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Monthly Theme: Opening Statements Part Four

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How I Learned to Love the Opening Statement

Written by NITA guest blogger, Senior Deputy District Attorney Amy Ferrin

I love Brussels sprouts.  Tossed with olive oil and seasoning.  Roasted until the edges are a bit crispy.  Fantastic.  Maybe I like them because they are so good for me, or maybe I truly enjoy their unusual flavor and texture; but I am the exception, not the rule.  Most people offered Brussels sprouts have the same reaction as my husband: “Mini death cabbages.  No thanks.”

Nearly every trial attorney, every member of a mock trial team, everyone who enjoys watching TV courtroom dramas delights in the “sexy” parts of the trial: cross-examination and closing argument.  And while those parts of the trial make for interesting watching, I want to talk about the part of trial advocacy that is passed over like Brussels sprouts at a cook-out: opening statement.

Very few attorneys jump at the chance to give an opening statement; most see it as a necessary but undesirable part of the trial.  Some of you reading may say, “That’s not true.  I’ve known for years that opening statement is one of the most important parts of the trial.”  You are correct.  That is what you were told and it is what you repeat aloud when important people are listening.  But let me ask you this: if you were trying a case with another attorney, and the division of labor is split such that one attorney gives opening statement and the other gives closing argument, which would you prefer to give?  How many of you would feel a tinge of disappointment upon being assigned to give the opening statement?  All good trial attorneys are told the value of opening statement, but very few of us actually internalize that value.

If you are in that camp—disappointed to be “left with” opening statement—I challenge you to rethink how you think about opening statement.

I’m not sure when I came to love opening statement.  I learned how to do it well on my law school’s mock trial team.  But learned to love doing it a few years into my first job as a trial attorney – when I was trying terribly difficult, but terribly worthy cases involving all types of child abuse.  All of the sudden, the opening statement wasn’t just a phase of the trial that needed to occur so we could move on to the “sexy” parts of the trial.  It was a phase in the trial that could truly make a difference.

Opening statement—for plaintiff’s counsel and prosecutors in particular—is your moment to take control of the trial.  You get to set the stage, to give the jury the framework they should use to listen to and analyze all the evidence they are about to hear, and—significantly—you have the invaluable opportunity to frame all of those “bad facts” exactly the way you want to.

This “framing of the story” is crucial for so many reasons.  First, it means you get to set the tone, the emotion for the trial.  If your client is sympathetic, you get to set that stage.  If your theory is about keeping emotion and sympathy out of the trial, you get to set that stage.  If your opponent’s theory (and facts) are full of holes, you get to conjure the jurors’ skepticism before a single witness is sworn.  Second, it makes the presentation of evidence easier.  If you have given the jury a roadmap for the story, it doesn’t matter if you have to call a witness (or five) out of the preferred order.  The jurors already know where to plug this witness into the framework you provided.  Finally, if the story you framed for the jury fits with the evidence and fits with their reason and common sense, you are going to win.  I know jurors are told repeatedly that they may not make a decision until all of the evidence is closed and they are deliberating with their fellow jurors.  But, I also know that most jurors reach a conclusion after opening statement, and are simply waiting to see if the evidence fulfills the framework you created for them.[1]

Finally, and I cannot emphasize this enough, an opening statement need not be flashy or catchy; it simply must tell a good story.  One that is easy to follow and easy to fill in the facts as the evidence is presented during trial.

I am a realist.  I don’t expect good trial attorneys to prefer opening statement to closing argument; closing argument is simply more fun.  But increased appreciation for the value of opening statement combined with enthusiasm to do it well will serve you well: I believe you will win more trials.

I challenge you to add some bacon and hot sauce to those Brussels sprouts – they may never be the best thing on your plate, but make sure they get some much-needed love.

 

[1] William L. Burke, Ronald Poulson &  Michael J. Brondino, Fact or Fiction: The Effect of the Opening Statement, 18 J. Contemp. L. 195, (1992) (80% of jurors decide the case for the party for whom they tentatively decided for after opening statement).

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.]

 

 

 

 

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