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Begin With The End In Mind


Way back in the mists of yesteryear, around the time I was graduating from law school, a lawyer in New York named Al Julien published a book called Opening Statements. He was a well known figure around Foley Square (the place in NYC where the courthouses and the federal buildings are) and had an office suite overlooking Foley. Unlike many weighty tomes written by lawyers which are all full of footnotes and citations and mostly serve to proclaim what a wonderful research assistant the writer had, Julien’s book was refreshingly useful and practical and read like a cookbook or other “how to” manual. I always liked that, and rummaged around in my bookshelves to dig it out for you. The pages are yellowing, but the information (especially about defense opening statements which we will deal with in a later post) is classic.

Here’s what he has to say about a good Opening Statement:

An opening statement can win the trial of a lawsuit. Delivered forcefully, magnetically, intelligently and emotionally, opening statements are an excellent conduit for success. Jurymen, in cases tried by effective advocates, have been known to say that once the opening statements were made there was nothing left to the case. This should be the prime objective of the opening statement.

In a criminal trial the prosecution opens first. In fact, the defense is not even required to open at all until after the prosecution has presented its entire case, all the witnesses and other evidence, and rested. Few defense counsel have the guts to wait that long and usually open immediately after the prosecution’s opening. There is a good reason for this:

The first impression is the most important. In jurisdictions where counsel may personally interrogate the jury, the preliminary impressions have already begun. But in the opening, the narrative, the outline of the flesh and bones of the case, the jury’s first impression harden like cement. No amount of instruction from the court that minds should not be made up until the conclusion of the case can prevent people from forming impressions. Impressions of counsel, of the honesty of his outline, impressions of the bona fides of his case, can all combine to win a case in opening. This is the psychological effect of primacy.

A 1950’s television personality, rolled up his sleeves and made famous his opening line, ”tell yah what I’m gonna do.”

That’s the opening.

In the evidence we do what we told them we were “gonna do.” In summation we remind them what we “done did.”

The prosecution bears the burden of proof. To balance things out a little, Criminal Procedure Law allows the prosecutor to have the first word and the last word. He opens first and does the rebuttal summation last. This is good, because the first impression a juror makes of the case may be the only one that counts. A prosecutor’s opening is significantly less flamboyant than a defense opening. The prosecutor has a lot of information to get in and not too much time to do so. The normal structure of a prosecution opening is as follows:

Introduction of self, of co-counsel, and possibly non-lawyer members of trial team. If you’re smart you also introduce the defense counsel–it puts you in the role of “host of the party” and makes YOU the “go to” guy for information in the mind of the jury.

Reading the Indictment is a boring but necessary part of the prosecution opening. An intelligent prosecutor does not read it all the way through, but stops along the way to explain what the stilted and formal language means. This portion of PatFitz’s opening may sound very much like the prepared remarks portion of the press conference he held when he announced the indictment of Libby (though hopefully without the baseball umpire analogy, I never liked that one).

When you do something like that, you want to use a metaphor that is something every juror is likely to have experienced because you want them to relive the emotion they felt at the time. I don’t think too many jurors will have been baseball umpires with sand in their eyes. Though we certainly all understood what he was trying to say, it will not cause an evocative flashback to the frustration of knowing that you are been lied to and prevented from seeing what you should. However, most of us have had the experience of sitting behind a huge someone in a theatre and not being able to see the entertainment, or trying to use a steamed up mirror in a bathroom after we get out of the shower, or driving at night in dense fog, or of having someone lie to us to cover up something they have done that was wrong—these are common experiences and recalling them sets our collective teeth on edge, which in this case is what you want the jury to feel.

Introducing the parties and witnesses. The Parties are the Government, which is bringing the prosecution, and Libby, the defendant. The witnesses may be introduced by name or by function. For example, “you will also hear from a witness who will tell you how the White House email system archives emails ‘in the ordinary manner’.”

Narrative of events. This will further flesh out the rather bare bones facts in the indictment and is often, though not always, done in a timeline fashion. If the parties have stipulated to pre-marked exhibits, like an actual written timeline, you may see that used in the opening. Basis of guilt = “why do these events I just told you about mean that the Irving broke the law.”

Conclusion and request for a verdict of guilty.

A phrase you will often hear in the prosecution’s opening is “the evidence will show” or “the prosecution will present evidence that ….” or “we will prove”. This is because the opening is the preview of the evidence to come. It helps the jurors to look for the important bits and appreciate their importance even when the important part isn’t very dramatic compared to other testimony. This helps to counteract the Bright Shiny Object/ Dick Cheney is Too Sexy for His Shirt defense. It also help the jury keep the timeline straight in their heads for those instances where a witness will testify about several events that are scattered throughout the timeline and therefore, some evidence will come in that is out of sequence.

You can read more about opening statements here.

For fun, you can find the transcript of the actual prosecution opening statement from the trial of Susan B. Anthony (for daring to vote) here.

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