument.

2.04.3 Should the Opening Statement Be Waived or Delayed?

An opening statement should never be waived because of the advantage an effective opening statement provides. It is usually best for the defense to give an opening immediately after the plaintiff’s opening. The fact finder will then hear evidence with an understanding of all positions. In some court cases, the defense may delay giving an opening until after the plaintiffs case for tactical reasons or if the defense is truly uncertain whether some evidence will be included or excluded. In some administrative and arbitral cases, the judge or arbitrator may know enough about a case that an opening may be unnecessary. Even in these situations, the advocate can present a concise opening listing the issues that need to be decided.

2.04.4 Compose It

The material for the opening statement should be organized in an outline format, which includes the introduction, body, and conclusion. Some advocates write out an entire opening, while others prepare an outline with key points and impact words.

2.04.5 Rehearse

Practice. Practice. Practice. Opening statements should not be read aloud from a written script, nor should they be memorized. The advocate need not try to remember exact words used during the practice sessions (unless the exact words are significant), but rather express the ideas that need explanation.

D. How to Organize

2.05 The Structure

A variety of structures are available in composing an opening statement.

2.05.1 Time

Events can be described in the order they occurred.

2.05.2 Flashback

The opening can start with the end of the story, and the remaining story can be told in flashbacks.

2.05.3 Parallel Events

The actions of the two parties can be told separately, culminating at the point when their stories mesh.

2.05.4 Claims, Defenses, Issues

The opening can be structured around the claims, defenses, or issues that will be proved during the trial.

2.05.5 Order of Evidence

The opening can reflect the order in which the evidence is presented.

2.05.6 Liability and Damages

In civil cases, liability can be first discussed in the opening, and then damages; or damages can be the introduction to the liability presentation.

2.05.7 Mixture of Substructures

A number of these approaches can be mixed.

2.06 Parts of the Opening Statement

An opening statement has at least three major parts:

 Introduction with Case Theory

 Body with Content

 Conclusion with Relief Sought

2.06.1 Introduction and Case Theory

An interesting and dramatic introduction may be the most effective way to begin an opening. The introductory presentation can contain a descriptive theory of the case stated with conviction using impact words. In jury trials, explanations of the purposes of an opening, the name of the advocate, and general introductory remarks can be presented after an attention-grabbing introduction. A description of the purpose of an opening before an arbitrator or administrative hearing officer is not necessary.

The theory of the case should be explained in a concise and persuasive way, emphasizing factual and legal themes. An explanation that blends the theories, themes, vital facts, critical legal conclusions, and compelling positions can make a strong opening statement beginning.

2.06.2 The Body

The presentation should be designed to explain the material facts and elements of the case that the fact finder needs to understand. This is the initial opportunity to tell the story: what happened and why, the decisive facts, the supportive witnesses, the persuasive exhibits, and the desired outcome.

2.06.3 The Conclusion

A strong conclusion may be achieved with a concise summary of the essential facts and a captivating statement that justifies a decision in favor of the client. At the very end of the opening, a fact finder should say privately: “If they prove that case, I want them to win.”

2.06.4 Opening Statement Critique

Questions that help determine whether an opening statement has been properly constructed include:

 Does the opening statement tell essentially what happened?

 Does the opening tell the fact finder why to find for the client?

 Does the opening make the fact finder want to find for the client?

 Does the opening tell how to find for the client?

 Does the opening have a structure that is understandable to follow?

 Is the opening statement consistent with what will be proved by the evidence and with what will be argued in summation?

 You can also place each of the above queries into an LLM with your prepared opening, and the AI system can provide a critique quickly and effectively.

E. Tell a Story

2.07 Story Telling

The content of an opening statement reflects the facts and circumstances of the case and the strategic and tactical decisions of the advocate. The following factors should be considered when preparing the opening.

2.07.1 An Effective Story

The opening statement should be told in a clear, comprehensible, and interesting manner in as dramatic a fashion as is appropriate. The advocate should neither talk down nor up to the fact finder.

2.07.2 Sufficient Details

The facts should be as detailed as necessary to provide an accurate and complete story. There will be facts that should not be included because of limited time and their lack of critical relevance. Some evidence can be initially introduced during the trial. If necessary, the closing can explain why the facts were not described during the opening. And there may be some details that should be left to the imagination and estimation of the fact finder.

2.07.3 Parties/Witnesses

Witnesses should be described in a way that will make their story understandable and their testimony credible. Critical witnesses need to be identified and their evidence highlighted.

2.07.4 The Event

The description of the incident, occurrence, or event should enable the fact finders to create a clear picture in their minds and memories. The image created needs to be consistent with the evidence that is introduced.

2.07.5 Circumstances

Explanations about the time, date, participants, and other information should be provided to the extent necessary. Explaining the what, how, and why of vital circumstances bolsters their persuasive effect.

2.07.6 What Happened

The facts of a case dictate the parameters of the presentation. Usually, there is not enough time to present all the details of what happened. The important facts that are essential to an overall understanding of the case and to a winning result need to be included and emphasized.

2.07.7 How It Happened

Often, an issue in a case will revolve around how something occurred, and this explanation needs to be part of the opening. The reason something happened or why someone did something will help shape the story and enhance its persuasive impact.

2.07.8 Why It Happened

The fact finder may be curious about why something happened. And although the why may not be critical to the case, it should be explained if a good reason exists. Why something happened or did not happen or why someone said or did not hear something will help the fact finder understand the context of the evidence.

2.07.9 GenAI as Storyteller

An LLM can be a most well-read storyteller. Trained on millions of narratives, AI can model how strong openings, rising action, and resolutions grip people’s attention. If GenAI contains the record, key dates, witnesses, and exhibits, an LLM can craft a clean arc that explains what happened, how it happened, and why it happened. The LLM can be instructed to include citations, ban embellishment, and surface only record-supported facts. With these instructions, the AI tool can propose vivid, fact-anchored details, assign clear motives, and sequence scenes so each point advances the legal theory. Counsel can then review, edit, and verify the results with the facts and law of the case.

F. Tell More of the Story

2.08 Additional Opening and Storytelling Approaches

Elements of elementary and advanced narrative methods can enhance the story being presented in the opening.

2.08.1 Prefatory Phrases

Some typical prefaces include “I will prove” and “the evidence will show.” The usefulness of prefatory phrases is a matter of debate among advocates. Some prefer using these prefaces; others will simply tell a compelling story without referring to what they or the evidence will show.

2.08.2 Visual Aids and Exhibits

Effective visual aids significantly increase the persuasive impact of an opening and help the fact finder understand the facts and details of the case, as previously explained. Care must be taken that the visual aids are not confusing, contain too much information, or are poorly prepared and presented. Computer software and devices are readily available to create compelling visual aids. A well-presented outline of the opening can enhance the presentation. Fact finders recall more of what they both hear and see.

2.08.3 Claims and Defenses

References to specific claims or defenses need to be highlighted. A civil case is about the claims asserted by the plaintiff and the defenses interposed by the defense. The openings portray stories with legal issues framed by these claims and defenses.

2.08.4 Disputed Issues

A reference to conflicts in the testimony or exhibits between the parties may help the fact finders understand what they have to decide. The case is being tried because there are at least two sides of the story, and it may be helpful to focus on and distinguish these differences. Some advocates prefer to tell the client’s story without referring to the other side’s version, making it appear that the client’s version is the only believable and correct version.

2.08.5 The Law

The advocate may discuss the law in a bench trial, administrative hearing, and arbitration. The extent of this explanation depends upon the level of understanding the judge or arbitrator has. In a jury trial, the attorney may make brief and accurate references to the law and blend legal explanations with the facts.

In a jury trial, the judge determines and explains the law to the jury at the beginning and end of the case, and counsel can apply the law to the facts during summation. In cases tried to a judge or arbitrator, counsel can explicate the law during the opening. How detailed an explanation depends upon what the professional decision maker knows about the applicable law.

2.08.6 Burden of Proof

It may be appropriate to mention the burden of proof in an opening statement if doing so is tactically advantageous. In a civil action, if there are factual disputes that can clearly be interpreted one way or the other, it may be advantageous for the plaintiff to mention that a preponderance of the evidence is sufficient for the plaintiff to win. In a criminal defense case, a reasonable doubt assertion will be essential.

2.08.7 Damages in a Civil Case

The plaintiff or claimant needs to explain the types of damages, injuries, expenses, and other relief sought. The fact finder should understand what it is the party wants and why. The extent of the detail provided in the opening depends on what the fact finder needs to know at the beginning, what can be deferred until the trial or hearing, and what needs to be explained in summation.

2.08.8 Amount of Damages

Advocates who prefer to present a detailed description of damages want the fact finder to know from the outset the extent of the damages sought. Mentioning a dollar amount creates a frame of reference. Other advocates do not state a specific amount sought because they prefer to wait until after the evidence is introduced and explain the amount sought in summation.

2.08.9 Request for Verdict or Award

An opening statement needs to contain an explanation of the outcome that the facts will support. This explanation should be clear and succinct so the fact finder understands what the party wants, who should win, and what conclusions must be reached for this to happen.

G. Use of Persuasive Techniques

2.09 Enhanced Tactics Can Increase the Effect of the Opening

The following sections offer techniques that can bolster the presentation of an opening.

2.09.1 Offensive/Defensive Approaches

An opening statement should lead the fact finder to a conclusion that the client is entitled to a favorable decision. The plaintiff will naturally take the “offensive.” Defendants may take a defensive or offensive approach, or a combined approach which may be more effective. Plaintiffs can easily present positive reasons why they should win. And defendants, while negating the plaintiff’s case, should use constructive reasons why they should win.

2.09.2 Anticipating Defenses

The plaintiff should anticipate defenses and deal with them in a productive way in the opening because there is no opportunity for rebuttal after the defense opening. All possible defenses need not be rebutted in an opening, with weak or irrelevant defenses ignored.

LLMs can help enumerate potential defenses and procedural attacks, as well as proposing crisp rebuttal arguments tied to facts and law. GenAI can also help craft preemptive counterarguments that might blunt opposing counsel’s best arguments.

2.09.3 Making Promises

A “promise” that certain evidence will prove a fact can be effective as long as the promise can be fulfilled. If it cannot, credibility will be lost and the opposing advocate will remind the fact finder of this failure in closing argument. The advocate may promise that evidence and facts will not be misstated or exaggerated. This does not need to be said explicitly if the opening is well presented.

2.09.4 Employing Understatement

Understatement can be a useful credibility-building tool when the advocate understates the case, sets an expectation, and then exceeds that expectation during the case. This can occur with supporting evidence. For example, if there are two persuasive sources of evidence, one can be highlighted in the opening and the other introduced during the trial or hearing.

2.09.5 Avoiding Overstatement

Embellishing facts and opinions should be avoided during an opening. If something is described that cannot be proved, the client’s case is weakened. The opponent may comment during summation about the absence of exaggerated evidence.

2.09.6 Asserting Difficult Positions

Facts and issues in some cases will be more difficult for the fact finder to agree with and accept. This point can be acknowledged. For example, the client may have done or said something stupid or wrong, but that does not mean the client should lose the case. It may be easier to win a case if the client is likeable and pleasant, but not everyone can be portrayed this way. The advocate can remind the decision maker that justice is available for everyone—not just for amiable and affable people.

LLMs can help convert bad optics into legally relevant themes. If GenAI is supplied with the record and governing standards, this AI tool can propose arguments, remedies, instructions, and empathetic language that humanize the client. Decisions should be anchored in law, not likability.

2.09.7 Describing Case Weaknesses

Notable weaknesses that will appear in testimony or exhibits should commonly be addressed in a candid and forthright manner to reduce the impact of the problem. An honest disclosure may increase the credibility and sincerity of the advocate. For example, damaging evidence, mistaken witnesses, or the criminal record of a client should be addressed in the opening so that it does not occur as a surprise or shock later in the case.

GenAI can scan facts and arguments to surface weak points, proposing candid, client-favorable explanations backed with legal and factual citations. This AI tool can help limit the scope and sting of weaknesses, supplying clear language acknowledging the issue, while also pivoting to the strongest elements and requested relief.

2.09.8 Explaining the Absence of Evidence

During the opening, the advocate can describe critical facts that will not be proved, documents that will not be introduced, and evidence that will not be presented, and explain their absence. If there is significant information that does not exist or no longer exists, its absence should be addressed in the opening.

2.09.9 Qualifying Remarks in Jury Trials

Statements to a jury explaining that the advocate’s statements are not evidence and should be ignored may not be necessary as they diminish the impact of the opening. In cases where the opponent has a compelling story and the burden of proof, it may be helpful to remind the fact finders that they will hear, see, and decide what the evidence actually supports during the case.

H. How to Deliver the Opening

2.10 Opening Presentation

A number of considerations affect the quality of the opening presentation. The advocate needs to consider proper bearing and deportment and their impact.

2.10.1 Position

The advocate is usually more effective standing in front of the fact finder and not hidden behind a lectern or table, unless required by rule to do so or is physically unable to stand. The distance should be neither so far away that personal contact is lost nor so close that it feels uncomfortable.

2.10.2 Demeanor and Deportment

An effective way to establish credibility, sincerity, and attention is to maintain a professional demeanor. The advocate should address the fact finder during the opening. The use of gestures, eye contact, and mannerisms should be natural and not distracting. The deportment and professional attitude displayed by counsel needs to be consistent with what is presented and can influence impressions.

2.10.3 Use Transitions

Appropriate transitions can be used to maintain interest, demonstrate confidence and authority, and develop transitions. A clear structure, change of pace, silence, a louder voice, a softer voice, visual aids, movement, and gestures are all devices that can signal a transition. And a properly signaled transition helps maintain the attention and focus of the fact finder.

2.10.4 Observe Reactions

Observing the reactions of the fact finder during the opening allows the advocate to adjust the presentation accordingly. If the fact finder appears not to understand or accept something, counsel can appropriately react.

2.10.5 Notes and Outlines

Overuse of notes or a script will be distracting. A non-distracting use of an outline can be effective. Advocates should avoid pretending not to rely on prepared notes.

2.10.6 Exhibits and Visual Aids

Real and demonstrative evidence that will be introduced as exhibits may be used during the opening, and visual aids can be created to help make the opening easy to follow and effective. GenAI can storyboard the opening, link each scene to witnesses and exhibits, and might propose when and where to place visuals for maximum comprehension without veering into argument.

2.10.7 Generative AI Aiding Prep and Delivery

GenAI can record and transcribe your rehearsal openings, then score clarity, structure, pacing (e.g., words per minute), filler words, hedges, and compare your delivery with your outline. If you add video review, tools can flag posture, eye-contact breaks, and distracting gestures. GenAI can also suggest remedies and is readily available to let you practice numerous times, critiquing you with consistent, data-backed feedback.

I. Complex Cases

2.11 Opening Statements in Complex Cases

Complex issues should be simplified as much as possible and explained in a straightforward manner. The fact finder must believe the issues are manageable. Resources such as creative visual aids, computer graphics, communication experts, and AI tools may help the advocate explain complex matters.

J. What You Cannot Do

2.11 What Is Improper?

Certain statements and comments made during an opening are objectionable and need to be avoided.

2.11.1 Referring to Inadmissible or Unprovable Evidence

Referring to inadmissible or unprovable testimony and exhibits is prohibited, as is referring to evidence that will not be introduced or used.

2.11.2 Appropriately Referring to the Law

The law may be addressed before professional decision makers in bench and administrative trials and arbitrations. Counsel in a jury trial may make brief references to the law, but should not explain details of the law or give instructions concerning the law to the jurors, as that is the function of the judge.

2.11.3 Making Argumentative Statements

Making argumentative statements is not appropriate.

2.11.4 Stating Beliefs and Opinions

Stating personal and individual professional beliefs and opinions of the advocate is inappropriate.

2.11.5 Putting Fact Finders in the Place of the Party

Putting fact finders in the place of the party is not appropriate. Fact finders are to base their decision on the testimony and exhibits and not substitute their personal experiences for the evidence.

2.11.6 Speculating About the Opponent’s Case

Guessing or conjecturing about the other party’s evidence is improper.

2.11.7 Making Disparaging Remarks

Making derogatory remarks about the opponent or adverse participants is improper, unfairly prejudicial, and unethical.

2.11.8 Additional Prohibitions

Comments about insurance in civil cases, the failure of a defendant to testify in a criminal case, and pleas to passion or prejudice are prohibited.

2.12 What are Proper Objections and Motions?

Objections are usually not made during an opening and are appropriate only when the speaker violates one of the above prohibitions or goes beyond common-sense boundaries. If an objection is sustained, the mistake should be corrected and the opening continued. If the objection is overruled, the advocate should continue with the opening and may repeat or emphasize the statement.

2.12.1 Asking for Curative Instructions

After an objection has been sustained in a jury trial, counsel making the objection should consider asking the judge to instruct the jurors to disregard the improper comment, unless it unduly highlights it.

2.12.2 Opening Statement Motions

Before an opening, an advocate may bring a motion to have the court limit the opponent’s opening time and scope. After an opening, an opposing party may bring a motion to dismiss or a motion for a judgment as a matter of law or directed verdict on an issue in the case based on admissions made during opening on the ground that the opponent has failed to establish prima facie support for that proposition. Another possible request by plaintiff is to present additional facts in rebuttal to defendant’s inappropriate opening.

K. Problems to Avoid During Opening

2.13 Avoiding Obvious Predicaments

In summary, counsel should eschew the following:

 A weak beginning

 A confusing structure or disorganized story

 Exaggerating facts

 Not being candid

 Failing to use explanatory exhibits

 Referring to inadmissible evidence

 Sounding like an argumentative advocate

 Poor delivery

So, plan, prepare, and practice until you have a winning opening.

Summation

A. Scope

3.01 Be a Persuasive Advocate

Summation is the last opportunity the advocate has to make an oral presentation to the decision maker, and usually occurs after the close of all the evidence. It is also known as final or closing argument. But the term ‘argue’ is a misnomer as the effort is not primarily an argument. Summation is an advocation of the case in a reasonable, persuasive, and compelling presentation.

3.01.1 What Is the Purpose?

The purposes of summation include:

 Summarize the factual story

 Explain the significance of the testimony

 Emphasize supportive evidence

 Review real and demonstrative evidence

 Draw reasonable inferences

 Clarify the law applicable to the facts

 Highlight the rational and emotional dimensions of the case

 Describe the party result that the law and facts support

 Integrate the theories, evidence, and law

 Present a cohesive and comprehensive presentation

 Convince the decision maker the client deserves to win

3.01.2 What Is the Summation Story?

The story of the case that began with the opening statement and that was developed during the trial or hearing is the story to be summarized in final argument. The presentation should focus on the theory of the case, describing how the facts apply to the law, explaining the reasons why the party is entitled to a fair and just outcome, and containing an appropriate balance of appeals to reason and to the human dimensions of the case.

Decision makers base their conclusions not only on reasonable and rational reasons but also on compelling human aspects. An advocate can present a summation that touches the appropriate emotions, feelings, and hearts of the fact finders—as well as their intellects and thoughts. An appeal to sentiments needs to be buttressed with convincing facts and persuasive law. Decision makers want to do what is just and fair, and also feel righteous about their conclusions.

LLMs excel at summarization and that strength can help compress the record—testimony, exhibits, and instructions—into a tight, element-by-element closing. If a GenAI platform contains the key evidence and transcripts, the tools can extract decisive quotes, building clean fact-to-law chains. The tools can even draft versions tailored to the judge and jury demographics and idiosyncrasies. GenAI is a natural storyteller which the advocate can edit and enhance.

B. What Can Be Presented

3.02 Case Theory, Facts, and Law

A focal point of summation is a fuller explanation of the theory of the case introduced at the opening and developed during the trial. The following factors compose and support the case themes.

3.02.1 Facts and Opinions

All facts and lay and expert opinions that are a part of the record, especially those in dispute, may be described during summation.

3.02.2 Inferences

Inferences are reasonable conclusions drawn from the evidence presented. The inference ought to be apparent from the direct evidence or at least reasonably based on the circumstantial evidence.

3.02.3 The Story

The words, phrases, statements, and exhibits that have been introduced throughout the trial or hearing comprise the overall story. These detailed explanations need to be consistent with the opening statement, with what the credible witnesses said, and with what the cohesive exhibits portrayed.

3.02.4 The Law and Legal Theories

The goal of the advocate is to explain how the law supports the result sought and how the evidence supports the legal theories. In a jury trial, the judge has or will explain the applicable law to the jurors. In other cases, the professional decision maker will apply the germane law to the facts.

3.02.5 Rhetorical Devices

The advocate has the opportunity during summation to use anecdotes, analogies, and metaphors involving common life experiences as well as a variety of other persuasive techniques. These techniques help explain what happened, why it happened, and why the parties and witnesses said and heard what they did. Literature and other arts and humanities sources are replete with these devices that can reflect the relevant circumstances of a case.

3.02.6 Urging a Result

Summation is the last opportunity to clearly explain to the decision maker the specific relief that the advocate wants and the party deserves.

3.02.7 Underlying Values and Norms

A requested outcome that reflects and is consistent with the values and norms of the decision maker increases the chances of success. Fact finders prefer to make decisions that comport with their beliefs, mores, tenets, ideals, and ethics. Arguments based on contrary positions will not be as persuasive. The challenge of the advocate is to predict controlling attitudes and standards that favorably influence the decision makers.

3.02.8 New and Novel Explanations

A critical goal of summation is to present a compelling explanation of facts and law that has not been thought of or considered by the decision maker. An adroit advocate provides favorable insights and fresh ideas not readily apparent from the case story that support the preferred outcome.

3.02.9 What Not to Present

The advocate is not required to summarize everything; however, a failure to refute a credible assertion may be a mistake. Some advocates believe that ignoring a weakness is better than trying to explain it because explaining gives too much attention and credence to the issue. Others believe that it is necessary to explain away weaknesses in order to maintain credibility and to avoid the perception there is something to avoid. Each real vulnerability needs to be analyzed to determine which approach is best.

C. How to Prepare

3.03 Compose an Initial Draft

Outlining a summation is one of the first things done preparing for a trial or a hearing. Planning begins with this preparation as the closing comprises the focus of the entire case. An LLM that contains the facts and law of the case can initially help with this effort.

3.03.1 Rely on Jury Instructions

In jury trials, the judge informs the attorneys of the exact instructions of law to be provided to the jury. In most jurisdictions, the charge to the jury by the judge takes place after summation; in others, it occurs before the closings. The instructions provide a useful legal framework for the closing, and all statements of law made by the attorney to the jurors must be accurate. Jury instructions that state the elements of claims and defenses may also serve as a guide in preparing a summation in a bench trial or arbitration.

3.03.2 Identify Central, Pivotal Issues

Summation addresses the critical issues and legal elements in a case, and identifies those that are undisputed and those that need to be resolved. The advocate provides reasons and explanations why those in controversy are to be resolved in favor of the client.

3.03.3 Meeting Expectations

As with the opening statement and the evidence presentations, it’s wise to meet the expectations of the judge, jurors, arbitrator, or hearing officer. These decision makers, influenced by what they see and hear in the real world, will expect summation to meet their expectations of what compelling evidence exists and how it convinces them of the winning arguments.

3.03.4 Anticipate the Opponent’s Position

The more accurate counsel can anticipate the positions and arguments of the opponent, the better the chances that a summation can be constructed to rebut or reduce the impact of the opposition closing. These predictions are based on the opposing opening, their evidentiary submissions including the cross-examinations of the advocate’s witnesses, and proposed jury instructions or proposed orders or awards. Again, an AI tool can assist in providing an example of the opponent’s final argument.

3.03.5 Select Exhibits and Visual Aids

Any exhibit that has been received as evidence during the case may be used during summation. Additional visual aids may be created and used to help the decision maker understand and recall the significant parts of the trial or hearing, including those used during the opening statement.

3.03.6 How Long Is Enough?

Summation should be long enough to cover all the essential issues and elements of the case, yet short enough to maintain the attention of the decision maker. There is no precise duration. But a reasonable time period and common sense are guides. A complex or lengthy trial will require a long closing while a short hearing may entail a succinct but thorough summary.

3.03.7 Who Closes When?

The general rule is that the party who has the burden of proof (plaintiff/prosecutor) closes last. The specific jurisdictional rules govern the order of argument. This commonly occurs two ways: (1) the plaintiff presents first, followed by the defense with a rebuttal by the plaintiff, or (2) the defense argues first, followed by the plaintiff. In a few jurisdictions the plaintiff argues first and has no rebuttal.

3.03.8 The “Opening” Summation by Plaintiff/Prosecutor

In jurisdictions that permit rebuttal, the plaintiff must decide what to include in the initial presentation and what to save for rebuttal. It may be preferable to save some important related points for rebuttal to deprive the defense of the opportunity to counter such arguments.

3.03.9 Rebuttal Argument

Rebuttal arguments should counter points made by the defense and can emphasize pivotal issues not completely addressed during the initial closing.

3.03.10 Write It Out

Many advocates compose detailed keyword outlines while others prefer to prepare a written or printed “script” of their final argument. It is inadvisable to read from the prepared documents or the laptop display as this diminishes the persuasive impact of the presentation. Illustrative aids can provide a visual summary of all or part of the summation that the decision makers can observe and follow.

3.03.11 Rehearse

The closing must be rehearsed before presentation until the advocate knows it backwards and forwards. Comprehensive and multiple verbal preparations permit counsel to improve both the substance and the style of delivery, increase familiarity with the content, and reduce reliance on prepared notes. As with the opening, a prepped LLM can readily critique the rehearsals offering alternative approaches.

3.03.12 Summation Critique

Does the closing:

 Specify the sought after outcome?

 Explain why to find for a party?

 Describe how to find for a party?

 Compel the decision maker to want to find for the party?

 Cover all the evidence and law that needs to be explained?

GenAI that contains the facts and law of the case and the planned summation can apply these queries and propose changes and additions to improve the contents.

D. How to Organize

3.04 Use a Comprehensive Structure

The structure must allow for the effective and persuasive presentation of all that needs to be covered in the summation. And it should be easy to follow. There are various options in constructing a closing.

3.04.1 Time

Chronological presentations are timely and easy to follow.

3.04.2 Flashback

The final argument can begin with the conclusion and flashback to earlier events.

3.04.3 Undisputed and Disputed Facts

The evidence can be summarized first by describing the undisputed facts and then highlighting the disputed facts with detailed explanations.

3.04.4 Order of Key Witnesses

A structure can be based on the order of witness testimony.

3.04.5 Issues, Positions, Topics

Summation can be arranged to reflect the order in which the issues, positions, or topics were presented.

3.04.6 Claims or Defenses

The organization can be based on the claims the plaintiff asserts or on the defenses the defendant raises.

3.04.7 Liability and Damages

In civil cases, summation could begin with an explanation of liability followed by damage issues, or vice versa.

3.04.8 Jury Instructions, Verdict Form

In a jury trial, summation can be based on the order of the jury instructions and the verdict form.

3.04.9 Comprehensive Factors

Major segments of a comprehensive closing include the following:

 Summary of the case theory

 Introductory remarks

 Explanation of pivotal issues in the case

 Summary of important facts, opinions, and inferences

 Description of who, what, when, where, how, and why

 Application of facts to support legal elements

 Summary of strengths of the case

 Responses to weaknesses of case

 Explanation of weaknesses of opponent’s case

 Reference to burden of proof

 Explanation of key jury instructions or verdict form

 Explanation of reasons why jury should return favorable verdict

 Description of the result sought

 Concluding remarks

3.04.10 LLMs and Organization

LLMs are excellent at coalescing messy ideas into clean structures, clustering related points. This AI tool can join disjointed segments—bullets, transcript snippets, exhibit cites—and organize a closing by issues, elements, witnesses, and timelines, then rebuild the draft using the structures above (e.g., chronology, flashback, fact dispute status, claims and defenses). GenAI can reorder paragraphs, introduce punchy oral signposts, smooth transitions, and trim repetition. LLMs can help your summations be clean, complete, and comprehensible.

E. Introducing the Closing

3.05 Introduction

The beginning sets the tone for the summation and should be designed to have a persuasive impact. The following examples demonstrate alternative introductory statements.

3.05.1 Case Theory Re-Introduction

A few sentences or paragraphs can summarize the legal theories and apply them to the facts, as previously explained in the opening and throughout the trial or hearing.

3.05.2 Dramatic Introduction

An introduction should establish an atmosphere, set a tone, and grab attention.

3.05.3 Outline of Introduction

The final argument can begin with an explanation that outlines the content of the presentation.

3.05.4 Explanation for Jurors

While summation may begin with an explanation of its purposes, this introduction has less persuasive impact than other beginnings. This explanation can be delayed until after a case theory or dramatic introductory statement.

3.05.5 Expressing Gratitude

It is often appropriate during closing argument to thank the decision makers for their attention and time—if done sincerely. A “thank you” need not be presented at the beginning and can be proffered later.

3.05.6 Defense Introductions

The defense counsel can use any of the opening techniques where the defense argues first. The advocate who argues second need not provide a generic introduction. A good defense can begin with bold statements emphasizing the defense story before commenting on the failure of the plaintiff to prove its case. The beginning can also address significant contradictory evidence or counter a statement made by the opponent.

3.05.7 Rebuttal Introductions

The advocate who has a rebuttal argument can begin with a prepared introduction or with remarks that contradict the opponent’s argument.

3.05.8 Alternative Introductions

Alternative introductions can be prepared in advance of the trial or hearing that anticipate potential changes in evidence or unexpected developments.

3.05.9 Conclusion

Summation should conclude with a strong ending prompting the decision maker to think: this party deserves to win.

F. Tell a Story

3.06 Examples of Arguments

An advocate may:

 Draw reasonable inferences from direct or circumstantial evidence.

 Assert that certain evidence implies a reasonable conclusion.

 Present conclusions based on the facts and circumstances of the case.

 State that the decision maker should apply common sense in deciding the case.

 Suggest that the decision maker apply universal life experiences in evaluating facts and opinions.

 Explain why the party deserves to win based on the law and merits of the case.

3.06.1 Summarize the Story

The explanation of the facts may be told in a story form, which includes descriptions of the scene, the characters, and the event. The goal should be to summarize facts in a way that is reasonable and consistent with the evidence and the recollection of the fact finder.

3.06.2 Explain Why Something Happened

Summation provides the opportunity to explain why something happened the way it did, what motivated someone to say or do something, or why something that should have happened did not.

3.06.3 Describe the Evidence

The description of evidence should be consistent both with the facts described in the opening statement and with the evidence produced during the case. Specific references to precise testimony of witnesses and the exact contents of documents can establish certitude or likely probabilities.

3.06.4 Present Witnesses

The advocate may summarize the evidence by identifying the witnesses by name or position who testified to supporting facts and opinions.

3.06.5 Explain the Credibility of Witnesses

Statements can be made that explain the credibility of witnesses and why some witnesses are more believable than others. The advocate should present objective factors that result in a conclusion that a supporting witness is credible and that an opposing witness ought not to be believed. Impeachment techniques can be used during the case to establish facts that reduce a witness’s credibility. During closing, counsel can restate the facts developed on cross-examination that establish why a witness should not be believed or that a witness’s perceptions are improbable or implausible.

3.06.6 Describe Circumstantial Evidence

The differences and importance of direct and circumstantial evidence should be explained, and the value of circumstantial evidence should be made clear. If direct evidence favors one party, that should be emphasized. If circumstantial evidence favors a party, explanations on how circumstantial evidence supports conclusions should be emphasized.

3.06.7 Detail and Corroboration

A detailed factual explanation has the advantage of explaining the relationship between various types of evidence that may not have been obvious or made clear during the case. Evidence may have been introduced in bits and pieces, and summation provides the opportunity to present all the evidence in an ordered, comprehensive way.

3.06.8 Refer to Actual Evidence

A factual explanation may employ words used by the witness or language that appears in documents. Quoting the testimony of a witness and mixing that quote with a factual summary can be an effective approach. Evidence that appears in electronic or paper exhibits can be highlighted and displayed for emphasis.

3.06.9 Explain the Favorable Application of the Law in Jury Trials

The judge will explain the law during final jury instructions. An advocate must summarize and describe pivotal instructions while being sure to accurately state the content of the instructions as applied to supportive facts and opinions.

3.06.10 Describe Special Interrogatories

Local rules and case law will determine whether an attorney can inform the jury that the answers to any one of the interrogatories on a verdict form may determine the outcome of the case.

3.06.11 Explain the Jury System

One or both attorneys may explain the vital purpose the jury serves in our judicial system.

3.06.12 Request a Verdict

Summation must include an explanation of the specific outcome the advocate wants for the client. The decision makers need to know precisely what needs to be decided in order for a party to win and an opposing party to lose.

G. Use Persuasive Techniques

3.07 Crafting a Compelling and Convincing Summation

Effective techniques that can enhance the persuasive impact of a closing include the following.

3.07.1 Use Analogies, Metaphors, Anecdotes

The images described through a relevant and applicable analogy, metaphor, or anecdote may help the decision maker understand the point of law or application of fact to law.

3.07.2 Be Creative

One of the primary tasks of an advocate is to be creative and innovative and explain the significance of evidentiary inferences. Counsel can explain a critical inference that the jury, judge, or arbitrator was unable to initially perceive or understand. A reasonable explanation of an event or circumstance may prove to be a reason why a party wins or loses.

3.07.3 Use Exhibits and Visual Aids

Exhibits and visual aids assist fact finders to understand direct and circumstantial evidence and help simplify complex theories and facts, as well as make a closing more interesting and informative. The design, placement, and use of exhibits in summation can be very persuasive and compelling. For example, a variety of AI and computer software programs can create chronological timelines, damages summaries, comparative graphs, illustrative charts, and 2D and 3D recreations. Advocates can craft explanatory and persuasive exhibits (or use AI or hire someone to do so) and practice introducing and using them for maximum effect.

3.07.4 Ask Rhetorical Questions

Rhetorical questions can be an effective tool of persuasion because they can directly involve the decision maker in the presentation. The challenge is to ask a rhetorical question the decision maker will answer favorably. The advocate can provide the answer to the question so the fact finder gets it right.

3.07.5 Rely on Appropriate Parallel Experiences

It can be helpful during final argument to mention situations the fact finders might have experienced that resemble what happened in the case. The advocate cannot ask the fact finder to consider evidence outside the trial or hearing, but can ask the fact finder to use common sense and life experiences to determine credibility, what factually happened, and what the outcome of case should be.

3.07.6 Appeal to Reason and the Humanistic Dimensions

An approach that blends these two factors increases the chances of a successful result. Some cases have more logical supporting reasons; other cases have more emotive factors. Every case has some of both. The challenge is to identify and explain how reason and the human dynamics of a case support the relief sought by a party.

3.07.7 Focus on Prevailing Values and Norms

As mentioned previously, supporting reasons for a favorable result should focus on the beliefs, tenets, and principles of the decision maker. These factors should be emphasized and enhanced in summation.

3.07.8 GenAI and Time-Honored Story Frameworks

Because LLMs have internalized centuries-old successful storytelling frameworks, this AI method can leverage that narrative expertise to craft a more gripping and memorable summation. If this tool has the case file, record highlights, and case themes, it can match parties to archetypes, propose illuminated analogies and metaphors, supply crisp rhetorical questions, identify the human stakes, and align with the decision maker’s preferred values and norms.

H. Emphasize Positives over Negatives

3.08 Tactical Considerations

A range of tactical approaches can strengthen a summation. GenAI can identify and apply effective techniques to a prepared closing. Counsel can then review and decide what works best.

3.08.1 Explain Away Contradictions

The task of an advocate is to highlight inconsistencies between witnesses, point out contradictions in testimony, and explain how counsel’s client is credible and more believable and deserving of a favorable decision.

3.08.2 Comment on Case Weaknesses

If an advocate can think of a reasonable interpretation that reduces an obvious weakness, that explanation should be provided. If the advocate cannot think of a mitigating explanation, the weakness should be recognized and, if critical, conceded in a forthright manner and countered with contradictory compelling facts or opinions.

3.08.3 Attack the Opposition’s Positions

An effective technique may be to attack the logic and reasonableness of the opponent’s contentions. Arguments that attack the opponent’s case must be balanced with arguments that support the advocate’s case.

3.08.4 Address Negative Suggestions

It could be viewed as ineffective to raise insignificant weaknesses of an opponent in summation. However, a tactful presentation that suggests the cumulative impact of these minor weaknesses creates a major failing can demonstrate the overall flawed nature of the opponent’s case.

3.08.5 Identify Broken Promises

An advocate should address unfulfilled statements, promises, or references to evidence made by the opposing counsel in opening statement or closing argument.

3.08.6 Explain Absent Evidence/Witnesses

An advocate may comment on the significance of facts not introduced by the opponent. If an opponent chooses not to introduce certain evidence that is or may be available, that failing may be proof that the facts are different than what the opponent suggests.

3.08.7 Explain Lies vs. Mistakes

It is a better tactic to describe a conflicting witness as mistaken about the facts rather than as a liar—unless, of course, the facts actually establish the lies. Explaining why a witness is wrong may be an easier proof task. Most witnesses do not deserve to be called liars. However, there are some types of witnesses who are easily disliked and who, if caught in a lie, may be called a liar in summation.

3.08.8 Motive and Motivation

Advocates commonly need to present evidence and arguments that explain the motives and motivations of parties. Why something happened—or did not occur—can be relevant or may need to be explained to satisfy the curiosity of the fact finders.

3.08.9 Anticipate Rebuttal Argument

In a jurisdiction where the party with the burden has an opportunity for rebuttal, the defense may need to explain that there will be no opportunity to counter what the plaintiff will say during the rebuttal argument.

I. Summation in a Criminal Case

3.09 Criminal Case Closings

Summation in criminal cases merit special attention to rules and legal principles.

3.09.1 Describe the Criminal Burden of Proof

Both the prosecution and the defense should explain the “beyond a reasonable doubt” burden of proof and how it applies to the case specifics.

3.09.2 Comment on Lesser Included Criminal Offenses

It can be difficult to deliver an argument that seeks conviction on two charges (one being less severe), because alternative arguments are hard to follow and the important issues may become confused. It may be useful to begin with the lesser crime and argue strongly that the facts support the greater crime as well.

3.09.3 The Defendant’s Constitutional Right

The state and federal constitutions protect the defendant and place limits on what the prosecutor can say in final argument, including not commenting on the defendant’s “failure” to testify.

3.09.4 Applying Useful AI Tools

GenAI can help criminal-defense summations humanize clients—linking facts to relatable themes like work, family, remorse, and proportionality—while staying within constitutional limits and evidentiary rules. GenAI can also assist the prosecution with identifying and selecting appropriate words that bolster the elements of the crime.

LLMs can propose plain-English explanations of “beyond a reasonable doubt” and lesser-included offenses, supply respectful metaphors and anecdotes that fit community values, and sequence proof to spotlight reasonable alternatives. AI models can also stress-test drafts, suggesting rewrites that keep the jury focused on law, evidence, and fairness.

J. Summation in a Civil Case

3.10 Civil Case Closings.

Similarly, there are special considerations that apply to civil cases.

3.10.1 Describe the Civil Burden of Proof

Advocates for both sides must decide whether to discuss or describe the burden of proof. If it is advantageous to do so, the burden of proof should be explained. Plaintiffs want the jurors to understand the plaintiff need only prove a supportive fact is more likely than not to have occurred. Defendants want the jurors to know that possibilities or empathetic stories do not meet the proof burden. If not explained in jury trials, the legal description can be left for jury instructions.

3.10.2 Address Liability and Damages

Liability and damages should be addressed. There is no singular order. An advocate in a civil case may prefer to argue damages after explaining the basis for liability, or vice versa.

3.10.3 Describe an Award of Damages

The plaintiff needs to explain why damages should be awarded to reimburse the plaintiff for the injuries suffered or expenses incurred. The defense should explain why damages should be less or not awarded.

3.10.4 Explain the Amount of Damages

The closing should contain not only a request for a specific amount of damages to be awarded, but also an explanation of why that specific amount is sought and how the damage amount was calculated. It is risky not to mention a specific amount, especially in a jury trial. Because the jury may be uncertain or confused about how to calculate damages and what to award.

3.10.5 Making a “Per Diem” Argument

A plaintiff may use a “per diem” argument, which divides a period of time into small units and assesses a dollar value for each of these units. Some jurisdictions place restrictions on the use of this technique or prohibit it.

3.10.6 Do Not Comment on the Financial Status of Party

The general rule is that the financial status of a party (rich or poor) is irrelevant and cannot be mentioned in final argument. However, in some cases, such as a claim for punitive damages, this information is appropriate.

3.10.7 Explaining the Impact of Tax Laws

The general rule is that tax laws or the tax impact on money damages cannot be mentioned during closing argument. The amount of a damage award may or may not be taxable income. The judge, arbitrator, or hearing officer may make adjustments if the impact of taxation applies to an outcome.

3.10.8 Do Not Refer to Liability Insurance

The general rule is that neither party may refer to the existence or nonexistence of liability insurance (that has or may pay for damages) during a case, and this rule includes summation. Insurance issues may be raised if offered to prove agency, ownership, control, bias, or some impeachment issues.

3.10.9 Utilizing AI Tools

Similar to criminal cases, an LLM can assist counsel in properly framing issues and in avoiding problematic statements in civil actions. See § 3.09.4

K. How to Deliver the Summation

3.11 Effective Presentation Methods

The more effective and persuasive an advocate is in presenting a final argument, the greater the chance a favorable determination will be reached. Many of the factors that influence the presentation of an opening statement also affect summation.

3.11.1 Front and Center

The advocate needs to present the closing from a position that enhances its presentation. In general, the more effective location to stand, if able, is in front of the decision maker, not hidden behind a lectern.

3.11.2 Deportment and Bearing

The advocate needs to coordinate body language, eye contact, facial expressions, and mannerisms that are appropriate and natural and that enhance the presentation. Variations of these deportments, including a louder voice, silence, a softer voice, and coherent gestures, can enrich the content of the summation.

Movement by the advocate can provide a different view. The display of an exhibit or visual aid allows counsel to move to a different spot in the court or hearing room. The advocate’s stance and movement should be consistent with what is being said and orchestrated so as not to be distracting.

3.11.3 Maintain Appropriate Distance

The advocate must maintain an appropriate distance from the decision maker. The layout of the room may determine what is available or optimum. Three to nine feet is a general guide; however, it may be effective at times to be closer or further away.

3.11.4 Use Transitions

Summation is more effective if the advocate employs transitions during the presentation. These give the listener a break, indicate new topics, and help maintain interest. Movement, gestures, voice inflection, and exhibits can be used as transitions.

3.11.5 Employ a Natural Personal Style

An advocate should reflect personal abilities without overly copying and mimicking another advocate’s style. With thorough practice, the advocates can learn to use their own effective approaches.

3.11.6 Observe the Decision Maker Reactions

An advocate needs to watch facial expressions, body language, and eye contact of the decision maker during summation for signs of restlessness or confusion, and adjust the presentation accordingly. If the fact finder appears not to understand or accept some comment, counsel can rephrase to make it clearer.

3.11.7 Notes and Outlines

It will be necessary for an advocate to rely on notes or an outline during summation to ensure all important points have been covered. A script that is read will appear stilted and unnatural. Counsel needs to practice the summation so that it is presented persuasively.

3.11.8 Exhibits and Visual Aids

Visual aids and illustrative exhibits can ensure that vital points are not missed. An outline or portions of the summation can be shown in a computer generated presentation or printed display. LLMs can generate element-by-element matrices tied to transcript cites and exhibits, compute damages models, and might output court-ready demonstratives for summation. The fact finder will likely expect that demonstrative exhibits will be used. The decision maker may be more likely to pay attention, follow along, and remember critical parts of a closing that are presented visually as well as verbally.

L. Complex Cases

3.12 Summation in Complex Cases

The challenge is to present and summarize substantial amounts of information in an understandable and persuasive way. Time limitations, the factual and legal issues involved, and the length of trial will affect the scope of the presentation. The organization can be structured around several major segments which comprise the entire opening. The creative use of exhibits, illustrative aids, and other technological displays can make the summation focused and compelling.

M. What Cannot Be Done

3.13 Reasonable Limitations

The advocate is generally allowed wide latitude in discussing the evidence and presenting theories during summation. Objections may be asserted to prevent improper statements and conclusions.

3.13.1 Not Argue New Matters

An advocate may not introduce or argue new facts or issues during summation beyond the scope of the admitted evidence and applicable law. The closing is limited to what actually happened in the trial or hearing.

3.13.2 Misstate the Evidence

Misstating evidence is improper. It is appropriate to present differing explanations of evidence since different stories have been presented by the parties. An objection can be asserted if an opponent mischaracterizes testimonial or documentary evidence.

3.13.3 Improper Legal Argument

It is wrong to misstate the law. An advocate cannot argue an incorrect interpretation of the law applicable to the case.

3.13.4 Improper Personal Argument

Counsel cannot state a personal viewpoint or make personal remarks about the facts, credibility of witnesses, expert opinions, or other evidence.

3.13.5 Improper “Golden Rule” Argument

The “Golden Rule” argument is a statement asking the decision makers to put themselves in the place of a party or witness, and is unacceptable.

3.13.6 Improper Appeal to Passion

Statements are unsuitable if they serve only to inflame passion, emotions, and sentiments.

3.13.7 Appeal to Biases and Prejudice

It is a violation of the fundamental precepts of our system to appeal to the prejudices or biases of the decision maker regarding race, gender, religion or other protected classifications, as the basis for a decision.

3.13.8 Other Improper Comments

Comments regarding the financial situation, insurance coverage, or litigation history of a party are usually inappropriate. The failure of a party to introduce a piece of evidence is improper if the evidence is unavailable or inadmissible.

3.13.9 Improper References

All jurisdictions recognize evidentiary privileges, but they differ regarding whether the opponent may suggest that the decision maker draw adverse inferences from the invocation of such a privilege. In criminal cases, no adverse inference may be made from a defendant’s assertion of the privilege against compelled self-incrimination.

3.13.10 Scope of Rebuttal Argument

During rebuttal, the advocate may only make statements rebutting new matter introduced by the opponent. Arguments should not be repeated in rebuttal.

3.13.11 What Prosecutors Cannot Do

In criminal cases, the prosecutor must be careful not to overstep the bounds of fair argument and constitutional limitations. Prosecutors may be bound by a higher standard than defense counsel. While acting vigorously for the state, the prosecutor must be fair both to the justice system and the defendant.

3.13.12 Can There Be Interruptions?

Objections must have a legal basis and be properly timed, and may not be made merely to interrupt or disturb the opposing advocate.

3.13.13 Admonishing the Advocate

If the advocate continues making improper comments after an objection has been sustained, the judge, arbitrator, or hearing officer can admonish counsel.

3.13.14 No Whining

During final argument, it is improper for the advocate to whine, grovel, or throw a tantrum.

N. Problems to Avoid DURING SUMMATION

3.14 Avoiding Obvious Troubles

Counsel should shun the following:

 A weak beginning

 Confusing structure or disorganized story

 Non-existent facts

 Not being candid

 Being inconsistent with opening statements

 Failing to use helpful exhibits

 Referring to inadmissible evidence

 Sounding like an overly partisan advocate

 Poor delivery

So, plan, prepare, and practice until you have a winning summation.