Seems like there's a lot an attorney can't do during closing arguments.

He can't state his personal opinion about what happened.

He can't talk about how wealthy the defendant (the person you sued) is.

He can't talk about how poor you'll be if the jury doesn't give you a verdict in your favor.

Before I get to three MORE things an attorney CAN'T talk about, let's go over a few things that closing arguments are designed to do.

At the end of your trial, before the judge tells the jury what the law is and what questions they're going to answer, the lawyers will give closing arguments.

These are ARGUMENTS.

These are discussions the attorneys will have with the jury.

It's a one-way discussion.

The attorney stands before the jury of six members of the community.

People who have agreed to be 'fair and impartial'.

By the end of the trial, most jurors will have already made up their mind about who should win and who should lose.

Your attorney tries to convince the jury that your version of the events are more like true than not true.

He will use passion.

He will use logic.

He will use persuasion.

He will use pieces of evidence that support his points.

He will use parts of testimony that is favorable to you.

He will argue that all of this testimony and evidence allows them, in fact requires them, to give you a verdict in your favor.

He will ask them to reach the conclusion that you are right.

He will ask them to answer the specific jury questionairre in your favor.


"Yes," he will declare that to be the only answer.


Again, he will declare this is the only logical conclusion they can reach.

The answer must be "Yes," he will exclaim.


The attorney will appeal to the jury's sense of fairness.

He will appeal to their common sense.

He will use analogies.

He will get them to undertand that money will not physically make you whole, but that's all our system of justice allows us to achieve.

Ok, so let's now focus on three MORE arguments an attorney CANNOT make during closing arguments in New York...

  1. Jurors cannot step into the shoes of the injured patient

  2. Can't refer to jurors by name and

  3. Attorney can't claim personal knowledge of the facts

The first is what lawyers call the 'Golden Rule' of trial practice.

It would be great if we could argue to the jury "Ladies and gentlemen, put yourselves in my client's shoes. Imagine how you would feel. Imagine the injustice you would go through. Imagine the pain. Imagine the disability. Imagine the humiliation as my client endures it every day..."

Every attorney who represents an injured victim would LOVE to make this type of argument during closing arguments.

The problem is that we just can't do that.

It's not 'fair' to the defense.

It's not 'equitable' to the defense.

It's not 'just'.

Ah...but every trial lawyer dreams of being able to do just that.

Since we can't, we have to come up with creative ways to get the jury to understand our clients' injuries and disabilities.

The second argument we cannot make is to say to juror #1 "Hey Mr. Gonzalez, you know what I'm talking about, right?"

Or to juror #4 "Mrs. Martin, can you believe the crap that the defense is arguing in this case?"

Referring to a juror by name just isn't done.

Let's talk now about the third item I have listed in what an attorney cannot say during closing arguments.

Imagine your attorney saying this...

"Folks, I've been a patient at this hospital. I know personally the staff sucks. I know because they treated me like crap. I saw first hand what idiots they are. I know from talking to nurses and doctors at the hospital that the treatment in this case was awful. I was there. I went to the hospital. I spoke to the nurse caring for this patient. She didn't know what she was doing. The doctor in training was wet behind the ears and needed someone to wipe his behind. This is who was caring for my client."


That would NEVER fly during closing arguments.

An attorney cannot claim personal knowledge of the facts.

He wasn't there.

He didn't participate.

He didn't see what went on.

He didn't hear the conversations.

If he did, he'd be a witness.

He'd have been questioned by the opposing attorneys.

He'd have a conflict representing you effectively.

He's no longer an unbiased advocate.

Instead, he's a participant in the events that happened.

He'd have knowledge of what occurred.

But during closing arguments, an attorney who has no personal knowledge of the facts cannot try and convince the jury that he does.

The attorney wants to increase his credibility with the jury by claiming personal knowledge of what happened.

Then he can show that the defense witnesses are lying.

Sorry, that's an argument that would not be permissible in New York.

To learn what happens if the defense lawyer insults me during closing arguments at trial, I invite you to watch the quick video below...

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer