National Institute for Trial Advocacy

Temple University School of LawApr 03, 2019
Opening Statement V. Argument - Where is the Line? Part Two of Two
Apr 03, 2019

Written by Professor Jules Epstein, Director of Advocacy Programs at Temple Beasley School of Law

To review last week's topic, please take a look at part one here.

Collective Wisdom:

As the final step in trying to adduce the 'argument principles(s)' for an opening statement, this author turned to some of the best trial advocacy teachers in this country. Each was asked to explain “how you define this or what rule(s) you provide to your students and when you train lawyers.”

The responses varied, and included related issues such as how to focus on persuasion and what to do when the opponent veers into argument during opening (the “whether and when do I object” concern). Their responses are set forth here:

Liz Lippy (Associate Director of the Trial Advocacy Program at the American University Washington College of Law)

Below are a list of guidelines/reasons I would make an objection to an opening as argumentative:

Rhetorical questions – I find that when an opening statement includes rhetorical questions it is often argumentative. Rhetorical questions are a tool better saved for closing arguments and often if used in an opening are used in an argumentative fashion.

Deep dives into the law or jury instructions – to the extent an opening statement goes into great lengths describing the law (other than standard burden of proof stuff which is in most openings), many times an opening statement misstates the law or frames the law in a way that argues their theory of the case.

Language that goes above and beyond forecasting the evidence – semantics can be tricky and are a huge part of advocacy, but there are times semantics in an opening are more like closing argument and therefore argumentative. An extreme example, for illustrative purposes, would be something akin to telling the jury that the defendant is a liar/cannot be trusted or telling the jury how to judge credibility of a witness.

The “no brainers” – if an advocate in opening states a personal opinion regarding the case; misstatement of facts

Criminal v. Civil cases – a prosecutor is much more confined to what is proper in an opening statement. Although not an argumentative objection, certainly a prosecutor cannot discuss what evidence the defense will present or the absence of defense evidence.

Abbe Smith (Director of the Criminal Defense and Prisoner Advocacy Clinic, Co-Director of the E. Barrett Prettyman Fellowship Program, and Professor of Law at Georgetown University):

A strong narrative is better than an argument in opening – that is, your case theory told as a compelling story – partly because there is nothing in the record to argue about yet. That said, I do believe in inserting what could easily be called “argument” somewhere in the middle of the opening – a section that defuses what the government has said by telling the factfinder the things they should be on the lookout for that will demonstrate the accused is not guilty.

Grant Rost (Senior Instructor of Lawyering Skills, Liberty University School of Law):

I tend to think of the difference between a proper opening versus one that is argumentative as the difference between description and prescription. The art of description is not telling someone what to think—whether I tell them with the economy of a single word or in a targeted sentence—but is putting together facts in a way that makes the unspoken conclusion sensible and easy to reach. Prescription is any word or phrase or series of phrases where I’m telling the jury what they ought to do or think. Artful description is the nonverbalized “ought.” When artfully describing the defendant’s inattention, it’s utterly unnecessary to call him careless. (Or, to say it as though I’m translating the use of that word to the jury: “By using that word, it means you ought to think his conduct careless.”) The carelessness is evident to the jurors when they supply their powers of reason to the facts I’ve described. Argument is when I am supplying some reasoning along with the facts. Thus, prescription, whether it’s artful or not, isn’t coy about suggesting what jurors ought to think or do.

I think students know this for the most part. It’s the execution in the moment that causes the problems. I find that students are most likely to turn to prescription once they think they have no more story to tell or they think there are no other characters in the story to follow around as they narrate events to the jury. In practice, they most often think the story has ended once they show that their client or victim was wounded, bilked, killed, accused, or arrested. When the description has ended, they devolve into prescription and start arguing about the conduct, the facts, or even the law. I’m convinced that it comes so naturally to them because this desire to over-conclude bubbles like a spring from every advocate’s heart. Therefore, when teaching new advocates I tell them to find the narrators’ voices and continue the descriptive story right up to their final, thundering thought.

David Erickson (Director of the Trial Advocacy Program, Chicago-Kent College of Law):

[Liz Lippy] said it all and said it very well. The only thing I would add, Trial lawyers still argue in opening and will continue… because judges let them ….and it sounds more convincing.

Sara Jacobson (Director of Trial Advocacy Programs, Temple Beasley School of Law):

A few things I tell students to avoid include:

  • Rhetorical questions

  • Language that tells the jury what conclusion to reach about the evidence (often, although not always spotted by the use of the word ‘because’)

  • Vouching isn’t allowed in any speech but it is also argumentative

  • A speech that frames the case around a personal view of a broad social issue

Gerald Powell (Practice Court Faculty Chair and Abner v. McCall Professor of Evidence, Baylor Law School):

I teach students arguing can be either drawing conclusions or pounding the table while saying something objectively non-argumentative.

Justin Bernstein (Director of A. Barry Cappello Program in Trial Advocacy, UCLA Law School):

I tell my students that the question of whether an opening is argumentative is less objective and less precise than most objection questions. For example, hearsay debates often have a correct answer. But with openings, it’s more of whether the presentation feels argumentative to the presiding judge. That’s usually a combination of language and delivery.

I also tell them that most judges err on the side of overruling argumentative objections in opening.

Adam Shlahet (Director of the Brendan Moore Trial Advocacy Center, Fordham Law School):

What makes this so confusing to students is that if you make a statement of facts and/or your theory of what happened in a passionate, confident way, it may sound more argumentative than an actual argument made weakly. That is operating under the definition of an argument being an explanation of how or why certain facts should lead to certain conclusions.

It’s important to point out that argument in opening statement is a bad idea not just because it is objectionable and improper. It is a bad idea because it is not effective. For an argument to work, first, the trier of fact must trust that the facts are what you say they are. Second, they must consider the person making the argument to be a credible person. The problem is that during the opening statement, the advocate has not earned any credibility yet. At that point, the advocate is just some lawyer trying to win a case, which naturally translates to suspicion and distrust (the opposite of credibility). So a “hard sell” at this point in the game can actually turn off a juror and taint an otherwise compelling argument.

Tell the story persuasively, earn credibility and then cash in on that credibility with smart arguments. Change the order of that sequence and you’re just another bad salesman.

Charles Rose (Director, Center for Excellence in Advocacy; Professor of Excellence in Trial Advocacy, Stetson Law School):

The opening must be an argument, but the argument is made through the structure of the factual story that is told, and not necessarily the way in which it is delivered. You can make an extremely effective, argumentative, conclusory opening statement that is fine – when it focuses on the story that is told and the way it is told, and not on telling the jury what that story means. Let them decide what it means, our job is just to teach others to tell it in a way that the law allows for only one conclusion when you are done.

I tell my students that folks should feel like you’ve dropped the mike in the room at the conclusion of the OS, and the jury should be looking at the other side with some combination of “what have you got” or “why did you do that?”

Susan Poehls (Director of Trial Advocacy Programs, Loyola Law School, Los Angeles):

It’s important to earn your credibility with the jury, but I think a well told logical story can do that so long as you 1) don’t over-promise and under-deliver; and 2) make sure the table pounding is something the jurors can identify with and relate to.

I start by telling my students that if the statement you are making isn’t going to come out of a witness’ mouth, from a stipulation or out of a document, it is high risk for argument. I’m also not a big believer in burying every argument behind the words “the evidence will show.”

You really do want your opening to sound somewhat argumentative, but you do that by structure, ordering and juxtaposing facts in such a way that any conclusion other than the one you are suggesting would seem incredible and unbelievable.

Dan Tilly (Director of Advocacy Programs, Campbell University School of Law):

Jumping out of the gate with overt argument negatively impacts lawyer credibility. The jury just isn’t ready yet to be argued to on a case they know little about. Doing so screams that you are being paid and the least neutral person in the courtroom

To Charlie’s point, however, the jury is certainly prepared to begin making conclusions and drawing their own inferences. That’s what I try to encourage among advocates and lawyers alike. How we arrange the story or explain the evidence in a manner that is persuasive is enormously important because it allows the jurors to begin drawing the inferences. I want confirmation bias to set in early and in my favor.

Obvious impropriety that would raise mistrial concerns must be objected to or else the issue is waived. Those things are rare – but do occur. I use the Roger Clemens case to teach this point. The federal judge declared a mistrial during the government’s opening statements after an objection. The U.S. Attorney was playing a video in his opening that included hearsay statements directly implicating the defendant. The court had ruled the statements inadmissible in a pretrial in limine hearing under hearsay and Crawford. Rusty Hardin, defending Clemens, objected and moved for a mistrial given the severity of the violation (and the obvious conclusion that the jury would not be able to forget the damning testimony). These kinds of objections are clearly proper and must be made.

As to most others, I trust the jury and tend to let “argument” go. Moreover, I often let misstatements of the evidence go but I sure encourage lawyers to write them down to use in cross-examination and against the lawyer in closing argument. “Remember in opening statement when the Plaintiff’s lawyer promised you that _____” is damned effective.

Rafe Forman (Douglas Stripp Dean’s Distinguished Professor and Director of Advocacy, UMKC School of Law):

I do not believe the lawyer has the credibility to “overtly argue” in opening. The jury isn’t ready for that, they do not know who you are and they may judge you harshly as suggested by Tilly. I train (both in the educational sense and the literal sense, i.e. i run over them until they get it) students and lawyers to 1) gain credibility, 2) retain credibility and 3) suffer no credibility KILLS. This begins of course in voir dire, but opening is equally filled with opportunity.

My intent is not to debate. Rather, I offer the following: What if we imagine to ourselves that opening is our opportunity to gain credibility by showing the jury what they know is true, by not judging them, and by showing them how their existing truths may be used resolve our case? Remember the jurors are always the HERO in every trial story! Imagine that you are in possession of a part of a great treasure map. You have only a corner. But you have the corner where the “X” is marked. You need these jurors to be willing to find the treasure and use their common experiences and understanding to guide them, with your help. There is peril awaiting, and they know it, sense it and resist. Rather than arguing the justification for the risk, i.e. how valuable the treasure is, and how it will change their lives once found, and how you desire to help them achieve it, consider this approach instead. FACT:You don’t know what they value. Your third circle judgment of them is manipulation and is off putting energy. Rather than tell them things that are arguments as to why they should do this or that, perhaps we should explain that if they chose to go on this journey, there are a few things you would have them watch out for. Manipulation and judgment are strong third circle energies. So it is for criticism and unjustified argument. People, jurors specifically, are turned off, and repel against and often resist third circle energy.

Case in point: I will offer you the same fact, in first, third and finally second circle energy. You judge for yourself.

1) It would be wrong, terrible, unjust for you to find my client guilty when the prosecution has no evidence to prove his guilt. Please hold the Prosecution to their Burden Of Proof

2) At the end of this trial, my co-counsel will come back before you and ask you for a not guilty verdict because the state has no proof.

3) Guilt or Innocence is simply and entirely up to you. May I show you what things to watch for during the trial that prove innocence?

You judge for yourself. But then [give them five facts that compel the desired outcome].

Cary Bricker (Professor of Lawyering Skills Director of Mock Trial Program Co-Director of the Center for Advocacy and Dispute Resolution. University of the Pacific McGeorge School of Law):

If a witness will say it, an exhibit will show it or an expert will opine- (while being mindful not to engage in fact overload) you own these facts when creating theory focused stories. I agree wholeheartedly with so many of you that it’s presumptuous to overtly argue in opening- to tell the jury what the facts mean before they have heard from a single witness- and before you have established your bona fides – it’s both unpersuasive and can compromise your effectiveness as you compromise your credibility. Hard to shake off this loss of credibility so early in the game during the remainder of the trial.

Take the jury figuratively with you to the key places in the case as you engage in vivid story-telling so that the jury reaches the conclusion you want them to- not because you told them that conclusion but because the arrangement of facts did- and they feel like geniuses! ( E.g in a mugging, have the jury standing next to the complainant on the street as the robber is grabbing her purse through fact selection. Jury is staring into perp’s face along with complainant. Arrangement of facts, pace, phrasing, voice modulation, gesturing- w/o overt argument.)

The Take-Away

The collective wisdom contributors offer the best delineation of when an opening is argumentative. Drawing from their contributions, the line seems to be here:

  • Only use facts that will clearly be deemed admissible;

  • Avoid all reference to matters beyond the case at hand;

  • Don’t attack the opponent’s motive or integrity;

  • Leave it to the closing to address why you are correct; and

  • Avoid vouching for your own witnesses and overtly attacking your opponent’s.

Beyond this, don’t confuse the ban on argument with the goal and art of being persuasive. And persuasion can and should leave the jury with a sense of discovery and the confidence that you are letting them draw their own conclusion(s).

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