OPENING & CLOSING STATEMENTS BOMA BROMILLOW JACK UNMIL

OBJECTIVE  At the close of the presentation the participants will be able to: 1. Identify the strategy for opening statement. 2. Explain how to tell the story of the client. 3. Identify how to find the theme of the case. 4. Identify the 4 key elements of a great story. 5. Identify key aspects of closing argument.

INTRODUCTION  Opening statement is an important moment in any trial particularly a jury trial.  It provides an opportunity for the Prosecution and Defense to:  Inform and  Persuade the jury and the court of the merits of their case.  It is the time to sell your case to the jury.

STRATEGY FOR OPENING STATEMENT  Each side is entitled to make an opening statement: 1. Start strong; 2. Tell a story; 3. Focus on the actions of the victim; 4. Do not argue; 5. Request a verdict from the jury.

START STRONG  Example: “ This case is about the alleged commission of rape” or  “John has just come back from work tired and hungry when two police officers came to arrest him for a purported complaint of rape made against him by his girlfriend. ”  QUESTION: Which do you think represents starting strong?

TELL A STORY  At the trial, witnesses will recount various details of:  Victim’s health  Crime scene  The investigation  What each particular prosecution witness heard or saw.  The opening statement is the opportunity to craft a story of your case through a clear lens to see the rest of:  The testimony and  Evidence

TELL A STORY  To tell your client’s story you must:  Understand your case  Means:  Know the facts of the case in detail.  Know the issues raised.  Know the testimony of each of your witnesses in the case  Know the order of their testimonies  Know the substantive and case law involved.  Know the lope-holes in your case.  Know your opponent’s case.

KNOW HOW TO TELL A GOOD STORY 1) A good story:  Speaks to the average person.  Is expressed in the language that makes sense to the listener.  Is not cluttered with legal gibberish 2) The story teller must have a need to tell the story:  Must have something important to say.  Must have something urgent to be conveyed

KNOW HOW TO TELL A GOOD STORY 3) A good story:  Moves our emotions.  Cuts to the heart of the matter which is usually the pain or the joy.  Expresses the pain and the need felt by your client when asking for your help.

HOW TO TELL THE STORY  Give your story :  A beginning.  A middle and  An end.  REMEMBER: The key in trial advocacy is to lead the jury unequivocally to the end you desire.  Effective opening statement contains a good story

HOW TO TELL THE STORY  It should contain the following elements: a) What happened? b) Who did it? c) How was it done? d) When and the circumstances? e) Where did it happen? f) Why did it happen?

USE THEMES  A good story is not enough. It must include themes:  Themes are core values that are widely shared by most of the jury  It taps into values and emotions  The theme of your case provides the jury with a view point from which to examine all the evidence presented through out the trial  Your theme is not the ‘wherefores and hereafters  It does not involve the legal jargon

USE THEMES  It is short and sweet with no room for complicated legal terminology  Your theme is;  The essence  The heart of your story

HOW TO FIND YOUR THEME 1. Use six sentences formula  Means: If you had only six sentences with which to tell the jury the story which words would you choose?  Example: a) Would you say in a rape case, “He is framed” or “He is falsely accused of rape?”

HOW TO FIND YOUR THEME  Write down six Short sentences to tell your story, as if they were the only six you had.  These sentences should not be in paragraphs.  There should be no semi-colons.  The six sentences need not be grammatically correct.

HOW TO PRACTICALIZE SIX SENTENCES APPROACH  They should just describe what happened at the most:  Efficient and  Effective way to engage the emotions of the jury  Remember, a story is emotional.  Ensure that the last sentence asks for the ending you want.

HOW TO FIND YOUR THEME CONTD. 2. TELL THE STORY TO A CHILD:  Where commonsense permits tell your story to a child or a spouse who is not an attorney. It will bring up questions which will help you discover what is truly important in the story. It will help you narrow your case down to essentials.

4 KEY ELEMENTS OF A GREAT STORY  NOTE: A great story makes for an interesting case. 1. The story teller must be personally involved in the story: For purposes of convincing the modern jury that you are telling a true and important story, and That your ‘your ending’ is the just ending.  Place the story in the present tense. It conveys to the listener: That the story is happening now, and the listener is part of it.

4 KEY ELEMENTS OF A GREAT STORY  It creates much more suspense for the listener, thus  Engages the mind of the juror; 3. A GOOD STORY USES IMAGERY:  It makes us experience things;  Judge things;  Makes a story come alive;  Allows us to imagine the story happening;  The more specific the story teller is the more clearly and correctly we can visualize the event.

4 KEY ELEMENTS OF A GREAT STORY 4. A great story has a genuine drama. The listener should experience the genuine drama and not the melodrama of your clients story.  A genuine drama allows the attorney to convey the sincere and very real pain suffered by the client.  Counsel must speak honestly and passionately about the injustice been done to the client.

FOCUS ON THE ACTIONS OF THE VICTIM  The best approach for a sexual assault or abuse in a jury trial is to focus on the victim rather the offender  Begin the case by highlighting the injustice that has been done the defendant by the accusation.

DO NOT ARGUE  Reserve your argument for the closing;  Be objective and state only the facts;  Do not express personal view of the evidence;  Do not argue the merits of the case;  Do not impeach the Prosecution's evidence  Example of phrases that will help you remain objective:  “Evidence will show”  “X will testify and you will hear that”

REQUEST A VERDICT  Tell the jury what a favourable verdict is from your point of view.  End the opening statement with a specify request for a verdict.  Example:  “Members of the jury, at the end of this case, I will ask that you return the verdict that this evidence demands: a verdict of not guilty”.

CLOSING STATEMENT  The prosecution will commence the closing argument followed by the defense  A closing argument comprises of: Facts, Law and; Emotions in telling your client’s story.

TIPS ON CLOSING STATEMENT 1. Argue:  It is an opportunity to argue your case.  Use the themes and theory of the case to make your argument 2. Draw the testimony and evidence together in a story:  The goal is to take the jury through the defendant’s theory of the incident

TIPS ON CLOSING STATEMENT  Refer to witness testimony, quoting them directly if possible 3. Highlight strengths:  Argue the strength of your case and not the weakness of the case of the Prosecution  Always remember that the proof for the prosecution is beyond reasonable doubt so focus on evidence that shows that the prosecution has not met this burden.

TIPS ON CLOSING STATEMENT 4. Confront weakness in your case:  Confront doubts that might have been introduced by the prosecution  So present the defence’s interpretation of the weakness in your case before the State gets in with it.

TIPS ON CLOSING STATEMENT 5. Focus on the victim and not the Sex offender:  Remember that the jury may not be sympathetic to the victim.  They might blame the victim.  Thus build your case on and around the fact that the defendant did not commit the alleged act.

TIPS ON CLOSING STATEMENT 6. Conclude:  End on a strong point  Ask the jury for the verdict you want 7. Rebuttal:  Reserve time for rebuttal  Focus on addressing any weak point in the case of the prosecution closing.

OTHER TECHNIQUES  The defense counsel must make effective use of the different voice inflections in delivering the opening and closing statements.  Voice inflections that can be used are: 1) Falling inflection: Associated with a statement with a period at the end. It signals:  The end;  Finished.;  No more to say.

OTHER TECHNIQUES  Note: A statement made with this inflection tells the jury that you either:  Already know the answer or  That you do not care for the answer and neither should they. 2. Rising inflection: This is the voice we normally associate with a question. It has the ability to tell the listener that:  There is more to come.  You have asked a question and you need an answer.

OTHER TECHNIQUES 3. Sustained inflection: This is a vocal pattern associated with a list.  It is best used when we do not want to give the impression that we have finished speaking.  It leaves the listener in suspense.  It makes the jury/court wait for what would be said next.

CONCLUSION  Opening statement and closing argument are recognized as the life line of any case;  An attorney must thus use all trial advocacy skills involved in the telling of the story:  The appropriate use of voice inflection;  Watching the body language.