EFFECTIVE TRIAL ADVOCACY: OPENING ARGUMENT (YES!)

• DISTRICT COURT OF THE VIRGIN ISLANDS

• MID-YEAR CONFERENCE• JULY 11, 2014

• PROFESSOR STEPHEN A. SALTZBURG

Opening Statement is An Argument

• It is an Argument and Judges Who Tried Cases Know This• Nonetheless, Judges Expect that if They Ask, You Say Opening

Statement is What We Expect to Prove and then Argue as Much as the Law Permits

• It is Not Argumentative– “We’ll show you that the defendant acted like a vicious animal”

• But it is powerful• , “I will prove to you that the defendant stood over the victim, John

Jay, who lay unconscious on the ground, and the defendant took careful aim, considered carefully his actions, and shot Mr. Jay twice in the head with the premeditated intent to kill him.”

• Does it sound like the defendant acted like a vicious animal? – Yes, But You Did Not Say It

Openings are Harder than Closings

• You Open Before There is Any Evidence• The Jury Has Nothing on Which to Make

Up Its Mind But What You Say, How You Say it, and Whether You are Able to Bolster What You Say with Exhibits

• Openings are Intended to Persuade; To Turn a Neutral Juror Into a Committed Juror

• Closings are to Confirm

Open Strong

• No One Waits for Long to Begin to Make Up His/Her Mind– Law Students are Evidence of This– Drop/Add– Right Now in this Room Students Are Deciding

Whether They Like This Course• Afterwards, Principles of Denial and

Rationalization Kick In

• You Need to Open Strong If You Speak Second

• The Jurors Expect a Response• If You Think that the Jurors Will Wait Until

the Prosecutor or Plaintiff Finishes to Make Up Their Minds, You Will Open Too Late

Don’t Waive Opening

Conn. Ct. App. Judge Douglas S. Lavine, The persuasive power of understatement, National

Law Journal, August 30, 2010• “Studies have shown that people form

immediate, sometimes unconscious opinions about other people within seconds of meeting them. We size people up based on a wide array of factors—how they look, what they wear, the way they walk and talk, what they say and how they say it, to name just a few.”

Concerns

• No golden rule reference• No statement of personal beliefs; vouching• No references to inadmissible evidence• No “argument” re applicable law• May state “legal contentions”• Careful; Opening may constitute legal

admission and result in a directed verdict

Choice of Words

• I (or we) will prove• The evidence will show• There will be evidence to show• There will evidence from which you can

conclude• There will be evidence from which, I

submit, you can conclude

Words are Facilitators of Speech

• Say it Strongly• You Have Nothing to Lose• If You Say, “The Evidence Will Show” the

Jurors Hear that as “I Will Prove”• They are More Likely to Believe You Will

Prove it if You Say it Strongly I

Three General Approaches

• Chronological –Bad – Not An Argument

• Witness by Witness–Bad – Not An Argument

• One Central Theme–Only Way to Open

Nothing Can Stop You From Choosing The Most Persuasive Techniques

• You may combine story telling variations: chronological, parallel, reverse…

• You should avoid “witness by witness” summaries• Identify major elements and marshal details

to support each, weave in witnesses, weave in less strong points

• Begin and end strong• A clear theme lets you choose your organization

Prosecute Your Case

• All Successful Cases are Prosecuted• The Side with the Burden Should Proclaim It• The Other Side Should Assume the Burden and

Move Forward• Even in a Criminal Case, the Defense Can

Promise to Prove that the D is Not Guilty• The Burden Does Not Shift Because You Make a

Statement

Going First and Second• The Person Who Goes First Has the Advantage – Can

Address Everything 1st

– Remember that the Jury Must Hear the Explanation Before It Knows There is an Accusation

• The Person Who Goes Second Must Listen with Great Care and Use Omissions, Mistakes or Concessions by the One Who Goes First

• The Order of the Second Opening Should Never Be Dictated by the Order of the First Opening

THE KEY: THE RIGHT THEME

• The Most Important Task of the Advocate is Choosing the Right Theme

• To Choose the Theme, You Must Account for all Facts• What are the Facts?• They Are What the Jury Will Believe at the End!• You Must Decide What at the Beginning What They Will

Believe, Not What You Hope or Wish They Will Believe• This is Also the Most Difficult Task for an Advocate• Requires Cold, Hard Judgment and RELIANCE ON THE

RULES AND LAWS OF PROBABILITY

4 Ways of Dealing with Bad Stuff

• Lie about it – suicidal• Ignore it – open yourself to charge of

half-truths• Admit it – identifies it as a weakness• Make it fit your theme as much as

possible

• Don’t Tell the Jury that an Opening is Not Evidence

• Don’t Waste Time Describing How the Trial Will Proceed

• If You are Concerned that the Jury May not Understand the Trial Process, Ask the Judge to Instruct Jurors Before You Open

Do Not Wind-Up

Don’t Read Your Opening

• Boring• Does Not Establish Credibility• Lose Eye Contact• Judge May Restrict Your Time or Tell

You not to Open on a Point

Some Dos

• Notes are Fine• Where to Stand in the Courtroom?• Use Pauses, Steps and Voice for

Emphasis• Use Exhibits if Permitted

Exhibits Span the SpectrumExhibits and demonstrative aids—• Video, power point, visual presenter, digital

documents• Active media--flip chart, black board, etc.• Actual objects--heart valve, implants, pills, road

signs, prosthesis, contracts, receipts, etc.• Models, replicas (legal pads and paper cups--

Franklin Stainless Steel v. Marlo Transport)• Photos, blow-ups of photos, documents, etc.• Hard copy for jurors to hold

Civil and Criminal Cases are Different

• Criminal Case: Pros May Not Refer to What the Defense Will Be– Pros Bears the Burden of Persuasion– 5th Amend Issues Abound

• Civil Case: Pleadings are Admissions, Either Side May Refer to What the Other Has Claimed– Don’t Sound Defensive, However– Make Your Affirmative Case

Some Tips

• Be full and complete• Hold back nothing essential• Not promise what you cannot deliver• Embrace your claims without reservation• Disclose and explain the bad and the ugly

…inoculate and preempt • Be honest and objective –no overreaching• Use common sense, rules and laws of probability

More Tips

• Look ALL jurors in the eye• Appear and be organized• Use various media• Smile appropriately–imparts confidence even in a

case with serious and tragic facts• Body movement, gestures, position can all be used

to be interesting• Be prepared for the unexpected! What? How?

Some Themes

• A broken promise• Asleep at the wheel• ____ would not be here if________• Broken trust• A mothers pleas were ignored• A baby cannot speak but must be listened to• The short answer to why are we here

Testing the Opening • Was it persuasive?• Can you identify the theme?• Can you identify and articulate the theory?• Can you identify a particular order and sequence?• Does the language used create visual

images of the scene and parties?• Do you believe it?• Do you believe it is compelling?• Were exhibits/media used meaningfully?