PLAW trial procedure (mt) OPENINGS

quiz 1 (openings and closing)

what is the first step in opennings

introduction

what is the second step in openings

overview

what is the third step in openings

story

what is the fourth step in openings

issues

what is the fifth step in openings

theme/theory

what is the sixth step in openings

impending facts

what is the seventh step in openings

law

what is the eigth step in openings

bop

what is the ninth step in openings

verdict/relief sought

What/how do you say intro (1)

“may it please the court, your honor..” wait till everyone’s ready. You may wish to introduce your theme as a brief, dramatic attention grabber

what/how do you say overview (2)

Summarize the case in approximately 30 words or less- who? where? what? when?: “this case is about_____”

who is a plaintiff?

the plaintiff is the one who starts the lawsuit in a civil court

What is prosecution in court?

legal party representing the accused person in a criminal trial

what/how do you say story for plaintiff/prosecution (3)

A literal story. Walk through what happened from your sides POV very slowly and clearly, occasionally say “as the evidence will show…” DO NOT openly argue yet, be subtle

what/how do you say story for defense (3)

You’re usually responding to the story the plaintiff just told, so reference the other side a few times. “As the plaintiff/prosecution just stated…”

what is the issue? (4)

What the jury wants answered by the end of trial

what is a theory? (5)

Your explanation of why the case happened the way you said. Why should the jury believe our side?

what is a theme? (5)

The catchy version of your theory. A short phrase the judge can remember throughout trial. Normally in three parts: “the rule of three” but it can also be a quote.

What counts as facts? (6)

Stipulations= facts both side agree are true

Witness testimony= facts your witness will establish when they testify

How should facts be approached? (6)

• Avoid witness by-witness “checklist” approach

• Make one story integrating all witnesses

• Story does not need to follow order witnesses are called

• Facts don’t win jury, stories do

How do you introduce witnesses (6)

• Personalize all witnesses

• Explain their special role

• Don’t overwhelm jury with names

• Focus on a memorable identifying characteristic/role

How should you physically connect with your client? (6)

• Put your hand on your client’s shoulder

• Don’t be afraid to start and finish standing behind your client

What should you not promise? (6)

• Never promise more than you’re sure you’ll get into evidence

• if unsure, be more general

• Coordinate with direct examiners + witnesses to know what they’ll establish

What should you avoid regarding opponents arguments? (6)

• Be careful about openly anticipating opponent’s arguments (straw man)

• Many real and mock trials are decided by the end of opening statements

Law (7)

Briefly state the law/legal standard the jury will apply to the case. keep it short, don’t lecture

What is burden of proof? (8)

Which side is responsible for providing their case and how strongly it must prove it

Who has the burden of proof in a criminal case (8)

Prosecution/plaintiff → must prove guilt beyond a reasonable doubt

How should the prosecution/plaintiff address its burden? (8)

Acknowledge and accept it → state what they must prove

Does the defense have to prove innocence? (8)

NO. The burden remains on the prosecution/plaintiff

What is the defendant presumed to be in a criminal case? (8)

Innocent until the prosecution meets its burden

What should defense focus on regarding burden? (8)

Show that the prosecution has NOT met its burden

Why should defense avoid saying something is “just as likely”? (8)

It can imply that the defense has a burden to prove an alt explanation.

How should you introduce law/burden rules in an opening? (8)

“as the judge will instruct you…” because the judge ultimately explains the law

Burden of proof — prosecution vs defense? (8)

Prosecution has burden → must prove guilt

Defense: NO burden → defendant presumed innocent → SHOW, don’t “prove,” that prosecution hasn’t met its burden

Verdict/relief sought= ? (9)

What you want the jury to decide

Where should your verdict/relief request go? (9)

very last sentence of opening

Civil case: what are you asking the jury to find? (9)

defendant liable

bifurcated=? (9)

trial split into 2 separate stages

Civil bifurcated trial stage 1? (9)

liability → did defendant legally cause the harm?

Civil bifurcated trial stage 2? (9)

damages/relief → if liable, how much money/relief should plantiff receive?

Criminal trial bifurcated stage 1? (9)

guilt- guilty or not guilty?

Criminal trial bifurcated stage 2? (9)

sentencing → if guilty, what punishment

Where should you stand during opening, if allowed? Why?

In front of the attorney table or lectern → shows you are not relying on notes.

What does it mean that Plaintiff/Prosecution may 'can' their opening?

They can have their opening largely prepared/memorized beforehand because they speak first.

What should Plaintiff/Prosecution avoid anticipating?

What the Defense will show/argue. Focus on your own case rather than guessing the Defense’s response.

How should Defense handle its opening differently?

Leave time to rebut/turn the opposing opening’s words → specifically reference the opponent’s words and themes when possible.

What is a 'cardinal sin' during opening?

Running out of time. Say less, be clear, and perform.

Why must you give judges a very clear 'road map'?

Judges may be unfamiliar with the case and completely unfamiliar with your argument, may be distracted by score sheets, and listeners remember only about 1/3 of what they hear.

How should you compensate for listeners remembering only ~1/3?

Go slowly, emphasize key points, and provide a clear roadmap.

What is 'primacy'?

Front-loading your presentation → judges have their fullest attention at the beginning, so put important material and strong speaking there.

Why should key points be front-loaded?

Comprehension may fade as information accumulates. First impressions should show your best public speaking and a slow, clear, dramatic presentation of key points.

Can you argue during an opening statement?

NO. Evidence hasn’t been presented, you’re not a witness, and your personal opinion is irrelevant.

What CAN you discuss instead of arguing?

Stipulations + what witnesses are expected to testify to. You are 'framing' the facts and testimony.

What should you avoid when framing facts?

Characterizations and conclusions.

Can an opening still be emotional even though you can’t argue?

YES → use controlled passion. Show that you care and make the jury care without openly arguing.

Why does word choice matter? Give the example from the reading.

Different words frame events differently. Example: Defense might choose 'accident' instead of 'crash.'

What kind of language should you use?

Visceral/emotion-triggering language, short sentences, and no empty verbiage. Less is more.

What example does the reading give of visceral language?

Paper cuts. Use language that makes listeners feel/picture something.

What is the rule regarding jargon/legalese?

Avoid it. Use language appropriate for an ordinary jury.

What should you do if legal jargon is necessary?

Immediately explain it in layman’s terms. Example: explain what burden of proof actually means.

How should you present your attitude toward your client/injured parties?

Voice concern. Don’t appear cold or mechanical; communicate that you want justice done.

How should you refer to your own client?

By their name.

How should you refer to the opponent’s client?

By their role: 'the prosecution,' 'plaintiff,' or 'defendant.'

What is 'recency'?

Finishing strongly and dramatically, just as you began strongly, while driving home your key points.

What is the 'golden rule,' and should you use it?

Bringing the judge/jury into a hypothetical (essentially asking them to put themselves in someone’s position). Avoid it.

What physical gesture should you NEVER make toward a judge/juror?

Never point your finger at them.

What word should you avoid when asking for the verdict? Why?

'Please' → it can sound like you’re begging.

What should your beginning and ending focus on?

Real people, not abstract principles.

What type of story should you use when possible?

First-person/personalized stories, e.g., 'John Smith left the house that day…'.

What is 'pre-empting'?

Addressing a weakness in your own case before the opponent does.

When should you pre-empt a weakness?

ONLY if the weakness is glaring, and never address it defensively.

What should you remember about opening statements as public speaking?

Be conscious of voice, posture, hands, etc.

What qualities should your public speaking demonstrate?

Poised, professional, dominating, and persuasive.

Why isn’t mastering trial procedure alone enough competitively?

A competitive lawyer must also be an impressive public speaker.

What does the reading say you should 'never forget' about performance?

'You are acting!'

Should you use visuals during opening?

Be cautious. Visuals can help, but no evidence has been introduced yet.

What should you do before using an opening visual such as an outline?

It’s a good idea to clear it with the judge beforehand.

What is the overall college mock-trial strategy when you’re unsure?

Performance over verdict.

Why 'performance over verdict' in college mock trial?

College mock trial emphasizes your advocacy/performance. You can worry more about actually winning verdicts in real litigation.