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Monthly Theme: Opening Statements Part Three

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Distilling Effective Rhetoric for Persuasive Opening Statements

Written by NITA guest blogger Sara Jacobson1

Opening statement is the first time a lawyer gets to lay their case out to the jury. It is the first impression you make, and the first impression the jury takes about your case. You want the jury to believe you, to understand you, to be moved by you such that when the introduction of evidence begins as the witnesses are called, they understand what the case is about and are, at least, amenable to your client’s perspective on the facts. In short, you want to persuade.

A good opening statement sets the context of the story of the case, such that when jurors receive pieces of evidence during the trial, they fit those bits of information as into the framework you built in your opening. But how best to persuade? Aristotle spoke of three types of persuasive appeal, and these three remain instructive to anyone preparing to open. We examine each in turn. They are:

    • Logos: persuasion through the logic of the argument.
    • Ethos: persuasion through the integrity of the person arguing.
    • Pathos: persuasion through the emotional connection of the argument, but at its most effective when the person arguing is as emotional in delivery as the argument itself.

First consider logos, the attempt to persuade through logic. Many traditional notions of opening statement, like speech structure, fit here. By giving the jury a logical structure to follow, you will better hold and keep their attention. The constructs of storytelling, always critical to effective opening statements, fit here as well. A story has distinct elements: exposition, an inciting incident, rising action, the turning point or climax of the story, falling action, and ultimately, resolution.2 Imagined then through the lens of opening statement, that structure might look like this:

  • EXPOSITION: brief introduction to background of events, scene, and parties;
  • INCITING INCIDENT: identification of the issues at stake and their relation to the people in the
    case;
  • RISING ACTION: narration of main action or conflict;
  • CLIMAX: turning point of the issue at question;
  • FALLING ACTION: discussion of any weaknesses; and
  • RESOLUTION: wrap-up of the speech and request for the verdict you’ll want at the end of the trial.3

Note that your brief introduction or exposition section should encapsulate the notion of primacy- that starting strong matters- and means that your introduction should include both a clear case theory and a theme that resonates.

Choice of case theory and theme also resonate with ethos, or persuasion through the ethical integrity of the speaker. You want the jurors to believe you and therefor to believe your side of the case. Ethos includes both speaker and speech, though, as for the jury to best believe you, your case theory must also have integrity. That means it needs an internally consistent narrative that also conforms to community notions of common sense. Put simply, the jurors need to be able to relate to it, which means you must consider the community to whom you are opening when shaping your message. Your theme is the value you associate your case theory with, and it, too, must work well within the integrity
of your approach in an opening. Of course, the notion of integrity means more than your message. It means you must comport yourself, both in opening and across the trial, as a person of good faith, hiding nothing, and embracing your case’s weaknesses as best you can, rather than ignoring them. Which leaves with perhaps the most important piece of the persuasive opening, the pathos or emotion in it. Jurors are motivated by the desire to do justice, to do good. In that quest, jurors can be moved to act by their emotions. To make an effective emotional appeal first, look for the humanity in your case, for the people driving the action. An opening with lasting impact centers around the people affected by the transaction, not on the pieces of paper themselves.4 Second, remember that effective delivery matters when it comes to emotional persuasion. Effective storytelling in an opening allows the lawyer to speak from the heart. For the jury to feel that impact, the lawyer should: deliver with passion, without relying on notes; ensure that the tone of their delivery matches the emotion in language of the speech; vary the emotion in the speech so it doesn’t stay in one place too long, and finally remember to use their whole selves including movement, gestures, eye contact, and pauses, to build drama into the
story.

Use principles of logos to guide your structure. Use ethos to ensure that both your case theory and you speak with credible integrity. Use pathos to build emotional impact and effective delivery into your opening. Each will help you build the context of the narrative for the jurors, such that by the end of your opening they will be moved to fit the facts into the strong framework you built for them.


1 Director of Trial Advocacy Programs and Associate Professor, Temple University, Beasley School of Law
2 Ann Aubrey Hanson, 7-Step “Freytag’s Pyramid,” The Writing Itch, August 21, 2014. Available at: https://writingitch.com/2014/08/21/7-step-freytags-pyramid/
3 A similar version of this organization is found in Gerry Powell’s excellent piece on openings. Gerald R. Powell, Opening Statements: The Art of Storytelling, 31 Stetson L.Rev. 89, at 96-97 (2001). 4 Id.

 

 

Monthly Theme: Opening Statements Part Two

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Objections in Openings

Written by NITA guest blogger Sara Jacobson1

The purpose of opening statements is to lay out your theory of the case and to preview what you believe the evidence will be, but rules still apply.2 While not codified in the formal Federal Rules of Evidence, there are limits to what lawyers can do in speeches. As with everything, you need to know where the boundaries are before you push them. Here are some of the things lawyers cannot do in opening statements.

    • ARGUE
      The main difference between opening statement and closing argument, is that in closing, lawyers are permitted to argue; whereas, in openings they cannot.3

      • THE OBJECTION: What makes something argument? If the lawyer is explaining what conclusions the jury should draw from facts or talking about what the evidence means, its impermissible argument in opening. Rhetorical questions are argumentative by their nature and should be avoided in opening. Comments on the viability of the approach taken by opposing counsel, qualifies as argument too.
      • THE RESPONSE: The most common response is to explain to the jury that everything the lawyer is talking about in opening is what they believe the evidence will be, and to thereafter use more of ‘the evidence will show’ phrasing than one generally would.
    • VOUCH
      Vouching comes in two common forms and is prohibited in both opening statements and closing arguments. An attorney is vouching when they offer an opinion on the ultimate guilt or liability at issue, or when they comment on the credibility of a witness.

      • THE OBJECTION: There are a number of cases across jurisdictions that note the prohibition against lawyers giving their opinion on the ultimate issue or on credibility.4 Both types of vouching were addressed by the Supreme Court in 1985 in U.S. v. Young.5 Young dealt with vouching by both sides in closing argument in a prosecution for fraud. The defense argued that “the [prosecution’s] statements have been made to poison your minds unfairly,” hinted that the prosecution withheld evidence, and added – while pointing at the prosecution table – “there’s not a person in this courtroom, including those sitting at this table who think Billy Young intended to defraud Apco.”6 Defense counsel also went on to claim that the defendant was “the only one … that has acted with honor and with integrity.”7 In rebuttal, the prosecutor responded, saying, “(w)ell, I was sitting there and I think he was …. If we are allowed to give our personal impressions since it was asked of me …. I don’t know what you call that, I call it fraud.”8 The prosecutor repeated the fraud claim multiple times during the closing. The Court rebuked both sides, citing ABA Standard for Criminal Justice 3-5.8(b)9 and noting, “(t)he kind of advocacy shown by this record has no place in the administration of justice and should neither be permitted nor rewarded.”10 Ultimately, although disproving of counsels’ conduct, the court found that the prosecutor’s comments were a fair, invited response and did not find sufficient plain error, absent contemporaneous objection, to overturn the conviction.
      • THE RESPONSE: If closing, if the argument is re-framed and couched either as what common sense tells the jury or as what the evidence has shown, vouching can be avoided. Take for example US v. Morris, where the 5th Circuit which drew that very distinction, finding that “an attorney properly may state, ‘I believe that the evidence has shown the defendant’s guilt,’ but… may not state, ‘I believe that the defendant is guilty.’ ”11 There are no good ways to re-frame or re-fit vouching in opening statements.

There are other, obvious, things that lawyers cannot do in opening, which are also prohibited in closing argument. Lawyers cannot ask the jury to put themselves in the shoes of either party to the case, violating what is sometimes referred to as the ‘golden rule,’ and they cannot misstate either the evidence or the law. While in opening, presumably lawyers would not be misstating the evidence so much as approaching it aspirationally, but know that that approach, too has its consequences. Come closing argument one’s opponent can call out any failure to deliver on the promises of the opening. Finally, prosecutors cannot imply in any way in opening that a criminal defendant will put on a case or might testify, as that violates the defendant’s 5th Amendment right to remain silent.12

Objections don’t frequently occur in opening statement, but is important to know where the lines lie, if nothing else, than to be able to call out your opponent if they break the rules.


1 Sara Jacobson is the Director of Trial Advocacy Programs and Associate Professor, Temple University, Beasley School of Law
2 U.S. v. Zielie, 734 F.2d 1447 (11th Cir. 1984).
3 Id. And see U.S. v. Hershenow, 680 F.2d 847 (1st Cir. 1982). “… (A) court is always free to stop argument if it occurs….”
4 See: U.S. v. Jones¸468 F.3d 704 (10th Cir. 2006); Byrd v. Collins, 209 F.3d 486 (6th Cir. 2000); U.S. v. Thornton, 197 F.3d 241 (7th Cir. 1999); U.S. v. Dispoz-O-Plastics, Inc., 172 F.3d 275 (3rd Cir. 1999); U.S. v. Loayza, 107 F.3d 257 257 (4th Cir. 1997).
5 U.S. v. Young, 470 U.S. 1 (1985).
6 Young at 4-5.
7 Id, at 5.
8 Id, at 5.
9 “[i]t is unprofessional conduct for the prosecutor to express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.” ABA Standards for Criminal Justice 3-5.8(b)(2d ed. 1980.
10 Young at 9.
11 U.S. v. Morris, 568 F.Supp. 396, 402 (5th Cir. 1978)(internal citations omitted).
12 Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965).

 

Monthly Theme: Opening Statements Part One

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Opening Statements: How to Tell a Persuasive Story

Written by NITA guest blogger and Program Director Michael Johnson

“It was the best of times, it was the worst of times…”

“The magician’s underwear has just been found in a cardboard suitcase  floating in a stagnant pond on the outskirts of Miami.”

“First the Colors.

Then the humans.

That’s usually how I see things.

Or at least how I try.

 

* * * HERE IS A SMALL FACT * * *

You are going to die.

 

What is common to these quotes?

Whether it is from classic fiction (Charles Dickens, A Tale of Two Cities (1859)), a cult novel of a generation (Tom Robbins, Another Roadside Attraction (1971)), or a more contemporary novel (Markus Zusak, The Book Thief (2005)), each of these lines is the first lines of the book–the beginning of the story.

Each is deep with meaning, intrigue, and invitation.

The meaning is not evident, and won’t be clear without delving into the story much deeper.

The intrigue is exactly that–what could this story possibly be for that opening sequence to be true?  How is it possible that it was both the “best of times” and the “worst of times” at the same time?

The invitation is for the reader, listener, to want to know, hear, more:  to want to become engrossed in the story.  And, in the example from The Book Thief, duplicated here as closely as possible from the printed version of the book, the invitation is not only auditory, but visual as well.

The challenge for a Opening Statement is exactly the same.  How do we tell a story, with a compelling start, that invites and intrigues the audience to delve more deeply into the meaning? Our audience is, of course, the jury, and our primary means of communication with them is the spoken word rather than the written word.  The art of telling a story orally differs in the method of delivery but shares much of the principles of a well written and read story.

In my view, and the view of many others, the Opening Statement is the single most significant part of any trial.  It is your opportunity to engage the audience and provide them with a context in which to consider the evidence, the players, and the compelling reason why it is just and right that your side should prevail.  Studies that have examined how jurors decide cases have consistently supported the crucial importance of the Opening Statement.  The studies indicate that there is a strong correlation between a juror’s ultimate conclusion and that juror initial impression.  Put another way, juror’s frequently view the evidence and the closing arguments to validate their sense of the what is the right and just result  Starting strong with a good compelling invitation and a well structured story is a winning combination.

During the NITA webcast on July 12, we will explore these ideas in more detail.  Our discussion will delve into the concepts of primacy and recency, viewing matters from a point of view, how much detail the content of the story should contain, the organization of the story, developing and using thematic statements, and since we are telling a story to a jury in a court of law, the legal context of the story.  We will grapple with how to be persuasive without crossing the line into prohibited argument.  And, very importantly, we will explore the method and manner of delivery, and the importance of being mutli-dimensional.

 

Monthly Theme: Hearsay Part Two

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Direct, Hearsay, and [Proper] Bolstering

Written by NITA guest blogger Professor Jules Epstein

It is a fundamental tenet that a witness has to present a ‘fresh’ version of her story, and may not be asked or permitted to say “well, here is what I told my friends.”   It is not what the jury came to hear; and if coupled with an in-court version is condemned as “improper bolstering [, which] occurs when an out-of-court statement is offered solely to duplicate or corroborate trial testimony.”  State v. Campbell, 254 S.W.3d 203, 205 (Mo. Ct. App. 2008).

But this statement of law is actually incorrect.  Many out-of-court statements may be used to duplicate trial testimony – as long as they have independent hearsay admissibility.

Let’s start with Rule 803, which permits the hearsay of anyone.  And “anyone” includes the testifying witness.  That is apparent from the definition:  “’Hearsay’ means a statement that…the declarant does not make while testifying at the current trial or hearing; and a party offers in evidence.” Fed.R.Evid. 803.  Nowhere does the Rule say, or even imply, that the declarant and the testifying witness must be different people.  But see Brisbon v. United States, 894 A.2d 1121, 1128 (D.C. 2006)(questioning whether a criminal defendant may testify to his own alleged excited utterance).

A witness repeating her own hearsay is not atypical.  A rape complainant may testify to the assault and then read the jury her excited utterance text message that also details the crime.  See, e.g., State v. Young, 2016-Ohio-7477 (Ct. App.).  The same is true with a present sense impression, a statement made for medical diagnosis and treatment, or a contemporaneous entry into the declarant’s own business record.

What is the power of this?  Repetition, which breeds believability.  Consider this example:

Q:      Where were you when the accident occurred?

A:        Right on the corner.

Q:     And what did you see?

A:     This big car, it was red, ran the light, hit the child and drove off.

Q:     Where you able to see the license plate?

A:      Yes, it was XDS123

Q:      What’s the first thing you did?

A:      I had my phone open, as I was about to text my mom, so I typed down the license.

Q:        Please read and show us what you typed.

A:     XDS123

Q:        What’s the very next thing you did?

A:      I was blown away, I dialed 911 and screamed what happened?

Q:      I am going to play a tape [911 call].  “Oh my god, hit and run, red car, XDS123.”  Was that your voice?

A:        Yes.

Q:     And is that what happened?

A:        Yes.

This repetition of out-of-court assertions may also occur if the statement is admissible under the 807 ‘catch-all’ residual hearsay exception.

There is a second way prior statements are admissible on direct examination – when they are consistent with the witness’ live testimony and rebut a claim of recent fabrication or corrupt motive made in the opposing party’s opening statement.  The proponent of the witness need not defer the use of a prior consistent statement until after cross-examination – the ‘impeachment’ has already occurred.  See, e.g., State v. Campbell, 254 S.W.3d 203, 205 (Mo. Ct. App. 2008)(attack in opening statement allows use of prior consistent statement under 801(d)(1)(B)).

There is little an opponent can do.  The independent admissibility of each hearsay statement warrants its use, precluding a bolstering objection.  All that remain are objections under Rules 403 and 611 that the repetition is cumulative and unnecessary, but given the presumed reliability of each hearsay exception, these arguments will be difficult to make until much damage is done.

[Professor Jules Epstein is the Director of Advocacy Programs at Temple Beasley School of Law in Philadelphia, PA.]

 

 

 

 

Hearsay Monthly Blog Theme: Part One

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The Business Records Exception to Hearsay and the Admissibility of Underlying Scientific Evidence Contained in the Record

written by NITA guest bloggers Marina Tous Clots and Michael J. Dale – article originally published to The Legal Advocate on March 9, 2016

Everyone is familiar with the business records exception to hearsay contained in the Federal Rules of Evidence (FRE) and in corresponding state rules of evidence. And everyone knows that not everything contained in the business record comes into evidence pursuant to that exception. The most obvious exception to the business record exception is hearsay within the business record. However, for the hearsay within the document to come into evidence, the statement itself must be relevant, and then there must be a separate exception to hearsay or a non-hearsay purpose for the underlying statement within the business record.

But what if the business record itself or the record within the record contains scientific information? For example, suppose in a tort, employment, or child welfare case, a party wishes to put into evidence scientific tests where somebody’s substance abuse is at issue or to put into evidence a business record that contains within it a scientific test. Suppose the test is a hair follicle or a urinalysis test.

This blog post discusses why the scientific information may pass the business records exception yet may still be subject to other evidentiary concerns like relevance and probative weight.

Step One
The evidentiary starting point is FRE 801(c), which defines hearsay as “a statement that: 1) the declarant does not make while testifying at the current trial or hearing; and 2) a party offers in evidence to prove the truth of the matter asserted in the statement.”

Under this definition, there is no room for doubt that scientific tests introduced to prove or disprove someone’s use of drugs fall within the definition of hearsay.

Step Two

The next and equally obvious point of evidentiary reference is the business record exception to hearsay. FRE 803(6) permits the introduction of business records, including scientific facts, regardless of whether the declarant is available as a witness. The elements of this exception, as we know, are:

  • the record was made and kept in the course of regularly conducted business activity;
  • the record is one that is routinely made and kept in the business’s usual practice;
  • the record was made at or near the time of the event that it records;
  • the record was made by a person with knowledge or from information transmitted by a person with knowledge; and
  • the proponent does not show a lack of trustworthiness in relation to the source of the information or the method of preparation.

All these conditions are shown by the testimony of a qualified witness or a certification that complies with FRE 902(11). Assuming that the proponent of the scientific tests can prove all of these elements, the business record exception will be met and the tests will overcome a hearsay objection.

However, even if the documents fall within the business record exception, the entire document will not necessarily be admitted into evidence. Again, as we know, business records oftentimes describe both the personal knowledge of employees and things told to employees by third parties.

Step Three
The third level of analysis occurs in situations where an out-of-court statement that falls within the business record exception contains another out-of-court declaration from a person other than the one who wrote the purported evidence. This is what we commonly refer to as hearsay within the business record or hearsay within hearsay. An example of hearsay within the business record would be a hair follicle or urinalysis test taken by an independent drug-testing agency and relied upon by a doctor when drafting her medical report.

FRE 805 states that hearsay within the business record is not excluded from evidence if each part of the combined statements conforms with an exception to the rule against hearsay. This means the tests must satisfy an independent hearsay exception or non-hearsay test and they must be found to be independently relevant.

Relevance and Probative Weight
To illustrate this matter, it is useful to take a closer look at what the results of our example—hair follicle or urinalysis tests—tell us. These tests analyze organic samples for traces of drugs. Depending on the tissue or fluid used, the tests can determine whether there are existing traces of drugs for a specified period of time. In the case of urinalysis, the tests show the use of drugs for a period of time prior to the taking of the test, depending on the drug. For hair follicle testing, it is generally accepted to be longer, between six to twelve months of prior drug use. However, nothing on the face of the test explains any of this. The business record exception neither explains the relevance of the test nor whether it is accurate

Thus, the relevance problem is twofold: 1) What does the test show? In other words, what is its relevance? and 2) Was the test properly administered? If so, are the results accurate?

Independent Relevancy
FRE 401 provides that “[e]vidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.”

The issue here is that generally, nothing on the face of drug test explains its significance, or what it proves. Therefore, one could think that there could be a potential objection regarding the relevance of the test.

However, it is generally accepted that FRE 401 is an evidentiary starting point and that there are very few things that are kept out by this rule. Even if nothing on the face of the test explains exactly what the results mean, courts generally accept them into evidence so that their significance can be explained at a later stage.

Once we have established that the underlying scientific tests within the record would be deemed independently relevant, the results would only show that during the period of time covered by the test, the person had taken drugs. The results do not specifically indicate the amount or frequency in which the drugs were taken. Nor do they show that the test was properly administered.

Probative Value: The Significance and Accuracy of the Results
The last and perhaps most significant issue is this: even if the underlying scientific tests eventually get admitted into evidence, their significance and accuracy can still be challenged. Thus, a qualified witness should testify on direct examination as to the proper administration of the test and the test’s meaning and accuracy. There are, in turn, at least two obvious ways in which to attack the underlying scientific evidence: 1) deposing the person who carried out the tests or a qualified witness to show inadequacies in the way the tests were carried out, and 2) offering an expert witness’s testimony to challenge the findings introduced on direct examination.

Conclusion
An exhibit may only be admitted into evidence after a full evidentiary foundation is established. Oftentimes we are faced with business records that contain underlying scientific evidence. In the case of hair follicle or urinalysis tests, nothing on the face of the test explains the relevance of the test nor whether it is accurate. In those instances, the question arises as to whether those underlying scientific tests are admissible into evidence. The answer is that the tests must independently be found to be relevant and then they must satisfy an independent hearsay exception or non-hearsay test. If the tests satisfy these requirements, they will come into evidence. Once the tests are admitted into evidence, they can still by attacked by deposing the qualified witness or by offering an expert witness’s testimony to challenge the accuracy of the results.

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Marina Tous Clots is a Spanish attorney, a graduate of the University of Barcelona, and a dual-degree law student at Nova Southeastern University in Fort Lauderdale, Florida. She is a research assistant for Professor Michael J. Dale. She can be reached at m.tousclots@gmail.com.

Michael J. Dale has been a member of the faculty at Nova Southeastern University Shepard Broad College of Law since 1985, teaching courses in family and juvenile law, and in the family and juvenile clinic. Professor Dale teaches at NITA programs in both public and in-house settings. In 2009, he received the Robert Oliphant Award from NITA for his service to the organization. An active litigator, he has been a consultant to federal and state agencies on civil rights issues and to law firms on litigation matters. He can be reached at dalem@nova.edu.

NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system.

NITA’s Goals are to:

  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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