Dan Small: A commonly cited rule is that opening statements are only intended to summarize the facts; no opening arguments are allowed. But like many rules, saying them often doesn't make them clearer or more understandable. In fact, for many lawyers, especially new ones, it is difficult to distinguish between fact and assertion. Perhaps this is because, firstly, there is no clear boundary between fact and argument, and secondly, the ban on argumentation is rarely strictly enforced. Most judges will say that the facts are what the evidence would be expected to show. Well, that's great. Arguments, at least in this context, are drawing conclusions from those facts and attempting to persuade the fact finder that those conclusions are correct. However, although we use facts to persuade, it is often difficult to discern the line between mere recitation of facts and forbidden argument.
Consider the following types of statements: All of these can appear at the beginning.
- Statement of Fact: It snowed that night.
- Reasonable inference from the facts: There are footprints in the snow, indicating that a man walked across the garden.
- Statement of Absence of Fact: There would be no eyewitness that Mr. Jones was near the scene of the robbery.
- Statements regarding competing versions of facts: Mr. Smith's version of events is contradicted by all other witnesses who were present.
- What about statements regarding the reliability of fact witnesses? Mr. Jones is not telling the truth about the accident.
- Statement of weight of fact or sufficiency: There is overwhelming evidence that he pulled the trigger.
- A statement that applies the facts to reach a legal conclusion: The facts do not apply to premeditated murder.
It's not easy to determine where the exact boundaries are. Whether something is argumentative or not often depends on subtle word choices, body language, and other things that aren't easily influenced by clear boundary rules.
Despite the prohibition, other types of speech are also common in openings.
- Rhetorical devices and metaphors: They were like two ships passing in the night.
- Appeal to universal experience: We've all been frustrated by our bosses.
- Legal Provisions: The law requires all persons to maintain their property in a safe condition.
- Emotional: Hearing this poor girl's tragic story will break your heart.
So what does this type of statement do in an opening statement if there is a ban on discussion? As a practical matter, juries need to understand what is at issue in order to understand the evidence . It's quite difficult to do that when all you can say is “It snowed.”
The truth is that almost all opening statements contain a lot of content, including a healthy amount of argument, beyond a mere summary or recitation of the expected evidence. In fact, there has probably never been an opening statement that did not include at least some level of argument. So what should I do?
- Whatever you do, keep it within reason. Don't do anything that makes it obvious what you're discussing. Be especially wary of inflammatory language and legal arguments. Opening statements are not the time to be reprimanded by the judge. The jury will pay attention and it will be remembered.
- Get to know the judges and courts. Regional differences are strong. What is allowed in some parts of the South may not be allowed in some parts of New England, or even within the same region. Different judges allow different levels of argument.
- To hide the argument, we use the old phrase, “The evidence will show that, etc.” Awkward as it may be, this word would cover a great many sins. “The evidence will show that Jones is not telling the truth'' is much more acceptable than “Jones is a liar.''
- Be especially careful if you are a prosecutor. Courts are very intolerant of the government's initiation of unwarranted arguments, for obvious reasons.
- And finally, remember that an overly aggressive opening statement may not be effective. If you're too aggressive, you can daunt the jury. Don't be too strong and risk losing it too soon.
In practice, rules about no arguments and no gaps often act more like guidelines than actual rules. Don't use rules as rigid or boring excuses. This is very important, so let me say it again. Too many lawyers take advantage of the no-argument doctrine and turn their opening statements into stiff, boring readings. But remember, there are rules. You don't want the judge to think you're wrong.
