THE OKLAHOMA BAR JOURNAL 40 | NOVEMBER 2025 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. it’s practiced, the argument will organically evolve to counsel’s own style that will demonstrate counsel’s personal sincerity and keep the case real to the listener. STEP 9: BREAK IT DOWN TO A SINGLE-PAGE OUTLINE An advocate is very unlikely to read a closing argument to a jury and be able to persuade them. Persuasiveness comes from an attorney’s own passion, which derives from an attorney knowing every small detail of their case. As a final step in preparation, it is a worthy recommendation to have reduced the argument to a onepage outline that can be placed on the lectern. The outline will list no more than a word or two as a prompt. Seasoned trial lawyers will place a cup of water by the outline on the counsel table and, in the event they need to jog a memory, will simply pause, walk back to the counsel table, pick up the cup and take a sip with a quick glance at the outline. Another useful tool is that counsel may simply list those memory-jarring one- to two-word chapters on a PowerPoint presentation or on some “old school” butcher paper as demonstrative evidence to use during closing argument. Not only does it relieve counsel from looking down at any notes, but it also allows the jurors to more easily follow the argument. It is advisable to inform the court and opposing counsel of the intent to use such trial tools to avoid objections and interrupting the rhythm of the case.62 A POSTSCRIPT ON CLOSING ARGUMENTS “An advocate can be confronted with few more formidable tasks than to select his closing arguments.” – Robert H. Jackson, Chief Counsel for the United States at the Nuremberg Trial, 1946 It is in those final moments before a jury that the attorney must command the courtroom by seizing the attention of the jury and maintaining it. Every closing argument should be developed with the tools of storytelling. There are a myriad of techniques any lawyer can use to polish their performance in delivering a closing argument, but it should be a goal that counsel’s words are carried by the jurors into the deliberation room. While there is no substitute for the actual experience of a jury trial itself, all attorneys can study both the art and science of persuasion and public speaking to become that true raconteur. ABOUT THE AUTHOR Robert Don Gifford II is a solo practitioner in Oklahoma City and the 2025 Oklahoma Criminal Defense Lawyers Association Clarence Darrow Award winner for his advocacy in and out of the courtroom. ENDNOTES 1. Jerrold K. Footlick et al., “Lawyers on Trial,” Newsweek, Dec. 11, 1978, at 98, 99 (quoting New York lawyer Louis Nizer). 2. Michael S. Lief, H. Mitchell Caldwell and Ben Bycel, Ladies and Gentlemen of the Jury, p. 11-12 (June 2, 2000). 3. Frederick Levin, Mike Papantonio and Martin Levin, Closing Arguments – The Last Battle (June 1, 2003). 4. See generally, Gerry Spence, How to Argue and Win Every Time (Jan. 1, 1996). 5. Herring v. New York, 422 U.S. 853 (1975). 6. Id. at 858. 7. Henry v. State, 1913 OK CR 311, 10 Okla. Crim. 369, 136 P.982. 8. Sanders v. State, 2015 OK CR 11, ¶21, 358 P.3d 280, 286. 9. Finley v. State, 1981 OK CR 3, 623 P.2d 1031, 1035. 10. Tart v. State, 1981 OK CR 113, 634 P.2d 750, 751; Maxville v. State, 1981 OK CR 73, 629 P.2d 1279, 1283; Cobbs v. State, 1981 OK CR 60, 629 P.2d 368, 269. 11. McCauley v. State, 1988 OK CR 25, 750 P.2d 1124. 12. 12 Okla. Stat. 577. 13. Missouri Nat’l Life Ins. Co. v. Mead, 1964 OK 126, 393 P.2d 521, 524; Crescent Oil Co. v. Brumley, 1934 OK 593, 169 Okla. 462, 464, 37 P.2d 593, 595; Barnes v. Benham, 1904 OK 14, 13 Okla. 582, 75 P. 1130. 14. Robert Don Gifford, “Ethics and the Criminal Prosecutor: Guilt Shall Not Escape nor Innocents Shall Suffer,” OBJ (December 2005). 15. See Mark Hansen, “If the Claim Doesn’t Fit,” ABA Journal (June 1997). 16. Sharisse O’Carroll, “When Does Offensive Speech Become Professional Misconduct,” OBJ (October 1996); see also Robert Don Gifford, “Very Appealing Ethics,” OBJ (December 2006). 17. Satepeahtaw v. State, 1979 OK CR 47, 595 P.2d 805, 808. 18. Scott v. State, 1945 OK CR 48, 158 p.2d 728 (1979). 19. Hau v. State, 1925 OK CR 175, 30 Okla. Crim. 24, 28, 234 P. 649, 650. 20. Frick v. State, 1981 OK CR 108, 623 P.2d 738, 743. 21. This would also include improper comments at side bar. See Mayberry v. State, 1979 OK CR 134, 603 P.2d 1150. 22. Andrew v. White, 604 U.S. _(Jan. 21, 2025); Wilson v. State, 1998 OK CR 73, 983 P.2d 448. 23. See Rule 3.4, Fairness to Opposing Party and Counsel, Oklahoma Rules of Professional Conduct, 5 Okla. Stat., Ch. 1, App. 3-A. 24. See 12 Okla. Stat., Ch. 2, App., Rule 6 (“Counsel shall avoid repetition, shall not call jurors by their first names or indulge in other familiarities with individual jurors.”); McMahan v. State, 1960 OK CR 22, 354 P.2d 476, 484; Donaho v. State, 1935 OK CR 148, 58 Okla. Crim. 198, 203, 51 P.2d 348, 349. 25. See ABA Standard for Criminal Justice Standards 4-7.8 and commentary. 26. Omalza v. State, 1995 OK CR 80, 911 P.2d 286 (Okla. Crim. App. 1995); Newsted v. State, 1986 OK CR 82, 720 P.2d 734; see also M. Shane Henry, “Objection: ‘Shut Up!’” OBJ (2024); see also M. Shane Henry, “Slaying the Speaking Objection Dragon,” OBJ (2016). 27. Fitzgerald v. State, 91 Okla. Crim. 437, 441, 219 P.2d 1024, 1026 (1950); Sisk v. State, 487 P.2d 1003, 1004 (Okla. Crim. App. 1971); Payne v. State, 520 P.2d 694, 697 (Okla. Crim App. 1974). 28. Charm v. State, 1996 OK CR 40, 924 P.2d 754. 29. Jones v. State, 1980 OK CR 28, 554 P.2d 830, 834. 30. Luke 6:30 (“And as ye would that men should do to you, do ye also to them likewise”); see also Chicago, R.I. & Pac. R.R. v. American Airlines, Inc., 408 P.2d 789, 791 (Okla. 1965); Lime v. State, 479 P.2d 608, 609 (Okla. Crim. App. 1971); Hays v. State, 646 P.2d 1311. 31. Brewer v. State, 650 P.2d 54, 58 (Okla. Crim. App. 1982) (a prosecutor may not comment on increasing crime rates); Coker v. State, 26 Okla. Crim. 230 223 P. 711 (1924).
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