The Legal Advocate

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What, no opening or closing? How can I win?

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Hugh Selby

Hugh Selby

A prohibition upon an opening statement, a closing address, or both is in the nature of things in some lower courts and administrative forums.  The public rationales include the saving of time, less ‘formality’, and custom.

Informally this can be restated as, ‘the decision maker would not be helped by lawyer babble’.

Lest any readers still labor under the illusion that opening statements are really important, let’s recall the 1993 National Law Journal report that found that jurors make up their minds about who wins and who loses at the following key times (I’ve collapsed and rounded the figures): much less than 10% when openings are done; 40% or more during the evidence phase; up to 25% during the closings and judge’s instructions; with 25% in jury deliberation (report cited by Joseph Anderson in his ‘Effective Courtroom Advocacy’,  2010, NITA).

What we need, and don’t have, is a comparable survey of judges, magistrates and administrative judges to get a broad-brush picture of when they find themselves ‘making up their minds’.  To those who say, ‘Always when the parties have finished’ I just smile. Since judges and jurors share with us the common trait of being ‘prejudiced, fallible humans’ I’ll assume until the rigorous survey of judges that the figures for judges and jurors won’t be much different.

Originating process is an opening, just a non-voiced one.  Whether it is a civil or criminal matter the legal claim with its attendant particulars tells the bench whether or not the moving party knows what they are about.  The quality of the pleaded defense grounds, along with agreed facts, and pre-trial evidentiary rulings tell the bench about the caliber of the defense side.

During both direct and cross the bench can be cued as to what is coming, both by the early setting of an agenda with the witness, and the use of transitions to signal that the advocate is moving to a new point.  Following this process does not adversely effect the cross – contrary to those who keep claiming, mantra-like, that the benefits of surprise are lost if the witness sees the abyss ahead.

From the 1993 report it seems clear that a closing is more significant than an opening to lay people. Clearly the skillful interweaving of fact and legal principles in a complex case must assist the bench too, reducing the time they must otherwise take to do it for themselves.

But in the many short cases where the law is settled and the contest is about facts – the messengers and the message- then the argument from the lawyer to the bench should be wrapped up in the development of the chief and the indoctrination that is part and parcel of good cross.

Finally, but not least, the prohibition is usually on spoken closing.  I’ve yet to see a bench that refuses to accept a written closing.  Just make sure that you deal not only with your case but with your opponent’s also.

Hugh Selby ©  2013

Hugh Selby has taught on a number of NITA courses.  Along with his NITA friends Chris Behan and Charlie Rose he runs , a blog with a focus for all those interested in improving the teaching and learning of advocacy skills, especially at law school.  He is based at the Australian National University,

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