Close of Evidence; Closing Arguments; Jury Instructions; Jury Deliberations

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Closing Argument
The closing argument (also called the "closing statement") is the time when the attorneys may forcefully argue their sides of the case to the jury. The closing statement occurs after the close of evidence.

Jury Instructions:
Instructions given by the judge to the jury as to what the relevant law is, how the jury should go about applying the applicable law to the facts of the case and which parties have the burden to prove which issues.

A trial that becomes invalid because of a procedural error in the conducting of the trial or because the jurors fail to agree on a verdict.

Hung Jury:
A jury that must be dismissed without a verdict because it could not reach a decision in the case.

Close of Evidence

After the plaintiff’s case-in-chief, the defendant’s case-in-chief, the plaintiffs rebuttal and the defendant’s surrebuttal, the parties may, once again, move for judgment as a matter of law. The evidence, of course, is viewed in the light most favorable to the non-movant.

At this point, the parties may also move for summary judgment on the ground that no genuine issue of material fact exists and the movant is thus entitled to judgment as a matter of law. This motion differs from a straight motion for summary judgment that was discussed earlier in the course. A motion for summary judgment, which is usually made much earlier in the case, asserts that the other party has not alleged or presented evidence that is sufficient to maintain its action or defense. A motion for a judgment as a matter of law, on the other hand, alleges that, even though the other party has alleged and presented evidence that would support its case, no reasonable jury could possibly find for that party; and so the judge should decide the case here and now, without submitting it to the jury. This motion can be granted even if the other party has brought in evidence to establish all the elements of its claim or defense.

Closing Arguments

As explained above, the closing argument is the time when the parties may forcefully argue their cases. The parties may summarize the evidence, point out discrepancies, and extensively argue how the law applies in their favor. Rather than tell a story, the closing argument is just that – an argument. The closing argument is the party’s final attempt to persuade the jury that the opposing party is liable or that the party itself is not liable.

Some attorneys choose to use the exhibits admitted into evidence to support their closing arguments. Some will point to charts as they argue, others will read testimony from the record to reinforce certain portions of their arguments. These tools are often useful during closing arguments, as they give the jury visuals on which to focus and can help the jurors form a complete picture of the arguments in their minds.

Each closing argument usually lasts 20-60 minutes. Some jurisdictions limit how long the closing may be, and some jurisdictions allow some of that time to be reserved for later. The plaintiff, having the burden of proof, usually has the right to give her closing argument first, followed by the defendant’s closing argument. In many jurisdictions, the plaintiff may use all of the allotted time, or the plaintiff may reserve time (e.g., ten minutes) to use after the defendant’s closing argument. The reserved time may be viewed as a rebuttal and gives the plaintiff (or the party with the burden of proof) the last word.

Jury Instructions

After closing arguments, the jury is instructed, usually by the judge, as to the relevant, controlling law in the jurisdiction. If, for example, the case is a negligence action, the judge will explain to the jury the elements of negligence and how each element must be proven by the plaintiff for the defendant to be liable. If the case is a breach of contract action, the judge will instruct the jury on the elements of a valid contract and what is considered a breach thereof. See Girden v. Sandals Intern., 262 F.3d 195, 203 (2d Cir. 2001):

“The purpose of jury instructions is to give the jury a clear and concise statement of the law applicable to the facts of the case.”

Some jurisdictions allow the jury to receive copies of the jury instructions so that, during deliberations, the jurors may refer to them and review the relevant law. Other jurisdictions do not allow this practice. Still other jurisdictions leave it to the judge’s discretion whether to give the jury the jury instructions on paper.

Jury instructions are cultivated from applicable current case and statutory law. Most jurisdictions have published jury instructions so that attorneys and judges do not have to start from scratch. Most judges have compiled their own standard jury instructions for each type of action, to be amended using the applicable facts of each case. Attorneys have a right to object to certain language in the jury instructions and to ask for particular jury instructions to be included. The attorneys will usually meet with the judge at the close of the evidence to discuss the jury instructions. See U.S. v. Birbal, 62 F.3d 456, 459 n.1 (2d Cir. 1995):

“Many, if not most, district judges in this circuit routinely provide counsel with written copies of their jury instructions in advance of reading them to the jury, thereby giving counsel adequate opportunity to register their objections. In order that errors may be corrected, where possible, before they infect the jury, we strongly encourage those judges who do not already do so to follow this practice.”

Jury Deliberation and Jury Verdict

After the jury instructions are read and/or given to the jury, the jury will retire to the jury room to deliberate. During deliberations, the jury will discuss the evidence, examine exhibits, review testimony, etc. Once the jury has reached a verdict, the foreperson (the juror designated to speak for the jury) will inform the bailiff, marshal, or other designated court personnel that the jury is ready to return its verdict. At this point, the jury is instructed to complete verdict forms and, if the jury finds that the plaintiff is entitled to damages, to complete the forms that designate the amount of damages for which the defendant is liable.

Depending on the jurisdiction and upon the type of case, the jury’s decision must be a simple majority, unanimous or something in between (e.g., a vote of three-fourths of the jury members).

If, upon deliberating for a long period of time, the jury is unable to reach a decision, the judge will be notified. Often, the judge will instruct the jurors to work together, listen to the various opinions, and try hard to reach a verdict. If, after such an instruction, the jury is still unable to reach a verdict, a mistrial will be declared. A jury that cannot reach a verdict is sometimes referred to as a hung jury. The jury will then be excused, and a retrial will be scheduled, either to be decided by a judge or by an entirely new jury.

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