Digital Commons @ University of Georgia Digital Commons @ University of Georgia

School of Law School of Law

Popular Media Faculty Scholarship

8-1-2003

Opening Statement -- Making It Stick Opening Statement -- Making It Stick

Ronald L. Carlson University of Georgia School of Law, leecar@uga.edu

Michael S. Carlson Augusta Judicial District, District Attorney

Repository Citation Repository Citation Carlson, Ronald L. and Carlson, Michael S., "Opening Statement -- Making It Stick" (2003). Popular Media. 76. https://digitalcommons.law.uga.edu/fac_pm/76

This Article is brought to you for free and open access by the Faculty Scholarship at Digital Commons @ University of Georgia School of Law. It has been accepted for inclusion in Popular Media by an authorized administrator of Digital Commons @ University of Georgia School of Law. Please share how you have benefited from this access For more information, please contact tstriepe@uga.edu.

GBJ feature

Opening StatementMaking it StickBy Ronald L. Carlson and Michael S. Carlson

very lawyer who sits

down to plan her open-

ing remarks for a com-

ing trial has the same question:

How far can I go in arguing my

case during the opening statement?

Can I mention the law? What about

drawing a diagram of the accident

on a blackboard? Will my oppo-

nent be able to stop me from dis-

playing a couple of my dramatic

exhibits to the jury?

Making one's theory of the case"stick" from the very start of thetrial depends mightily on how farthe lawyer can go in opening state-ment. Where the defense is primari-ly a legal or statutory one, knowl-edge of whether counsel can guidethe jury by reading a defense-friendly regulation to them is criti-cal. If a plaintiff is catastrophicallyinjured, exposing to the jury a photoof his mangled body at the scene ofa collision is strong medicine at thestart of the case. Is it allowed?

The aim of this article is to assistGeorgia practitioners in effectivelypreparing an opening statementand to provide a blueprint forresponding to objections thatwould frustrate that goal. By work-ing within the legal boundariesthat control opening remarks,counsel can creatively present theircase at this vital stage of the trial.She can indeed make her theoriesstick.

Visual Aids

Suppose there is an issue in acriminal case regarding space anddimensions. Two people werekilled in a stabbing attack. It tookplace late at night in a townhouseentryway. The defense claims thedefendant, who was clearly alonethat night, could not have commit-ted the double homicide; a singleperson could not have controlledboth victims without one of themrunning away. Wrong, says theprosecutor. The space where themurders occurred is so constrictedthat a burly attacker would havebeen able to pin two people down.An excellent way for the prosecu-tor to convey the tight fit is with anaccurate diagram of the murderscene, drawn to scale. Workingwith the diagram in front of the

jury to point out where the bodieswere discovered gets everyonebelieving that the lone defendantcould have pulled it off.

Where the defense is alibi, adefense attorney may strategicallyemploy a timeline, demonstratingthat the presence of the accused ata distant location precluded hispresence at the crime scene whenthe crime occurred. He could nothave been at point A at an estab-lished time and then traveled topoint B in time to murder, thedefense persuasively asserts.

Commercial civil cases, on theother hand, frequently involve ablizzard of names, dates and busi-ness associations. The jury will seethis information as a morass of triv-ia unless counsel creates an open-ing statement strategy that dispelsthe confusion. The prepared chartseems to be the answer. Whencounsel is involved in a complexcase and is dealing with a plethoraof names, dates and companies,she is authorized to utilize chartswhich identify the "cast of charac-ters."

Retention of the otherwise dis-tracting details improves remark-ably. The names stick.

Will case law support the use ofa prepared chart? The Georgia

18Georgia Bar Journal

Georgia Bar Jounal18

HeinOnline -- 9 Ga. B.J. 18 2003-2004

Supreme Court says "yes." InHiglzfield v. State,l the Courtallowed the use of a chalkboardlisting the participants in thecrimes and the expected witnesses.It was properly displayed in open-ing statement. In civil cases, astatutory rule allowing the practicehas caused Georgia appellatecourts to wax even more stridentabout the propriety of visual aids?In Lewtyn v. Morris,3 the Court ofAppeals lield that the trial court"overstepped its bounds" by sus-taining an objection to use of ablackboard to identify the locationsof the cars involved in a wreck.

Lewyn suggests an interestingpossibility. There are dozens ofareas of trial practice law where thebench can go either way on a con-tested question, without fear ofreversal. Multiple issues fall underthe umbrella of "judicial discre-tion." Counsel's right to go to theblackboard during opening maynot be one of those. Under Lewyn, asuccessful claim of reversible errormay be constructed around a trialjudge's arbitrary decision to baruse of the blackboard.

Of course, in this electronic age,some attorneys may preferPowerPoint and other technologi-cal methods over a simple black-board. The controlling case lawdoes not preclude electronicallycreative strategies for previewingtrial evidence.

Display of TrialExhibits

Often a particular piece of phys-ical evidence is critical to a case.This might be the object itself, like agun or a knife or a gasoline tank, ora photograph of one of these items.Obviously, counsel wants the jury

to be familiar with such evidence atthe outset, but a nagging question

resounds: Is displaying trialexhibits in opening statementallowed? As with visual aids, theanswer supplied by the GeorgiaSupreme Court is "'yes." In McGeev. State, the Court ruled that dis-playing an exhibit during the initialremarks to the jury "is a permissi-ble part of the opening statement,as its purpose is to help the juryunderstand and to remember theevidence."4

This technique often dependsupon counsel knowing in advancethat she can expose such items. Attimes like this, a pretrial motion inlimine to admit particular evidenceis advisable.

Stating theApplicable Law

In a criminal case, a federal pros-ecutor tells the jury:

"The accused is charged under

August 2003 19

August 2003 19

HeinOnline -- 9 Ga. B.J. 19 2003-2004

the U.S. Currency Structuringstatute. What is currency structur-ing, ladies and gentlemen?Congress passed a law in the 1970sthat provides that whenever a bankreceives more than $10,000 in cashfrom a customer, the bank must filea report with the government.Some sharp characters thendesigned their deposits to come injust under the $10,000 deposit ceil-ing. To remedy this abuse of thereporting law, in more recent yearsCongress enacted another statute.It provides that if an individualstructures his banking so as toavoid the reporting law, he isguilty of currency structuring. Thatis exactly what the defendant didin this case."

At this point counsel is inter-rupted by a defense objection:"Objection, he is instructing thejury on the law."

Does an attorney venture into"argument" when he describes theapplicable law in his initialremarks to a jury? "Not so," saidthe Georgia Supreme Court, whichheld in Kinsman v. State that coun-sel's referring to "the applicablelaw" in opening statement was noterror, and did not violate theGeorgia proscription against"reading law" to the jury.5

In addition to Georgia, do feder-al courts permit moderate refer-ence to highly relevant legal princi-ples in opening? Indeed, they seemto have exceeded Georgia courts ingranting license to counsel toexplore legal doctrines. In UnitedStates v. Strissel the prosecutorexplained the RICO statute inopening, and that it applied to thedefendant, not just to racketeerslike Al Capone. The United StatesCourt of Appeals held that "[aJ

defendant need not be a mobster[in order] to forfeit [his] assets,"

There is a distinction between making brief

reference to favorable legal principles on

one hand versus intensively arguing the law

on the other.and accordingly the prosecutor'scomment was not prejudicial. 6

United States v. Rodgers alsoapproves prosecutorial legal direc-tion to the jury. In opening state-ment the prosecutor explained:"It's the United States Attorney'sresponsibility to present this caseto a grand jury. If the grand juryfinds probable cause that a crimehas been committed then an indict-ment is returned."7 The defensecomplained on appeal about thenature of these remarks, to whichcomplaint the Court of Appealsresponded: "The prosecutor's com-ment about the grand jury wasmerely prefatory to the reading ofthe indictment and was a correctstatement of how a federal indict-ment comes to be."8

There is a distinction betweenmaking brief reference to favorablelegal principles on one hand versusintensively arguing the law on theother. It is only the latter which isprohibited. Having said that, onecommentary provides wise adviceabout how far counsel should pushthe envelope when urging law inopening:

[T]he attorney ought to avoidany extended discussion of thelaw. The witness usually cannottestify about the law, and it istherefore improper for the attor-ney to go on at any length dur-ing opening about the law. Aswe shall see, near the end of theopening while she is expressingconfidence in her case, the attor-ney can make a passing refer-

ence to the burden of proof. Ifthe attorney's case rests on astatutory cause of action ordefense which lay jurors arelikely to be unfamiliar with, thejudge has discretion to allowthe atlorney to read the statuteduring opening.... However, ifthe attorney spends more than afew sentences discussing thelaw, the judge might intervenesua sponte; in the jury's pres-ence, the judge may remind theattorney that it is the judge'sprovince to instruct the jury onthe law and admonish the attor-ney to refrain from legalinstruction. 9

Colorful LanguageUsing colorful verbiage in closing

argument is not only tolerated, butencouraged. 10 Less has been saidabout the propriety of theatricalspeech in opening statement. Whatif counsel wants to engage in dra-matic language? Contrary to whatcourtroom folklore might suggest,counsel is entitled to utilize colorfullanguage in opening statement.11

Georgia courts allow this in civilcases if the evidence supports theterms invoked. For example, noerror was ascribed to the trialcourt's allowing plaintiff's counselto refer to the defendant's train as"barreling through Stockton" tocharacterize its speed at the time ofthe collision in question. 12

In Teems 2. State,13 the GeorgiaSupreme Court allowed the prose-cutor to state that the defendant was

20 Georgia Bar Jourizal

20 Georgia Bar Journal

HeinOnline -- 9 Ga. B.J. 20 2003-2004

"riding shotgun," to describe hisoccupancy in the passenger seat of avehicle on the night of the murder.The court held that "[tjhe remarkwas a colloquial and colorful way ofstating what the evidence wasexpected to prove, but was notinappropriate or harmful error."14

Similarly, in federal courts it hasbeen held that where colorful lan-guage of a prosecutor indicates "apermissible preview of the chargesand the evidence to be presented attrial," no error is present1 5 In acivil case, the United States Courtof Appeals for the Eleventh Circuitdetermined that describing theopposing party in opening state-ment as having been "stoned out ofhis mind" was not error.16

In United States v. Johnson thedefendants were convicted ofsending bombs to injure anddestroy British military helicoptersin Northern Ireland. The trial last-ed 28 days. Later, certain of theprosecution's opening remarkswere challenged as improperlyinflammatory. The prosecutor hadcharacterized the Irish conflict inwhich the defendants wereinvolved as "an echo of sadnessfrom the graves of dead genera-tions."17 Armed activism againstEngland was described as "blood)but abortive." 18 The prosecutorprovided an image of ambush andsabotage committed by theProvisional Irish Republican Army"amongst the hedgerows, stonewalls and narrow lanes of the Irishcountryside."'19

How did the United States Courtof Appeals react to this colorfullanguage? Extremely well, accord-ing to the court's opinion. "Thechallenged statements, in our view,were not improperly inflammato-

ry. Though vivid and rhetorical,against a background redolent of

long continued violence and car-nage they did not exceed thebounds of adversarial propriety. '20

Don't Get StuckWhile it adds interest for counsel

to utilize impact language, sheneeds to avoid getting carriedaway. At least three major pitfallscan trip her up.

First, if counsel becomes pas-sionate and swings too wildly, shemay make unwise concessions inher speech. In a federal trial thesewill bind her client and may costthe party a victory. As indicated inUnited States v. Blood, "a clear andunambiguous admission of factmade by a party's attorney in anopening statement in a civil orcriminal case is binding upon theparty." 21

Georgia decisions have beenmixed on the right to send a partydown to defeat based upon whather attorney said in opening. In acivi' proceeding it seems that aclient is bound by statements of herattorney made in open court whensuch statements are made in theclient's presence and are notdenied by the client.22 However,criminal cases appear to be differ-ent. A much higher level of certi-tude regarding the intent of theparty to admit or concede a point isrequired.23 Notwithstanding,instead of simply relying uponuncertain precedent in an effort toavoid the damage, why not exer-cise a measure of caution aboutmaking careless admissions duringopening?

A second pitfall is abundantlyclear in Georgia jurisprudence: Ifyou promise too much in opening,it can be held against you. It isappropriate in closing argument for

an opposing attorney to look backat the opening statement of an

* Depression0 Anxiety/Stress* Life Transitions

o Career Concernso Divorce/Separationo Relationship Conflicts

FORENSIC COMPUTER INVESTIGATIONSNetronics Technologies Corporabon uses state ofthe art technology and techniques to locate and

retrieve hidden, concealed, altered or deleted filesfrom personal computers, networks, personal digital

assistants and digital storage devices. Provdingexpert witness and invesbgahve services in litigabon

involving computer or digital evidence.Netronics Technologies Corporabon utilizes strict

evidenbary procedures adhenng to the samestandards and procedures as accredited law

enforcement agencies.Contact Jay Brooks, MCSE

Netronics Technologies Corporation3404 Femandlna RoadColumbia, SC 29210Phone (803) 772-7525

e-mali jbrooks@netronix.net

Is your phone ringing like it

used to? Last month wereferred over 17,000 callers to

our attorneys. Are you ready to

* Cos & Inspcion

* CstoQuaty Analysrs

IL

August 2003 22

* Materials & Labor Painic! TurnerEvaluation t kO #0

770-922-44111dincrWbiisoutb net

21August 2003

HeinOnline -- 9 Ga. B.J. 21 2003-2004

opponent and deplore an oppo-nent's omission of proof. 24 Thus, itis appropriate for a defense attor-ney to argue as follows in closing apersonal injury case: "The plaintiffpromised in his opening remarksthat he would supply, and I quote,'ample proof of the plaintiff's dam-aged mental state as a result of thisaccident.' Members of the jury,where was the expert testimonyregarding psychological injury?Not one expert took the witnessstand to support his claim of post-accident mental trauma. I submitthe plaintiff has broken the promisehe made to you in his opening state-ment." Put bluntly, overstatementat the start can kill you in the end.

Opening the DoorA final pitfall worthy of mention

is the inartful speech that allowsone's opponent to open a can ofworms. Assume there is certaindamaging evidence that youropponent is barred from exposing.Can you activate his right to dis-close the prejudicial stuff by yourown opening statement? Yes, saythe Georgia courts, an:! examplesabound. Evidence otherwise pro-hibited under a motion in limine,for example, can be introducedafter an opening statement by themovant explores the proscribedtopic.2' Similarly, the United StatesCourt of Appeals for the EleventhCircuit has ruled that in federalcourts, a verbal attack by a lawyeron a witness during opening is suf-ficient to allow introduction of evi-dence on direct which is typicallyonly relevant after the witness'credibility has been attacked uponcross-examina tion.26

Objection Strategy

In this segment of the article, weshift gears. What should be couii-

sel's objection strategy during.opposing counsel's opening?

While it makes good sense toavoid casual or technical objectionsduring an opponent's opening,there will be times whn a lawyer isvirtually compelled to object. It ishornbook law in Georgia that anobjection to an offensive openingmust be made when the offendingremark is uttered, and not later. 27

Some cases even hold that waitingto the end of an opposing attor-ney's speech and then moving for amistrial is too late.28

Checklist of ObjectionsA list of relevant objections to an

improper opening statement maybe helpful at this point. In Georgia,objections can and should be madefor the following:* Addressing jurors by name* Argument of the law* Arguing the credibility of

expected witnessesn Arguing facts, and drawing

inferences and conclusions fromthem

a Emotional appealsa Inflammatory rhetoricm Racial or ethnic appeals* Referencing inadmissible evi-

dence

ArgumentThe central objection that will

likely be made to your opening, orwhich you will be compelled toassert against an opponent, is"objection, argument." Argumentoccurs when your opponent infersor concludes from the expected evi-dence. A hypothetical examplefrom defense counsel's opening ina civil fraud case illustrates:"Members of the jury, the real cul-prit in this case is the plaintiff's first

witness, the plaintiff himself, HarryS. Dexter. Wait to form imprL.,sions

until you have heard my cr,,-examination. In between his false-hoods, I will tear out the few bits oftruth contained in this man. It willbe tough. But at the end of the day,you will be able to conclude thatthe supreme liar in the case is noneother than Mr. Dexter!"

Objectionably argumentativestatements usually take one ofthree forms. First, there is animproper diatribe about credibilityof a witness, as the prior paragraphillustrates. Next, the attorney some-times improperly draws an infer-ence from the circumstantial evi-dence in the case. Finally, the attor-ney ought tu avoid any extendeddiscussion of the law.29

It is helpful to note what doesnot constitute improper argument.Counsel's description of the trialprocess-who goes first and whogoes last-is not argument.30

Further, counsel does not err by"framing the case," as when shetells the jury what the key issue willboil down to.31

PreparationThis article would be incomplete

without a word about preparingthe successful opening. It is advis-able to practice the opening state-ment in advance of trial. Fewlawyers become good persuadersby giving their speeches for the firsttime at trial. Practice them in nonle-gal settings, on friends and withfamily. It is a truism that speakingin public - the very thing a lawyermust do when delivering a Lourt-room opening - is a major fearfaced by human beings. Practiceand rehearsal help to control thisfear.

Conclusion

Perhaps no area of trial practiceis as critical or enigmatic as that of

22 Georgia Bar Journal

22 Georgia Bar Journal

HeinOnline -- 9 Ga. B.J. 22 2003-2004

opening statements. It is an areathat successful lawyers must mas-ter, because a slow start can doomone's effort. As one commentatorremarked: "A trial is like an athlet-ic contest in this respect: It's hard tocome from behind and win."32

While some pundits of trialadvocacy claim that as many as 80percent of jurors decide the out-come of a case right after openings,few sources provide specific, case-based guidelines as to what is andis not allowed. As a consequence,advocates all too often artificiallyconstrain their initial presentationsto juries, and fail to make the kindof "first impression" that will last.

In criminal cases, a prosecutingattorney may state in opening state-ment what she expects in good faiththat the evidence will show duringthe trial of the case.33 Similarly, in thecivil context, Georgia courts author-ize counsel to state to the jury whatshe expects to prove at the trial.34

Within those parameters, attorneysare entitled to use compelling lan-guage, show exhibits and illustratetheir theories with visual aids.

With jurors becoming more andmore demanding about the level ofadvocacy counsel must employ at allstages of a trial, trial lawyers mustknow of all the legal tools at theirdisposal. Hopefully, this article hasprovided Georgia practitioners withguidance and a fresh perspective onachieving more during their criticalopening statements. *

Professor Ronald L.Carlson teaches at theUniversity of Georgiaii School of Law and haswritten 13 books onevidence and trial

practice. In 2000, he received theHarrison Tweed Award from the

American Bar Association/-

American Law Institute in recogni-tion of his contributions to contin-uing legal education.

Michael S. Carlsoncurrently serves as aprosecutor in theoffice of the DistrictAttorney for theAugusta Judicial

Circuit. He previously practicedlaw with the Augusta firm of Hull,Towill, Norman, Barrett and Salley.

Endnotes1. 246 Ga. 478, 272 S.E.2d 62 (1980).2. See O.C.G.A. § 9-10-183; Tench v

Galaxy Appliance & FurnitureSales, Inc., 255 Ga. App. 829, 567S.E.2d 53 (2002).

3. 135 Ga. App. 289, 217 S.E.2d 642(1975).

4. 272 Ga. 363, 364, 529 S.E.2d 366,368 (2000).

5. 259 Ga. 89, 92,376 S.E.2d 845. S49(1989).

6. 920 F.2d 1162,1167 (4th Cir. 1990).See United States v. Retos, 25 F.3d1220 (3d Cir. 1994) (prosecutordescribed currency structuringstatute).

7. 981 F.2d 497, 499 (11th Cir. 1993).8. Id.9. Ronald L. Carlson and Edward J.

lmwinkelried, Dynamics of TrialPractice 119-120 (3d ed. 2002).

10. Waits v. Hardy, 214 Ga. 41, 43,102S.E.2d 590, 593 (1958).

11. Teems v State, 256 Ga. 675, 352S.E.2d 779 (1987).

12. Seaboard Coast Line R.R. Co. v.Zeigler, 120 Ga. App. 276, 170S.E.2d 60 (1969).

13. 256 Ga. 675, 352 S.E.2d 779 (1987).14. 256 Ga. at 676, 352 S.E.2d at 781.15. United States v. Hoelker, 765 F.2d

1422 (9th Cir. 1985).16. Haney v. Mizell Mem'l Hosp., 744

F.2d 1467, 1476-fl (11 th Cir. 1984).17. 952 F.2d 565, 574 (1st Cir. 1991).18. Id.19. hI.20. hd.21. 806 F.2d 1218, 1221 (4th Cir. 1986).22. In re M.O., 233 Ga. App. 125, 503

S.E.2d 362 (1998).23. Johnson v. State, 231 Ga. App. 823,

499 S.E.2d 145 (1998); Everett v.

State, 216 Ga. App. 444,454 S.E.2d620 (1995).

24. Salters v. State, 244 Ga. App. 219,

535 S.E.2d 778 (2000), Day v State,203 Ga. App. 186, 416 S.E.2d 548(1992). In federal court, see UnitedStates v. Downs, 615 F.2d 677 (5thCir. 1980). Sometimes the failureof proof results in reversible error.See Alexander v. State, 270 Ga. 346,509 S.E.2d 56 (1998); Williams v.Knight, 211 Ga. App. 420, 439S.E.2d 507 (1993).

25. Cornelius v. Macon-Bibb CountyHosp. Auth., 243 Ga. App. 480, 533S.E.2d 420 (2000). See Volkswagenof Am., Inc. v. Gentry, 254 Ga.App. 888, 564 S.E.2d 733 (2002);Bailey v. State, 273 Ga. 303,540S.E.2d 202 (2001).

26. United States v. Knowles, 66 F.3d1146 (11th Cir. 1995).

27. Burgeson v. State, 267 Ga. 102, 475S.E.2d 580 (1996); Waldrip v. State,266 Ga. 874,471 S.E.2d 857 (1996);S. Cellular Telecom, Inc. v. Banks,208 Ga. App. 286,431 S.E.2d 115(1993); Hightower v. McKintyre,170 Ga. App. 269, 316 S.E.2d 849(1984).

28. This is clearly the rule for Georgiaclosing arguments, see Butler v.State, 273 Ga. 380, 541 S.E.2d 653(2001). and the courts are inclinedto apply similar procedural rulesto opening and closing. See, e.g.,Bailey v. State, 273 Ga. 303, 540S.E.2d 202 (Ga. 2001); Wilson v.State, 271 Ga. 811,525 S.E.2d 339(1999).

29. Carlson and lmwinkelried, supranote 9, at 119.

30. Worthy v. State, 237 Ga. App. 565,515 S.E.2d 869 (1999). See UnitedStates v. Casamayor, 837 F.2d 1509(11th Cir. 1988).

31. Havron v. State, 234 Ga. App. 413,506 S.E.2d 421 (1998); PreferredRisk Ins. Co. v. Boykin, 174 Ga.App. 269, 329 S.E.2d 900 (1985),Johnson v. Jackson, 14C Ga. App.252, 233 S.E.2d 756 (1976).

32. Perdue, Starling Strong, Trial 12(July 2002).

33. Ross v. State, 233 Ga. App. 26, 503S.E.2d 308 (1998). Compare Billingsv. State, 251 Ga. App. 432, 558S.E.2d 10 (2001), where the prose-cutor told the jury in opening"welcome to y.uur part in the waron drugs." The remark wasdeemed to be inflammnatory.

34. Williams v. United Parcel Serv.,Inc., 180 Ga. App. 387, 349 S.E.2d

264 (1986).

August 2003 23

August 2003 23

HeinOnline -- 9 Ga. B.J. 23 2003-2004