Persuasion and the Opening StatementAuthor(s): Abraham P. OrdoverSource: Litigation, Vol. 12, No. 2, PERSUASION (Winter 1986), pp. 12-14, 67Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29759050 .

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Persuasion and the

Opening Statement

by Abraham P.Ordover The paper pushing is over. The motions, interrogatories, and briefs are behind you. The jury is sworn and waiting. You have rehearsed with partners, friends, spouse. You cannot be too

long or too short, too detailed or too simple, too argumenta? tive or too understated. You know that the opening statement determines the rhythm of the trial and, often, its outcome.

Persuasion is an art practiced in its most subtle form in the

opening. With the first words to the jury, the art begins. You have only a few moments to present your theory of the case, demonstrate your mastery of the facts, show your leadership and honesty, convince each juror your client's position is fair. All of the trial ? the direct, the cross, and summation - flows from the opening.

The rule of primacy teaches that what is believed first tends to be most difficult to dislodge. So the opening sets the stage. Primacy means the plaintiff or prosecution has a great advan?

tage in going first. If the narrative is clear and compelling, the defendant must immediately neutralize the impact of his adver?

sary's remarks. To delay leaves the jury with only one view of the case and no reason to withhold judgment. The process of persuasion has begun.

First, the plaintiff must attract the jury's attention. A thematic

opening paragraph that discloses his overall position in cap? sule form is best. An example is a civil action that involves whether arson or accident caused the fire that destroyed a

building. Counsel for the owner of the ruined business has a thematic

opening paragraph: Members of the jury: The case you will hear and decide involves the refusal of an insurance company to live up to its promise. Mr. Jones entered into an agreement with that company, paid his premiums to purchase insurance to protect him from this very type of loss. He faithfully paid his premiums for some ten years. Now that his plant, all that he has worked for these ten years, has been

destroyed in a horrible accidental fire, the insurance com?

pany has refused to honor its promise.

Abraham P Ordover is the L. Q. C. Lamar Professor of Law at Emory

University School of Law.

A narrative story will follow this opening salvo about the hard?

working Mr. Jones and the accidental and dreadful loss of his

building. The insurer, who has refused to pay, has its theme, too. Members of the jury: This case is not about contracts, it's about arson. The deliberate burning of a building for the purpose of collecting the proceeds of an insurance

policy. The only question is whether that man deliber?

ately fired his plant. We contend that he did, and we will offer evidence to prove it.

This thematic start, which rivets the jury's attention, is fol? lowed by a narrative of the evidence that supports the theme. Counsel will tell a coherent story with a beginning, a middle, and an end.

Grab Attention Do not engage in a lifeless, dull recitation of each witness's

testimony. The jury is not ready to be buried in evidentiary detail. That which is important will be lost in a morass of minu tia. Vacant stares will greet a litany of what each witness will

say. Moreover, the joy of discovery will be removed from the

jury. Narrative allows the relevant connections to be made because they will occur naturally during the storytelling. Who will testify to what fact is not necessary. Where one witness's

testimony is of major significance, however, it is wise to men? tion it.

Lawyers and jurors share the common heritage of learning from stories. It began in childhood. If we would persuade, we

must first grab the jury's attention. This is done not by a recita? tion of dry, unconnected facts, but rather through a simple story that contains the facts that support the theory of the case. The remainder ? the details that lend credibility to the theory

-

will come out during the trial and be highlighted in summa? tion. In this way, what you promise in opening is delivered in

closing. In addition to avoiding undue detail, the story should be

couched in real, human drama. All trials involve human beings and the mistakes, disagreements, miscalculations, frailties, emotions, and other failings to which humans are prone. Wit? nesses will testify to these failings. The opening is interesting

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and credible if it reveals both parties' feet of clay. While you should not dwell on the weaknesses of your case, the jury should hear about them from you, not from your opponent.

If the evidence will include blood and gore, let the jury know. To be sure, the shock value of such evidence is reduced.

Do not engage in obvious argument. The opening is not the time to argue the meaning of particular pieces of evidence or to draw inferences from the disparate facts.

If we return to the arson scenario, counsel for the insurer

will, in his story, tell the jury that the plaintiffs business was

suffering large losses; that the market for plaintiffs product was disappearing; and that plaintiff had said he was desperate over his plight. This is what the witnesses will say. This is what the documents will prove. Argument is not necessary. With plaintiffs plight described, defense counsel will con?

tinue with information about the hiring of the unsavory Mr. X just before the fire. Finally, the jury will be told of the high? lights of the arson investigation. Neither "argument" nor draw?

ing of inferences is required. The selection of facts and the order in which they unfold suggest the desired conclusion quite dra?

matically. You need not argue; let the facts argue for you. They need no conclusory language from the lawyers. And if coun? sel cannot resist drawing inferences for the jury, he should do so in quiet tones and in an understated manner. To the judge, argument is frequently defined more by tone than content. How

something is said may be more important than what is said. That raises the question. What is argument? Argument has been so loosely defined in judicial decisions

that its precise parameters are hazy. The trial judge has wide discretion in regulating the opening. Moreover, objections dur?

ing the opening are mercifully few - probably for fear of

antagonizing the jury. The law of opening statements, then, is essentially what individual lawyers actually do in courtrooms -

usually with the forbearance of their adversaries - and bears little relation to the boundaries set by appellate decisions. These decisions describe undue argument as: 1. The assertion of material, which counsel knows or should

know, is inadmissible at trial; 2. The assertion of "facts" for which no proof will be offered; 3. The injection of personal opinion as to the merits of the

case or the credibility of witnesses; 4. The drawing of inferences from the facts; 5. Blatant appeals to prejudice

? the so-called "poison-the mind-of-the-jury" rule;

6. Undue argument of the law; and 7. Vehement or angry comments.

Reversals Are Infrequent The first three areas have nothing to do with argument. They

are as improper in summation as in opening. Counsel is never

permitted to argue from inadmissible evidence or "facts" for which no proof has been presented. Opinion of counsel is

universally condemned as unethical, though reversals on this

ground are infrequent. The last four items on the list are most frequently encoun?

tered and involve judgment calls by court and counsel.

Drawing inferences from the facts is generally reserved for final argument. Indeed, that is the purpose of summation. The

proper opening will present the facts in a narrative that requires no comment until summation.

Blatant appeals to prejudice are easily identified. When a

prosecutor detailed some 80 or 90 indicted crimes allegedly committed by the defendant, the court condemned his open? ing as character assassination designed to poison the minds of the jurors. Fair enough. The real test is in drawing the line between persuasion

? a proper attempt to have impact on the minds of the jurors

- and prejudice. If we define prejudice in the same manner used for evidentiary purposes, then we can find the line.

In one sense, all evidence is prejudicial to your adversary's case, or you would not bother offering it. But legal prejudice is different. Legal prejudice involves trying to obtain a verdict on facts not in evidence or on passion, anger, or confusion of the issues. Proper persuasion in an opening statement is sim?

ply the skillful use of narrative so that the admissible evidence is compelling. Improper argument involves matters outside the record and appeals to outrage or sympathy.

Permissible argument of the law is a matter of local custom. Where counsel are allowed to argue the law, the actual argu? ment is reserved for closing. The law that governs the case may, however, be adverted to in the opening. How much is too much

The law of opening statements is what lawyers do in courtrooms. It hears little relation to appellate decisions.

usually involves attempts by the lawyers to explain and apply the law at the outset. Judges see this as an invasion of their

province.

Excerpts from two prosecution opening statements will help illustrate the line between a proper narrative where the facts

argue the case and an improper statement filled with inadmis? sible evidence and conclusions of counsel. To be sure, even the "proper narrative" contains some arguably improper mate? rial ? that is the nature of this beast.

The prosecutor's opening in Case One: On an afternoon in August 1975, two men got up from a table at Jones's Restaurant in New York and went into the men's room. After looking around to be sure that no one else was there, one man reached into his pocket and handed the other man a white envelope containing $15,000 in brand-new $100 bills. The man who was handed the envelope was the presi?

dent of the Brown Corporation, one of the largest stevedoring companies in the United States.

The man who received that white envelope with

$15,000 in cash is the defendant. That event, one incident from the testimony that you

are going to hear in this case, tells you in a nutshell the

story of what this case is about. It is a story of corruption, it is a story of greed, it is

a story of a powerful labor leader who, despite receiv?

ing a salary of $140,000 a year from his union, demanded and received over $300,000 in cash, illegal payoffs from

companies doing business on the waterfront.

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From the first minute, the jury knows the nature of the case and the power with which it will be presented. This narrative contains facts that speak for themselves.

Are "corruption" and "greed" argumentative because they are

conclusions, or are they facts to be introduced by the govern? ment? Should we conclude that "corruption" and "greed" are

improper because no witness will testify that defendants were

corrupt or greedy? Such simplistic reasoning has the merit of ease of application. It has no other merit. The story is, after

all, one of a powerful leader who received a salary of $140,000 per year and, in addition, obtained substantial monies from others.

For the true flavor of argument, consider Case Two: We will prove to you beyond any reasonable doubt how these conspirators operated in league together to

systematically enforce their will to corruptly, venally exact tribute from those who sought to do business in Atlantic City, New Jersey. Their greed could never be satiated ....

These defendants ruled Atlantic City, New Jersey, as if it was their private kingdom. They enforced a total feu? dal system of corruption upon that society, and they acted as the lords of corruption. We will prove beyond any reasonable doubt that these

defendants knew what they were doing was wrong, that

they knew what they were doing was immoral, and that

they knew what they were doing was against the laws of the United States ....

Certain he would never be caught, never be brought to justice, this defendant, Arthur Jones, was brazen and

arrogant in his dealings while publicly representing him? self to be acting in the best interest of Atlantic City, New

Jersey. This charlatan lied whenever it pleased him, and

secretly collected tens of thousands of dollars for him? self and the other members of the conspiracy. (Interestingly, the convictions in this case were affirmed

despite the court's view that the portion of the opening state? ment quoted above was an improper attempt to poison the minds of the jury.)

The prosecution's burden is essentially to lay out a prima

What does defense counsel do when his argument is that the government's charges cannot he proved?

facie case in the opening. It must deal with facts. Indeed, in a few states, the failure of the prosecution to detail a prima facie case in its opening may result in the granting of a motion to dismiss.

A more difficult problem arises with some defense open? ings in criminal cases. There are many criminal cases in which the defense opening can consist of the same type of narrative used by the prosecution. And in civil cases, both sides can use the storytelling approach. But what does defense counsel do

when his defense is an argument that the government's charges cannot be proved and that the prosecution's witnesses are incredible? There are a number of cases in which trial judges have sus?

tained objections to defense opening statements that rely on reasonable doubt, question whether the charges were brought in good faith, or urge the jurors to use their common sense as

they listen to the witnesses.

Fortunately, most judges permit the defense wide latitude where no affirmative defense is urged, and the primary defense is an attack on the people's evidence. But when judges seek to restrict defense counsel to "just tell us what you intend to

prove," it raises several problems.

First, that approach fails to recognize the essential differ? ences in what the people must accomplish compared to what the defense must do. The defense may be an argument that seeks to neutralize the prosecution opening. Indeed, the defense need not open at all ? a permissible but dangerous tactic.

Moreover, rigid application of the "just tell us what we intend to prove" approach gives the court too much power. The law?

yer is at the mercy of the court and reduced from an advocate to a mere functionary.

Defense Should Always Open In practice, defense lawyers customarily caution jurors to

pay close attention to the prosecutor's promises and to listen to the cross-examination of the people's witnesses as well as the direct. They also talk about the presumption of innocence and the burden of proof.

The defense should make an opening statement. To be sure, there are always exceptions. It may be that the case will be tried in a day, and that the defense has been permitted to conduct a voir dire of the jury. In such a situation, the jury selection may contain what counsel would do in an "argumentative" opening.

Generally, however, defense counsel must be aware that the rule of primacy, the order in which a trial unfolds, and the

presumption of guilt hurt the defendant. Stated differently, many jurors will enter the courtroom believing that the defendant is probably guilty. After all, they reason, the police arrested him, the district attorney decided to prosecute, and the grand jury indicted. If we now add a good, strong prosecution open? ing, the process of belief will take hold. The rule of primacy instructs that this belief will be difficult to dislodge. If the defense does not open or reserves its opening until after the

people's case, the jurors will be captured by the prosecution, especially if the court has conducted the voir dire. By the time the defense presents its case, it will be too late.

Even if the defense has conducted voir dire, it should open anyway. Prosecution's opening will be sandwiched between the defense voir dire and opening, giving the defendant his only procedural advantage.

The voir dire should set up the defense opening. For instance, the voir dire can alert jurors to the unsavory background of the people's witnesses, circumstantial evidence, problems with

eyewitness identification, and the like. The opening is, how? ever, the better forum for the defense theory of the case and for the use of narrative.

During the opening, counsel must establish his credibility, leadership, and fundamental fairness. This is acutely necessary

(Please turn to page 67)

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sound reasonable while keeping the jail house door closed. Rather than follow?

ing principles of judicial restraint, how? ever, the appellate court actually chose to close its eyes to three obvious, unresolved questions:

1) How could six feet of computer print? out unravel from a lectern from which the

prosecutor was speaking without a sin?

gle juror noticing? 2) Given that the prosecutor was hold?

ing the printout and questioning Atkins about his past criminal record, how could no juror realize that the printout con? tained that record?

3) After defense counsel moved for a mistrial on grounds of prejudice, wasn't the judge responsible for deciding whether the jury should be questioned about prejudice?

By ignoring these questions, the appel? late court avoided the correct answer.

Legal

Lore

(Continued from page 52) "Shmuel Haimowitz turned to Joseph

and said ..."

The other lawyer jumped up. "I object," he shouted.

"There's no jury here, so calm down," the Surrogate said. "Let's hear the wit? ness's answer, and if it's incompetent, I'll strike it."

"Tell us again, Mrs. Warshavsky," the first lawyer said. "What happened when Shmuel Haimowitz came to the Four

Questions?" "He turned to Joseph and said, 'Now,

my last-born son, you may ask the Four

Questions.'" The other lawyer was still on his feet.

"That's hearsay, Your Honor" he said. "An

out-of-court statement by Shmuel that

Joseph was his youngest son, and that's

exactly what it's being offered to prove." "I see your point," said the Surrogate,

"but, you know, there are exceptions to the hearsay rule. I'll take Mrs. War?

shavsky's testimony. It comes in under the

pedigree exception." The Surrogate suddenly looked over

the railing directly at me. "Am I right, Professor?" he asked. He was.

Persuasive

Openings

(Continued from page 14) when the court has conducted jury selec? tion. A number of standard phrases widely used in opening statements tend to defeat these goals. For instance, leadership cannot be found in counsel's

apology for taking the valuable time of the jury to listen to this tedious case. How

many lawyers seek the obsequious route to ingratiating themselves with the jury? "Sorry you folks have to sit in a gloomy courtroom on such a glorious day," they say. This will hardly lead to an image of

leadership or honesty. The jurors are well aware of the glorious day. They would all

prefer to be elsewhere, but they are

trapped in the box. Do not remind them of their unhappiness.

Another ploy is for counsel to admit that what he says is not evidence in the case, but only intended as a guide or road

map to what will follow. This says that what counsel is doing is not very impor? tant. Lawyers should not undercut the

significance of their role or their words. If the court wishes to instruct the jury that counsel's remarks are not evidence, so be

it; the effect will be quite different. Defense counsel, however, may want to remind the jury that what his adversary says is not evidence. Indeed, that warn?

ing usually responds to some overstate? ment of plaintiffs case.

Leadership and credibility also depend upon the image of the lawyer. The advo? cate who delivers his opening without notes will seem to be well prepared and conversant with the facts. He will have

eye contact with each juror. He will not be trapped behind the podium. There will be no barriers between him and the jury.

The lawyer who is stuck to his notes cannot establish the same rapport with the jury. His delivery will be to the

podium. He will not establish good eye contact, nor will he seem as well pre? pared. The reader tends to move too

quickly. Impact will be lost; barriers erected.

Recognition of leadership will not be awarded for discourtesy. Courtesy to the

jury, court, and colleagues is important. Yet the number of lawyers who alienate

their juries by rank discourtesy is

unpleasantly large. Yet should the attor?

ney thank the jurors for doing their civic

duty, wrap them in the flag, and explain the trial? The answers to these questions depend on the particular jurisdiction and on who conducted the voir dire.

If counsel conducts the voir dire, the "thank you" can be delivered. Wrapping jurors in the flag and giving civics les? sons usually results in talking down to the

jury and should, in most instances, be avoided. Many courts now show all

prospective jurors a movie about jury service just before selection. All trial law?

yers should see the film. It likely will save the effort of the civics lesson and permit counsel to use his opening for the merits of his case.

Freed of these impediments, counsel can launch into his thematic opening, go on to the narrative, and sit down having accomplished his objective

? starting to

persuade the jury.

Picture

Theory

(Continued from page 11) similar from color, consistency, and contrast."

A: It starts with a "c."

Closing is where we usually try to use the most vivid pictures. Closing is the time for telling stories and creating anal?

ogies. Closings are high drama. When the lawyer talks with pictures that are created by analogies, then the story is

complete. Stories are real and tangible, and that makes them memorable.

A defendant was charged with the murders of two men at the U.S. Post

Office. He defended on the ground that he was insane. Prejudice against the

insanity defense after the Hinckley ver? dict made for an appropriate story and

analogy for the jury. Trial counsel reasoned that the fear of

the defendant's release was so strong that

most jurors would not consider the

insanity defense. The prejudice was attacked with the following picture:

When I was young, I slept with a

light on in the hall outside my bed? room. I believed in things that went

'bump' in the night. I believed in

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