Course Title: Evidence Professor: Charles Nesson Date: Winter 2007

Opening Statements Outline Note

FUNDAMENTALS OF OPENING STATEMENT Introduction The Opening Statement is What it Says Its a Statement of the Facts and Evidence You are Reasonably Sure will be Presented at Trial Its Not a Time to Argue How Law Should Be Applied to Facts Its Not a Time to Argue How Jury Should Rule 1st Opportunity to Speak with Jurors about Facts, Evidence and Law Must Provide Natural, Logical, Intelligent, Fair and Just Reason to Find for Client Must Tell Interesting Story that Captures Interest of Jurors Must Present Big Picture of Facts and Evidence so Jurors Understand Pieces as They Come In AnalogyIts like a jigsaw puzzle. If you dont first show the jurors the cover of the puzzle box, they will not know what the puzzle looks like. Thus, as the pieces are being put together during the case-in-chief, it will not make sense. If the jurors have seen the puzzle cover first (through opening), then the pieces of the puzzle have meaning as they are being put together. Must Convince Jurors in Opening People Naturally Want to Make Quick Decisions Decision will be Based on Common Sense and Experience, Especially More Complicated or Circumstantial the Evidence Jurors will Filter the Evidence Consistent with their Initial Opinions

Martin Levin Opening Statements--Outline Notes, Page 1

Course Title: Evidence Professor: Charles Nesson Date: Winter 2007

Preparation of Opening Development of Themes Crucial Before Writing Opening To Develop Themes must have Thorough Review and Understanding of all Facts, Circumstances, Admissible Evidence and the Law To Develop Themes Must Analyze the Strengths and Weaknesses of all Parties To Develop Themes Must Analyze How Opposing Counsel will Try His-Her Case After you have Themes, Write Draft Opening and Closing as Guideposts for Development of Other Aspects of Trial (such as Voir Dire, Examinations and Exhibits) The Opening and Closing will Help with a Concise and Consistent Presentation of the Case Length of Opening Statement Like All Aspects of Trial, the Opening Statement must be as Concise, Direct and Limited as Possible Limit the Facts and Issues in Trial to those Necessary to Win and Get Passed Directed Verdict and JNOV Forego Facts and Issues, even Where Helpful, if not Crucial to Themes This Does Not Mean Forego Minutia Important to Theme Also, in Massachusetts, Judge Can Direct Verdict if Opening Does Not Support Claim Jurors Expect Quick-Paced and Targeted Presentation at all Stages Think of Courtroom Television Show Presentations Cant Be This Simple or Direct, but Do Your Best Mass. Superior Court Rule 7 has 15-Minute Limitation on Opening Statement File Motion for Additional Time Effective Opening in Standard Case Runs 20-30 Minutes

Martin Levin Opening Statements--Outline Notes, Page 2

Course Title: Evidence Professor: Charles Nesson Date: Winter 2007

Managing Time Effectively Try to Avoid having Break After Your Opening Try to Break Early and Dismiss Jurors and Address Other Issues if Both Openings Cant be Completed before Lengthy Break If Necessary, Try to Present Short Summary of Opening after Lenghty Break Memorizing the Opening Read the Opening Script Several Times Begin Practicing it without Script, Just Referring to Outline Notes Rewrite Script as Necessary Practice from Outline Notes Sincerely and Truly Learn and Understand the Importance of Your Case and the Emotion it Should Create Utilize Effective Presentation of Voice, Pauses, Inflection, Gestures, Pitch, Range, Volume etc. Bring Only Outline Notes to Podium for Actual Opening Logical or Emotional Opening Virtually Always Logical Jury Not Yet Receptive to Emotional Argument Emotional Appeal is Much More Appropriate During Closing Some Cases are so Emotional Because of Facts that Opening will have Appropriate Emotion Attitude Must Have Winning Attitude Must Have Confidence you are Right

Martin Levin Opening Statements--Outline Notes, Page 3

Course Title: Evidence Professor: Charles Nesson Date: Winter 2007

Must Sincerely Believe Justice Requires you to Win This is Not Blind Confidence Its Confidence Developed by Knowing the Case Thoroughly and Having Winning Theme Must Feel Comfortable with whom You Are Utilize Your Personality, Demeanor and StyleDont Imitate Someone Else Sincerity Jury will Pick up on your Sincerity Sincerity comes from Honesty, Truth and Conviction Primacy v. Recency Strongest Points at Beginning and End of Every Portion of Presentation Opening, Direct, Cross, Case-in-Chief, Rebuttal Case, Closing, and Each Days Presentation Use Layperson Terms and Mental Images Avoid Legal and Technical Terms Use Common Terminology Whenever Possible Define Legal and Technical Terms when Necessary Use Mental Images, such as Pain as Intense as Hand Caught in Bear Trap Use of Analogies Very Effective when Analogy Obvious and Jurors will Understand and Relate Thereto Creation of Fraudulent RecordLike Criminal Running from Scene Be Prepared for Objection. If so, Say The Evidence Will Show that the Creation of a the Medical Record One Year After the Fact was Intentional and Demonstrates the Guilty Knowledge on the Part of the Hospital

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Course Title: Evidence Professor: Charles Nesson Date: Winter 2007

Rhetorical Question A Rhetorical Question is a Question that Answers Itself A Rhetorical Question is a Question without a Good Response Why Did Doctor Jones Create a Medical Record 1-Year after the Incident and Date it as if He Wrote it a Year Earlier Visual Aids Crucial to Maintain Attention and Focus of Jury, Especially in Longer Openings Often Crucial to Explain the Scene, Various Participants, Key Terms and Issues Visual Aids should be Concise, Focused and Easily Subject to Interpretation Get Opposing Counsel or Court Approval before Using in Opening Statement Some Courts Says Exhibits Must First be Admitted into Evidence Only Utilize when Clearly Necessary; e.g., Extremely Damaging Evidence Make Sure the Exhibit Cannot be Utilized by Opposing Counsel to Help His Case Humor Planned Humor is Never Appropriate in a Trial It Demeans the Importance and Formality of the Case It Makes the Jury too Comfortable with the Process to Give it Less Meaning This Does Not Mean that Occasional Unplanned Humor is Inappropriate. It Shows You are Human Law An opening statement is a statement of the evidence and issues to be presented during trial. Its not time to argue conclusions or inferences from the evidence. This is done is closing argument. You are not to make arguments or ask the jurors to draw conclusions from the evidence. This is what you do in closing argument. In opening you tell the entire story in narrative form, weaving in the facts and issues so that the jurors draw their own conclusions.
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Course Title: Evidence Professor: Charles Nesson Date: Winter 2007

Technically, attorneys are not supposed to review or discuss in detail the law or instructions during opening. This is true even for the burden of proof. However, courts differ greatly on this issue. You need to seek guidance from your judge before trial. You are not permitted to state personal opinions in opening or closing. This means you technically are not permitted to use terminology such as I think or I believe You are not permitted to discuss the other sides anticipated arguments. For example, you technically are not permitted to state: Wal-Mart is going to argue that Eddie Johnson had a fake identification, and he also had an adult with him who purchased the ammo. This phrasing is not proper because the defendant has no obligation to argue anything. Instead, you need to show as part of your narrative that Eddie Johnson did not have a fake identification, without mentioning specifically that Wal-Mart is going to argue that Eddie had a fake identification. You are not permitted to ask the jurors to put themselves in the shoes of the plaintiff or the defendant. This is a major violation. Its called a Golden Rule violation. Thus, you cannot state: think about what you would have done if you had been driving the truck and someone pulled in front of you. None of us in this courtroom would have made the left turn. We would have done the reasonable thing and waited.

FORMAT OF OPENING Initial Greetings: May it Please the Court, Counsel, Ms. Jones, and You the Ladies and Gentlemen of the Jury Attention Grabber: Like the Teaser for a Movie, Must Grab Attention so Jury Wants to See and Hear the Rest ExampleJennifer Cowart Sunday, June 21, 2002, Cowart as Happy as Ever Been She was 32 Found Her Six Siblings Put up for Adoption at 9. Siblings Spread Over 5 Families

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Course Title: Evidence Professor: Charles Nesson Date: Winter 2007

Adoptive Parents Died Raised by Relatives of Adopted Parents Two Years After Finding Siblings, Burns up in Fire Lives 1-Year in Hospital, so Disfigured, Two Children Not Permitted to See Her Attention Grabber is One Where Few Persons can Listen to it and Not Want to Know More Narrative Opening must be Told in Narrative Format Must be Told in Story Format Must Present as if Reading a Novel or Watching a Movie Write Your Opening and Let Others Read and Critique it. Do They Find in Interesting, Understandable and Concise Creating Expectations of Witnesses Condition Jurors for Strengths and Weaknesses of Witnesses Do Best to Paint Witnesses with Good and Evil Hats ExampleFriend Tells You Bob Jones is Loud and Obnoxious, but Most Caring and Honest Person Ever will Meet ExampleUneducated, No Confidence, and Limited IQ Witness Who Appears Scared and Inconsistent Examplethe Old-Time, Street Wise Doctor vs. the Younger, Book Smart Doctor Being the First to SpinStealing the Thunder Objectively Analyze Strengths and Weaknesses and Work them into Theme Address Weaknesses Head-On Try to Make Weaknesses Your Strength

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Course Title: Evidence Professor: Charles Nesson Date: Winter 2007

Example--Mr. Smith Never Walked-Out on His Family Despite his Harsh Life ExampleMr. Jones was Drunk as Any Person Alive. Why Couldnt Defend Avoid Him Never Hide From Your Weaknesses. Acknowledge Them and Explain Why You Get Verdict Despite (and Better Yet Because of) Weakness Explaining Importance of Decision Everyone Wants to be Part of Something Important and Unusual Come up with Unique and Unusual Feature of Case to Explain Importance ExampleExtra Large Venire ExampleLots of Pre-Trial and During Trial Publicity ExampleOut-of-Town Attorneys for Other Side ExampleNewly Discovered Evidence to be Admitted for First Time

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Course Title: Evidence Professor: Charles Nesson Date: Winter 2007

Mentioning Facts and Law Not Sure are Coming in If Not Positive Facts or Law Coming In, Dont Mention Them If They Dont Come In, Other Side Will Highlight in Closing SHOW SLIDE OF USING OPPOSING SIDES OPENING IN CLOSING Disclosing Spectacular Surprise in Opening If Other Side Can Explain Away Surprise by Preparing Witnesses and a Response, Dont Reveal It Addressing Damages in Closing Lawyers Disagree Some Believe You Need to Sell the Features Before Stating Price Others Believe Jurors Need to Get Prepared for High Awards I Dont State Amount of Damages Being Sought, Other Than Abnormally Large Economic FiguresMedical or Wage Loss I Do Discuss the Damages Incurred, Without Specifying a Figure Burden of Proof Civil Case--Plaintiff: Inform Jurors of Difference Between Civil and Criminal Burden Explain Greater Weight of Evidence vs. Beyond Reasonable Doubt Explain No One Going to Jail Its Like the Scales of Justice Put Each Sides Evidence on the Scale Which Side Does the Scale LeanNo Matter How Slightly

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Course Title: Evidence Professor: Charles Nesson Date: Winter 2007

Civil CaseDefendant Wait Until Closing and Emphasize Plaintiff has Burden of Proof and Must Prove His Case Reason Plaintiff has Burden is Because Plaintiff is Trying to Take Money from the Defendant Court System and Fairness Will Not Let You Take Something from Someone Else without Proving You are Entitled to it Criminal CaseProsecution Emphasize that State Does Have Burden Beyond Reasonable Doubt System is Set Up to Prevent Innocent People Going to Jail, and the State Having Such a Tough Burden is Good and Important The State Must Take this Burden Very Seriously and Only Bring Cases where there is No Reasonable Doubt The Issue, However, is Reasonable Doubt. The Issue is Not Whether Any Doubt Exist A Doubt or even Doubts Can Exist, as long as the Doubts do not Reach the Point of Being Reasonable ExampleA Person Can Admit to a Crime He Didnt Commit. There are a lot of Reasons this Might Happen. A Jury can have a Reasonable Doubt if the only Evidence is an Admission. However, if the other Evidence in the case, such as DNA, Eye Witnesses, and the Defendant Revealing Facts that only the Defendant could know, then there no longer is a Reasonable Doubt. Criminal Case--Defendant Emphasize State has Burden Beyond a Reasonable Doubt Not a Civil Case Where Burden is Greater Weight of Evidence This is not a Scale of Justice and Which Side Weighs More This Case is not About Taking Away Mr. Jones Money. Its About Taking Away his Freedoms. Its about Putting him in Jail

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Course Title: Evidence Professor: Charles Nesson Date: Winter 2007

This Country was Founded on Laws to Prevent Someones Freedoms from Being Taken Away The Founders of this Country Realized based upon the Abuses they Experienced in England that its Better for 9 Guilty Persons to go Free than One Innocent Person to be Sent to Jail This is why they came up with Beyond a Reasonable Doubt Standard All the times we hear of people being released from prison because DNA evidence shows they didnt commit the crime They have spent years in prison, and didnt commit the crime The reason the system failed in those cases is because there was a reasonable doubt but jury still convicted The jury convicted because they naturally wanted someone to be punished for such a horrendous act. This is a natural response Law enforcement, prosecutors, juries and society wants someone to be punished for every wrong act. It makes people, however, rush to a judgment Must make sure that a person truly and unconditionally is guilty before we take away freedom Presentation of Opening Statement in Cowart v. Johnson Kart

Opening Statement Class Reading:

Levin & Papantonio, The Fundamentals of Opening Statement (Course Book-24) Levin & Papantonio, The Format of Opening Statement (Course Book-25) Levin & Papantonio, Issues that Might Arise in Opening Statement (Course Book26) Edward M. Swartz, Trial Handbook for Massachusetts Lawyers, Opening Statements, Chapter 7, pp. 219-225 (3rd ed., West Group, 1999 & Supp. 2005), Call Number KFM2938 .S95 1999 William C. Flanagan, Trial Practice, Vol. 43, Massachusetts Practice Series, 10.2 pp. 231-233 (Thompson-West 2005), Call Number Mass Practice Series v.
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Course Title: Evidence Professor: Charles Nesson Date: Winter 2007

43 available with Reference Librarian Reference Material: Smith v. Wal-Mart, Opening Statement and Outline (Course Book-27)

Class Assignment: Due Monday March 26

You are representing Robert Brown against Free Health Services, Inc. Create an

opening statement. Limit your opening to four pages single spaced.

Examination Class Reading:

Evidentiary IssuesFed. R. Evid. 105-106, 201, 401-403, 611(a), 614-615, 801807. Direct ExaminationFed. R. Evid. 611(c), 612, 701, Thomas A. Mauet, Trial Techniques Ch. V pp. 95-165 (6th ed., Aspen Publishers, 2002) A. Rosenfeld, Legal Ethics of Coach Witnesses: how far can you do? (Mass. Lawyers Weekly, Sept. 25, 2006) (Course Book-28) ExpertsFed. R. Evid. 702-703, Thomas A. Mauet, Trial Techniques Ch. VIII pp. 309-400 (6th ed., Aspen Publishers, 2002) ExhibitsFed. R. Evid. 901-902, 1001-1008, Thomas. A. Mauet, Trial Techniques Ch. VI pp. 167-246 (6th ed., Aspen Publishers, 2002) ObjectionsFed. R. Evid. 103(a); Thomas A. Mauet, Trial Techniques Ch. X pp. 463-497 (6th ed., Aspen Publishers, 2002) Cross-ExaminationFed. R. Evid. 404-405, 607-609, 611(b), 613, Thomas A. Mauet, Trial Techniques Ch. VII pp. 247-307 (6th ed., Aspen Publishers, 2002) Order of ProofMass. Dist. L.R. 43.1(b) Directed VerdictFed. R. Civ. P. 50, 59 Reference Material: Smith v. Wal-Mart, Direct Examination of Tom Bryant (Course Book-29)
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Course Title: Evidence Professor: Charles Nesson Date: Winter 2007

Smith v. Wal-Mart, Cross-Examination of Ken Clay (Course Book-30) Mo Money v. Gateway, Witness List (Course Book-31) Mo Money v. Gateway, Exhibit List (Course Book-32) Smith v. Wal-Mart, Order of Proof (Course Book-33) Smith v. Wal-Mart, Motion for Directed Verdict (Course Book-34)

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