Opening/Closing Statements & Cross/Direct Statements

All opening statements have an _____. This your first chance to tell the jury the ____ of what the case is all about.

introduction; basics

The opening statement is where you get to tell your version of “_____”. You want to give the jury a coherent overview that arranges all the ____ and ___ together in an interesting and compelling manner.

what really happened; testimony; evidence

Define Themes

Psychological anchor which jurors use to distill and summarize a case

Your job is to have no more than ______ themes that summarize your position in an easy to remember way for openings.

1 or 2

Good themes are based on ______ we learn throughout life. The most used sources are the ___, _____, and _______.

universal truths; Bible, classic works of literature, popular sayings

Example of Opening Statement

May it please the court, counsel, members of the jury: This is a case of simple cold-blooded murder. You are here because on

Examples of Themes (2)

1) This is a case where a company refuses to do business the American Way

2) Everything that happened here happened because of pure and simple greed

You want easy-to-remember labels that refer to certain _____ that are important to the trial.

parties or events

Example of labels (2)

1) Plaintiff labels - the defendant was driving a two-ton truck, the crash/collision, shattered leg

2) Defendant labels - our delivery van, the accident/incident, the injury

The key to an effective opening statement is…

the ability to tell a story

There are four good points to a good story: (4)

1) focus on the people, make it emotional

2) be vivid when recreating the event

3) keep it simple, organized, and logical

4) use it to alert jurors to coming attractions

After the intro for openings, you will… (2)

1) describe the parties involved in a brief manor

• Ex. There are several names who you will hear throughout the trial…

2) Next you will describe the scene in detail

• Ex. The explosion happened at 3am on a cold…

The scene for openings is a very important ____ and should be described in a way that ________.

detail; paints a clear mental picture for the jury

The third paragraph afterwards is where you describe what happened (openings). Describe this.

This is where you create the picture or feel the act for the jury and is usually the main body of the opening; you may choose to bring up a weakness in your own case here to steal the opposing counsel’s thunder

• Ex. We believe the evidence will show (insert certain details); this is where you tell the narrative of what happened in vivid detail

The fourth thing, after body paragraph in openings, is to _____.

lay the basis of guilt

Example for laying the basis of guilt in openings

That ladies and gentlemen is what we expect the evidence will show… It will prove…

The last thing in openings is your _____.

conclusion

Example of conclusion in opening statement

Based on the evidence, we ask that you find the defendant (insert name) guilty of the crime (insert) as charged in this indictment.

Difference of Opening Statement Defense is… (2)

1) The opening begins with an introduction and then the defense will present the issue; you will present the main point of the case in the most advantageous light possible

• Ex. We ask that each and every one of you wait until all the facts have been laid before you, and then and only then should you reach a decision

2) Here you will not only present your issue, but then answer it and move on into a review of the facts that seem to make your case

In a criminal case, the prosecution has the…

burden of proof

The second paragraph for defense openings is… (2)

1) where you tell the story of what happened; your job as the defense attorney is to paint a sympathetic picture

2) you tell the story from the defendant’s perspective, and it should paint a picture for the jury as vivid as the prosecutions but sympathetic

The third paragraph for defense openings is…

where you would present the basis of non guilt

• Ex. in short, ladies and gentlemen, we expect the evidence will show, that under these circumstances, …

The fourth and last paragraph for defense openings is…

your conclusion

• Ex. I ask you, to withhold your judgement until all the facts have been heard…

For presenting opening/closing statements, you need to… (4)

1) Limit your movements to key points; excess movement can cause your jury to focus on something other than your story

2) Hand gestures are great to highlight points, but don’t go overboard; if everything is measured with movement what signals importance with this gesture??

3) Voice inflection is important, don’t let the jury become complacent; use it to alert them to key points and changes

4) Watch nervous ticks, hands, feet, ums and uhs

What does the checklist to writing opening/closing statements consist of? (7)

1) Introduction and parties involved

2) Scene, Instrumentality-equipment, vehicles, etc.

3) Date, time. weather, lighting

4) Issue and what happened exactly

5) Anticipating and/or refuting the opposing side

6) Basis of guilt/non guilt or liability/non liability

7) Conclusion and damages (civil cases only) i.e. money

During direct examination, experienced trial lawyers recognize that most trials are won on the ___ of their case in chief, not the ____ of the other sides case.

strengths; weaknesses

Direct examination should the jury’s opportunity to…

relive the scene from your side’s perspective

During direct examination, your witnesses should be the _____.

center of attention

When you create your direct examination questions, keep it ____. Don’t focus on unimportant ____. Spend your time bringing out your witnesses _____.

simple; testimony; main point and strength

How should you organize your direct examination questions? (5) (ISAXD)

1) Introduction

2) Scene description

3) Action description

4) Exhibits to highlight and repeat

5) Damages description (if this applies)

During direct examination, you must lay the foundation for your questions by establishing that the person on the stand has _______. Once this is done, you can move on to the actual events and results.

some direct bearings on the case

Direct questions must not be non-leading questions. True or False?

False; direct questions must be non-leading questions

For direct examinations, you want to set the ___ and let your witness ____. Make sure to use ______ to make the testimony _____.

scene; paint the picture; sensory language; vivid and real

During direct examination, when setting the scene, remember these points: (4)

1) Point of view

2) Pace

3) Sensory language

4) Present tense

On direct examination, have the ____ explain the situation/event. If the jury looks confused, then it is ___ job to get the explanation for them. Use ______ that strike right at the confusion.

witness; your; narrowly phrased questions

Describe Voluntary Weaknesses (2)

1) Conventional wisdom say volunteer a weakness before you are exposed

2) This is easier said than done, sometimes it makes tactical sense but it depends on:

• How damaging is it?

• Does your opponent know about it?

• Will it come out in the normal run of questioning?

• Can you bring it out gracefully?

• Is your opponent skilled enough to hurt you with it?

On direct exam, use ___ to highlight and summarize facts. Use them to highlight the _____ of your case and to explain important details. This is usually ___ the witness has completed the bulk of his/her testimony. This avoids breaking up dramatic testimony that could ___.

exhibits; central facts; after; sway the jury

You need to prepare a witness on direct examination for three things: (3)

1) Nonverbal communication (attire, demeanor)

2) Actual testimony

3) Potential problems

Aside from the basic three, on direct exam give your witness the following advice: (7)

1) Take your time when answering

2) Make sure you understand the question, if not say so

3) Use plain English

4) Keep answers simple, don’t volunteer facts

5) Don’t guess, if you don’t remember say so

6) Be polite and patient at all times

7) Tell the truth

What is the purpose of cross exam? (3)

1) Purpose is to win the war, not the battle

2) Score the points and save big shots for closing

3) Think like a boxer

What are the practical objectives of every cross exam? (4)

1) Advance your case theory

2) Gain concessions from witness

3) Impeach witness

4) Set up points for argument

Describe preparation for cross examination (4)

1) Think of final argument theory/theme and look at how each W’s testimony can be used to support theory

2) Ask yourself two basic questions

• If what W says is true, what else must be true?

• What must this W admit or be clearly shown lying, mistaken, or ridiculous?

3) Brainstorm with facts of case, apply the two basic questions, then put it on paper

4) Goal - gain concessions from W

• Bolsters our case theory, makes W our own

• Jurors remember concessions better

• Easier than impeachment

Describe Concessions

What must this W give up?

Examples of Concessions (4)

1) Basic facts like identity, date, location

2) Knowledge about D - like no criminal record

3) Less than complete knowledge of offense

4) Relationship or bias

Describe the Structure of Cross Exam (8)

1) Put it on paper - outline by topic

2) One fact per questions

3) Get concessions first

4) Then impeach and save best for last

5) Have a plan along with a story for jury to follow

6) Big heading for concessions, then list out what W must admit by topic

7) Use transitions:

• I’d like to talk about the knife

• Now let’s discuss your interview with D

8) Same plan for impeachment

Describe Impeachment (2)

1) Goal- to show W is not worthy of belief or trust

2) Preparation is key to impeachment

Describe Impeachment Weapons (3)

1) Must know rules for impeachment

2) Use impeachment checklist

3) Use approach points and arrange by topics

Know Impeachment Checklist: (9)

1) Improbability or Impossibility

2) Prior Inconsistent Statement

3) Prior Convictions

4) Lack of Personal Knowledge

5) Mental and Sensory Deficiencies

6) Bias and Interest

7) Contradiction

8) Prior Bad Acts Probative of Truthfulness

9) Character Witness Q’s - “Have you heard” and “Did you know”

Know Impeachment Checklist for Expert: (12)

1) Improbability or Impossibility

2) Prior Inconsistent Statement

3) Prior Convictions

4) Lack of Personal Knowledge

5) Mental and Sensory Deficiencies

6) Bias and Interest

7) Contradiction

8) Prior Bad Acts Probative of Truthfulness

9) Character Witness Q’s - “Have you heard” and “Did you know”

10) Qualifications

11) Basis for Opinion

12) Learned Treatises

Describe Impeachment w/Prior Inconsistent Statement (3)

1) Recommit the Witness to the inconsistent statement he just made in court

2) Isn’t it true that… (verbatim words from the prior inconsistent statement)

3) Must go through steps in 613

Describe Rule 613 Requirements (2)

1) Witness must be told

• contents of statement

• time and place of statement

• person to whom the statement was made

2) Witness must be given an opportunity to explain or deny

How to Impeach a Witness? (4C’s)

1) Confirm - reiterate their inaccurate statement; “Is it your testimony today that…”

2) Clue - “Do you remember giving a sworn statement? Were you under oath when you gave it? Your Honor, permission to approach the witness?”

3) Credit - “Do you recognize this? Is this your sworn statement? Is that your signature?”

4) Confront - “Read along with me while I read a portion of your statement…” (Read the conflicting portion); “Did I read that correctly?”

Describe How to Lead Into Your Impeachment (7)

1) Well, this isn’t the first time you’ve been asked about this, is it?

2) Back on X date, you knew about this case, didn’t you?

3) On X date, you were at the police station, weren’t you?

4) Build up circumstances of prior statement slowly (set the trap)

5) Approach the witness and show him the statement up close

6) That is your signature, isn’t it, Mr. X?

7) Finally, point at witness and say: “You said (say the exact words of the statement), didn’t you?)

Prior Inconsistent Statements are like ____ that can _____ in testimony. Put statement in front of witness. Take witness through every change and difference between ____.

daggers; poke holes; stories

Describe Controlling the Evasive Witness (3)

1) Knowing what we want from witness helps control W

2) Begin by getting them to agree to things they cannot deny

3) Short, choppy questions set the standard for control

For cross exams, use leading questions. True or False?

True

Describe leading questions on cross exam (6)

1) Do not be a journalist

• Asking who, what, when, and where gets you in trouble

2) Start asking Q’s only with:

• You did

• You were

• You went to

3) Ask only one simple Q at a time

4) Express idea in as few words as possible

5) Do not show off big vocabulary

6) Have patience

Describe the Form and Tone of Cross Exam Questions (4)

1) You must set the tone of exam

2) Use voice infections and mannerisms

3) Form of Q sets the tone (ex. did you see the car?)

4) Change it to anticipate answer (ex. you, of course, did not see the car, did you?)

What are the three types of questions on cross exam? (3)

1) Interrogatory Q - fact based and aim to receive detail

• What kind of car do you have?

2) Accusatory Q - suggestive of wrongdoing of credibility

• You have a Volvo, don’t you?

3) Anticipatory Q - address and weaken a point

• When you went over to D’s house, you drove your Volvo over there, right?

Describe the process of yanking the leash on cross exam (4)

1) Simply repeat the Q just asked

2) Ask if heard Q, then ask to repeat it

3) Provide the answer after W rambles with leading questions

4) Challenge W on rambling

• ex. “Now that you’ve had your say, let’s get back to my original Q”

Describe Manner for cross exam (4)

1) Be polite and fair but firm

2) Leave your ego at home

3) Rude and abrasive cross rarely works

4) Goal is to win case, not destroy W

What are primary things to remember for cross exam? (6)

1) Preparation, preparation, preparation

2) Get concessions first

3) Properly impeach

4) Tank the leash when necessary

5) Do not sweat the experts

6) Nobody likes a smart-alec

*Define Opening Statement

Your first chance to tell the jury the basics of what the case is about.

*Openings should tell a compelling ___ to give the jury a coherent overview.

story

*Define Burden of Proof

The defense often emphasizes this principle to remind jurors of who carries it

*Why is it sometimes tactically smart to mention a weakness in your case during opening?

Lessens the impact by addressing a weakness before opposing counsel can use it against you

*Name the four elements of an effective story in an opening statement (4)

1) Focus on people

2) Be vivid

3) Keep it simple/organized

4) Alert jurors to coming attractions

*Closings should “paint the picture” of what you say happened using…

Witnesses’ testimonies

*The plaintiff/prosecution must show how they proved each of…

the Legal Elements of the claim or charge

*A defense attorney’s best strategy in closing is to argue the other side failed to prove…

an essential element of the claim or charge

*When a fact you expected did not appear during direct or cross exam,…

then have the flexibility not to argue it, but adapt your closing without it

*The role of emotional themes in structuring a persuasive closing…

Powerful framework for the jury’s understanding and remembering your case

*On direct, your W (not you) should be the center of…

attention

*Direct exam questions must not be…

Leading questions

*Descriptive language is used in direct to make testimony feel ____ to the jury.

vivid and real

*What tactic is sometimes recommended to soften the impact of weaknesses before cross?

Volunteering weaknesses

*List types of preparation advice you would give your witness before taking the stand (6)

1) Take time answering

2) Use plain English

3) Do not guess

4) Be polite

5) Tell the truth

6) Ask if you do not understand

*Cross is not about winning the battle, but winning the…

war

*Lawyers often aim to gain these from witnesses before attempting impeachment…

concessions

*Questions on cross should almost always imply the answer, making them this type of question…

leading questions

*Name items from the impeachment checklist that can undermine a witness (5)

1) Prior inconsistent statements

2) Prior bad acts

3) Bias

4) Lack of knowledge

5) Deficiencies

*Explain the Confirm, Clue, Credit, Confront steps of impeachment (4)

1) Confirm their testimony

2) Remind of prior statement

3) Show statement

4) Confront with inconsistency

*Before impeachment, _____ requires that a witness be told the contents, time and place, and to whom the sworn statement was made.

Rule 613

*Inconsistencies are used for _____ during cross examination.

poking holes in a witness testimony

*Bias and self-interest fall under ____ of impeachment

character or credibility-based impeachment

*Experts may also be impeached with these professional flaws:

Misaligned qualifications or flawed basis for opinion

*Walk through the sequence of impeaching a witness with a sworn prior statement (4)

1) Confirm testimony

2) Ask about prior statement

3) Show document

4) Confront with inconsistency

*A theme in opening or closing should be no more than ____ points.

1 or 2

*Jurors tend to remember ___ better than impeachment attacks.

concessions

*When preparing a direct examination, there are five key organizational steps: (5)

1) Intro/background

2) Scene description

3) Action description

4) Exhibits

5) Harm/damages

*Name techniques to control an evasive witness on cross (4)

1) Short questions

2) Simple words

3) Call out rambling

4) Get them to agree to things they can not deny

*Labeling parties or events (such as “the two-ton truck” vs “delivery van”) to influence jurors’ perceptions…

Framing the story in favorable terms to shape the jury’s emotions and memory