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32 Spring 2015 The Mississippi Lawyer A. Yes sir. Q. And you are sure that the impact was hard and that your vehicle was severely damaged A. Yes I am positive about that. Now the plaintiff is locked down about the force of the impact and the damage to his vehicle. During pre-trial preparation the defense attorney can decide which photo- graphs of the vehicle to use to show the jury that the impact was not as severe as the plaintiff now claims. At trial the defense attorney can walk the plaintiff through the above testimony making sure to stress that the impact was very hard and verify that that is why the plaintiff is hurt. The defense attorney should also admit into evidence the original color photo- graphs of the severely damaged vehicle. When the time comes for closing argu- ment defense counsel should use enlarged color blow ups of the photographs to show the minimal damage. This will effectively convey the message that the plaintiff is exaggerating his injuries. 2. Jury Instructions Jury instructions can be intimidating at first both to the attorneys and to the jurors. Attorneys should not be intimidat- ed because there are numerous books with pattern jury instructions to use as a model for almost any type of case.8 However it is important to make sure that the jury instructions in your model book are cor- rect because practitioners have found that they are sometimes wrong Also a great deal of research has been conducted regarding the psychology of jurors regarding jury instructions. The basic findings of the social science behind jury instructions have concluded the fol- lowing a. Use common words no legalese whenever possible. b. Use simple sentences avoid sub- ordinate clauses. c. Avoid double negatives. d. Avoid abstract instructions tailor instructions to the case. e. Avoid unnecessary instructions9 Using these guidelines will help you draft better jury instructions which in turn will allow you to connect the instructions with your closing argument. 3. The Keys To An Effective Closing Argument Every attorney will develop their own style in trial and in closing argument. However most effective closing argu- ments have several basic characteristics. The beginning of your closing argument should communicate three things your theme why the jury should find in your favor and your enthusiasm about your case. Another often overlooked key to effective closing argument is to resist the temptation of simply summarizing all the evidence. There will always be portions of the trial that you will want to highlight for the jury. However jurors are more likely to find in your favor when they feel like they are not being told the answer or given a slanted version of the testimony. Rather jurors like to believe that they have looked at the evidence and come to the fairest conclusion. 4. Broad Latitude Is Allowed In Closing Argument Attorneys are afforded broad latitude in closing argument. The seminal case in Mississippi on the boundaries of closing argument is Nelms Blum Co. v. Fink 131 So. 817 820-21 Miss. 1930. Counsel necessarily has and must have to serve his function and office a wide field of discretion. He may comment upon any facts intro- duced in evidence. He may draw whatever deductions seem to him proper from these facts so long as he does not use violent and abusive language and even in many cases invectives may be justified and even called for.... Counsel is not required to be logical in argument he is not required to draw sound conclusions or to have a perfect argument meas- ured by logical and rhetorical rules his function is to draw conclusions and inference from evidence on behalf of his client in whatever way he deems proper so long as he does not become abusive and go outside the confines of the record.... Counsel may draw upon literature history science religion and phi- losophy for material for his argu- ment. He may navigate all rivers of modern literature or sail the seas of ancient learning he may explore all the shores of thought and experi- ence.... However the Court in Nelms Blum Co. went on to say that the sky was not the limit during closing argument. He cannot however state facts which are not in evidence and which the court does not judicially know in aid of his evi- dence. Neither can he appeal to the preju- dices of men by injecting prejudices not contained in some source of the evidence. Thus attorneys should feel free to be col- orful and use analogies from areas other than law. But they should tie those refer- ences to the facts of the case at hand. Talking to The Jury Opening Statements and Closing Arguments Peacemaker Mediation Arbitration LLC peacemakerLLC.com An attorney for forty years. Former Navy JAG J.D. With Distinction top 10 of class law review published. Ready to fill all your mediation arbitration and hearing officer needs. No charge for travel time. Weekend dates available. See httpwww.peacemakerLLC.com Preston Bo Rideout