from 100 days through opening statement: course 3: opening statement cynthia mcguinn miles cooper...
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From 100 days through From 100 days through Opening Statement:Opening Statement:
Course 3: Opening Course 3: Opening StatementStatement
Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● [email protected]
How to Be Prepared to Prepare How to Be Prepared to Prepare Your Opening StatementYour Opening StatementTab in Trial Binder
◦Ideas for themes Plaintiff case Defendant case
◦Key documents Plaintiff Defendant
◦Key witness testimony Plaintiff Defendant
Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● [email protected]
Legal Principles Governing Legal Principles Governing Opening StatementsOpening Statements
Purpose: To prepare the minds of the jury to follow the evidence and to more readily discern its materiality, force and effect through an overview of the issues involved in a case and the facts each party expects the evidence will prove. P. v. Arnold (1926) 199 Cal. 471, 486.
Matter of Right: California Code of Civil Procedure § 607 (jury trial); 631.7 (bench trial)
Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● [email protected]
Court Rules & Procedures Court Rules & Procedures Time limits
“No man’s (or no women’s) land”
Mechanics of technology
Availability of podium, chalkboard, etc
Propriety of statements of law (discretionary)
Propriety of referring to pleadings (discretionary)
Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● [email protected]
Order of PresentationOrder of PresentationPossible mini-opening before voir dire
Standard order: Plaintiff goes first
Defendant may follow or reserve
Court has discretion to change order for “special reasons” (CCP § 607)◦Example: Sole issue is an affirmative defense
Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● [email protected]
Scope of Opening StatementScope of Opening StatementDescription of facts & supporting evidence
◦Duty◦Breach◦Causation◦Damages
Theory of case
Brief statements of law (discretionary)
References to pleadings (discretionary)
Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● [email protected]
Opening Statement TechniquesOpening Statement Techniques
Use of demonstratives (e.g., PowerPoint)
Use “Rules of the Road”
Reference Burden of Proof
Start thematically—tie to evidence
Factual persuasion aka “aggressive advocacy”
Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● [email protected]
Aggressive Advocacy is Proper…Aggressive Advocacy is Proper…
Trial attorneys permitted considerable latitude: ◦“Aggressive advocacy is not only proper but desirable. Our
jurisprudence is built upon a firm belief in the adversary system…. Juries, characteristically composed of average men and women, may be assumed able to withstand substantial blandishments without surrendering their ability to reason soberly and fairly. Recognizing these factors, reviewing courts are not, and should not be, overly eager to reverse for conduct which is merely moderately captious.”
◦ Love v. Wolf (1964) 226 Cal.App.2d 378, 393.
Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● [email protected]
……Flagrant Misconduct Isn’tFlagrant Misconduct Isn’t
But there is a limit:
◦ “The misconduct here was intentional, blatant, and continuous from opening statement, throughout the trial, to closing argument.”
Love v. Wolf (1964) 226 Cal.App.2d 378, 393.
Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● [email protected]
Example: Example: Love v. WolfLove v. Wolf After Parke-Davis “started to use this stuff all over the
country came reports of people dying from it, people suffering from aplastic anemia and dying.”
Chloromycetin should never have been on the market and that “what I have talked about now so far is evidence of absolute flagrant, wanton, negligence of failure to have any regard at all for humanity and the safety of people using this stuff.”
“And all this time they knew that what it [chloromycetin] caused was nothing-it was only death. That is what it was causing, death.”
Unfounded allegations that Parke-Davis had bribed the FDA to get approval
Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● [email protected]
The price of crossing the line:The price of crossing the line:
“Misconduct of plaintiff's trial counsel, egregious beyond any in our experience or that related in any reported case brought to our attention has resulted in an unfair trial, a miscarriage of justice and requires us to reverse the judgment.”
Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● [email protected]
Prof. Lubet’s “Argument” TestsProf. Lubet’s “Argument” Tests
Witness Test: If a witness will be able to testify to the “facts,” then opening is permissible.
Verification Test: Can the assertion be verified?
Link Test: Do “facts” have independent evidentiary value or must counsel provide “rhetorical link in probative chain?”
Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● [email protected]
Opening Statement StructureOpening Statement Structure
Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● [email protected]
Allocating time: Liability (negligence/causation) vs. Damages Ratio
Importance of outlining key areas:
IntroductionThe Rules & their application here
Description of harms and losses What I am doing in Opening
The Event
Impact of event to date (e.g.)What doctors found* Relevant anatomy* Course of treatment*Condition today*
*weave in general damages; compare & contrast witness testimony
Impact of event on plaintiff in the futureFuture Medical Care*Vocational impact*
*weave in general damages compare & contrast witness testimony
Discussion of dollar damages-special and general
Challenges to Legal Challenges to Legal Sufficiency Sufficiency Nonsuit: Challenge to plaintiff’s case
M. for Directed Verdict: Challenge to defendant’s case
Standard: “[I]t is clear that counsel has undertaken to state all of the facts which he expects to prove, and it is plainly evident that the facts thus to be proved will not constitute a cause of action or a defense, as the case may be.”
Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● [email protected]
Curing Legal Insufficiency Curing Legal Insufficiency Counsel normally permitted to reopen
statement and cure defects:
Reasonable opportunity should be given to set up a cause of action if there is one.
Permission to enlarge opening statement primarily in discretion of trial court
Discretion to be exercised liberally so plaintiff with a cause of action can present it to jury even when counsel initially failed to state in detail necessary facts proposed to proven.
Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● [email protected]
ReferencesReferences
Levine, Opening Statement (TRG 2005)
David Ball on Damages (2d ed. 2005)
Keenan & Ball, Reptile (2009)
AAJ Rules of the Road seminar
Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● [email protected]