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Opening Statements

 

It is commonly understood that what an individual hears first concerning a subject of interest carves into the memory a lasting impression forming the framework upon which all the rest of the opinion on a given issue will hang. In fact, one experienced litigator, Weyman J. Lundquist, writing for the American Bar Association’s Litigation Manual, writes that, “opening statements determine the outcome of trials 50 percent of the time.” [3] Lundquist adds, “Studies indicate that it may be as much as 85 percent of the time. …Opening statements give the jury a basic feeling for who is right and why, who has the better facts, what is the logical result. The first impression is not often changed.”

 

In the hands of a skilled presenter, the opening statement can go much further than merely outlining a case on its merits. It can also create an atmosphere of favorable inclination toward the plaintiff. Or, for the defense, a strong opening statement can collapse the spirit of goodwill the plaintiff is working to create and cast the claims of the plaintiff in a skeptical light.

 

The plaintiff begins and the defense follows the plaintiff.

Plaintiff / Defense Presentation

 

Direct Examination:  On direct, the plaintiff calls witnesses who are supportive and presenting supporting documents and other evidence and expert witness testimony to lay in the factual flesh and blood of the claim. This phase may offer a handful of facts or thousands of them, depending on the case’s complexity, but all of them should actively relate to and reinforce the main themes of your case.

 

The plaintiff opens the examination phase of trial while the defense cross-examines witnesses.

 

Cross-Examination:  The objective of cross-examination, quite simply, is to impeach the testimony of the witness. One of the most effective tools to do that is the deposition. At trial, witnesses are cross-examined, illustrating inconsistencies between their direct testimony and their depositions to attack their credibility.

 

Inconsistencies in affidavits, sworn testimony and statements, claims, applications, all can impugn the testimony of a witness.

 

Objections:  Since the plaintiff presents direct examination first the defense is given first crack at objections. Objections can shift the pace of a trial and call a jury’s attention to key areas in a case and otherwise offer an opportunity to impugn a litigant’s evidence.

Types of objections include those on the grounds of hearsay, privileged information statutory exclusion, relevance/materiality.

Final Arguments

 

Like the opening statement, the closing argument is key a component to any effective trial presentation. This is the deal closer, when all of the different aspects of the case, the divergences, all the loose threads of evidence and testimony are bound together and wrapped into a strong, compelling argument. This is the time to sum up and reiterate for the last time the themes of the case.

 

The evidence is touched upon again – lightly – to reinforce its weight, but not to reargue its merit. The standards of proof are reinforced, to show how the weight of evidence exceeds that standard.

 

Lastly, the jury is empowered to decide the case and the litigant after a simple, yet compelling close, nods toward the panel and returns smartly to his seat to confidently await the outcome of deliberations.

 



[1] How and When To Be Your Own Lawyer, Robert Schachner, Marvin Quittner, Avery Publishing Group, Inc., 1993.

 

[2] How and When To Be Your Own Lawyer, Robert Schachner, Marvin Quittner, Avery Publishing Group, Inc., 1993.

 

[3] Litigation Manual, American Bar Association, Weyman J. Lundquist

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