OPENING STATEMENTS AND CLOSING ARGUMENTS

EFFECTIVE ADVOCACY AND

SPECIAL ISSUES

 

 

EVIDENCE ON PARADE

THE LOUISIANA JUDICIAL COLLEGE

AND

THE LOUISIANA STATE BAR ASSOCIATION

NEW ORLEANS

 

 

 

 

 

JUDGE, FIRST JUDICIAL DISTRICT COURT

 

 

 

 

 

    The importance of an opening statement cannot be underestimated.  If you are unprepared, incoherent, cold, aloof, or if you appear disinterested, it can be devastating to your case.

 

    It is your opportunity to tell the jury about the case.  Many jurors establish a tendency toward the case at that point.  It should never be waived as it then appears that you don’t care.  However, be careful and precise in what you say – the credibility that you have established during your voir dire continues to be at stake!

 

 

    1.  Prepare an outline or checklist from which to refer but do not read;

 

    2.  Stand before a podium and microphone;

 

    3.  To the extent possible, tell a story;

 

    4.  Be coherent, clear and maintain continuity;

 

    5.  Be confident and positive.  Consider the phrase “the evidence will show”; not     “we anticipate the evidence will show”.  Be confident, yet humble;

 

    6.  Explain and define any terminology which will necessarily be a part of your     case;

 

    7.  Slight repetition may be appropriate.  Remember, you have been working on     the case for a considerable time and you have intimate knowledge of the facts and     evidence.  This is the jury’s first knowledge of it;

 

    8.  Capitalize on the credibility that you have hopefully established during voir     dire; eg, “I’ve done my very best to outline what I believe the case will be, but     keep in mind you should rely on the evidence presented in court…”

 

    9.  If the facts and evidence are even slightly complex, use powerpoint after     obtaining permission from the court;

 

    10. While remaining within the legal parameters of an opening statement (not     opening argument) try to arouse the jurors’ emotions;

    

    11. All cases have weak points – expose at least the obvious weak points of your     case so that they are minimized.  To that extent, “steal the thunder” of the     opposing counsel;

 

    12. Never use legalese;

 

    13. be assertive, forceful; yet be courteous to opposing counsel and, of course, the     judge (but never patronize either).

 

 

    1.  statement, not argument;

 

    2.  plaintiff/D.A. covering the evidence;

 

 

 

    In opening statements of a capital murder trial the prosecutor stated:

 

You can lack the integrity and lack the courage and you cannot do what justice will demand your duty is, to tell this killer that you and other people like you who do what you did here get the death sentence; or, or, six months later they’ll say, “He’d be in jail”.  Who is Mr. Smith?

 

    The defendant then made a motion for mistrial, arguing that the prosecutor’s entire opening statement was nothing more than an appeal to passion, prejudice and sympathy and was an effort to make the jurors feel guilty if they did not vote to convict.  The motion was denied.

 

    Considering the admonition provided by the court following the contemporaneous defense objection, the Court of Appeal concluded that the prosecutor’s comments did not rise to the level of preventing a fair trial.  “The trial judge’s admonitions cured any potential prejudice.”

    

 

    During the opening statements of this wrongful death jury trial, plaintiff counsel stated:

 

He [Walter Graves] died of malignant mesothelioma caused by asbestos exposure.  At the close of the case on behalf of Walter, I will ask you to use your power as jurors in this case to hold Olin Corporation responsible for his death.

 

There was no contemporaneous objection to these remarks by defendant’s attorney.

 

    Besides the issue of lack of contemporaneous objection, the court found no prejudice in this statement.  Furthermore, the jury instructions clearly advised that “statements and arguments made by the attorneys are not evidence…”

 

* * *

 

To listen to then ADA Scott Crichton’s 1990 opening statement in a capital murder case go the judgescottcrichton.com and click on tab located on left side “Code Opening”.

 

 

 

 

 

    More likely than not, the jurors have at least an inclination as to what their verdict will be in the ordinary case.  However, in the “close case” argument can well make the difference.

 

    Generally, wide latitude is accorded to counsel during closing arguments.  As a lawyer for ten years, this writer has defended an objection during closing by stating, “your honor, these are closing arguments and the law affords latitude.  As a judge, this writer has overruled objections on the same basis.

 

 

    1.  Prepare exhibits prior to closing arguments – don’t fumble;

 

    2.  Use a blackboard, “flip” sheets marked during each witness’ testimony, or     power point;

 

    3.  Be prepared (again, with an outline) forceful, confident;

 

    4.  Tell the jurors what you want – A good example is to enlarge the jury verdict     form and take the jurors through it;

 

    5.  Plaintiff counsel may briefly explain why he gets rebuttal, that he has the     burden of proof; defense counsel may want to advise that he will not have the     opportunity to talk again.  “The law does not allow me to respond…”  “I would if     I could but I can’t…”;

 

    6.  Summarize the facts and your theory while integrating it with the applicable     law; you may read applicable jury instruction.  “I anticipate the judge will read     this (applicable) law…But, don’t quote any case law or any rule of law not in     the jury charge;

 

    7.  Capture and maintain their attention.  Move with continuity through the     evidence using key phrases that are helpful to your case;

 

    8.  Use appropriate demonstrations, if necessary;

 

    9.  The defense counsel should hammer the fact that plaintiff’s counsel has the     burden of proof and irrespective of natural sympathy they may be inclined to feel     – that justice requires the verdict you have suggested.  As appropriate, be stirring,     passionate, forceful and positive;

 

    10. Contemporaneously object to your opponent’s closing only if it is necessary     from a strategic or legal perspective;

 

    11. Don’t express personal opinion;

 

    12. Don’t let your zeal result in inflammatory comments;

    

    13. Don’t go outside the record;

 

    14. Don’t be too lengthy;

 

    15. Don’t substitute jurors in the case as if they were a party or participant     (Golden Rule argument);

    

    16. Don’t overstate your case or disregard evidence; remember your credibility     remains at stake.

 

    [See Appendix – C.M. Thomas (printed with authorization)]

 

    

 

    Court noted the test to determine whether statement is prejudicial or inflammatory is if it is unreasonable or unfair "in the eyes of the law."

 

 

 

 

 

 

              Court should not allow counsel to argue inappropriate law.

 

 

    Example of argument deemed too zealous on issue of damage:  “Insurance company was cruel, heartless, shoddy, shameful and disgusting in the way it treated the widow, forcing her to trial”.

 

 

    Plaintiff’s inflammatory argument equating defendant’s conduct with criminality and suggesting that the jury would be executioners if they returned a low verdict was error.

 

 

    No error in refusing plaintiff’s request to demonstrate 60-second time span.  The jury is familiar with that, and the trial court has discretion.

 

 

 

THE END