Term
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Definition
| your side's version of "what really happened"; should incorporate all the uncontested facts as well as your side's version of the disputed facts; it must be logical, fit the legal requirements, be simple to understand and consistent with the juror's common sense |
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Term
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Definition
| no more than three or four themes; examples: "everything that happened here happened because of greed"; "revenge. that's what this case is all about" and labels: e.g. defendant's two-ton truck vs "our delivery van" |
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Term
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Definition
| should convey theory of case, themes and labels |
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Term
| four elements to effective storytelling in openings: |
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Definition
1. focus on the people, not the problem (humanize them)
2. must be vivid and recreate for the jury the events that happened
3. must organized in a simple, logical way (usually chronologically works best)
4. give the jurors a preview of coming attractions; preview of important testimony heightens their anticipation and keeps attention going throughout trial |
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Term
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Definition
| must do this; in personal injury, often just ask for liability and wait till closing to ask for specific number amount |
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Term
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Definition
research shows longest time period most persons can maintain a high level of concentration is 15-20 minutes; repetition (three or four times) significantly aids memory
should be 10-30 minutes; should select memorable themes, touch on fewer details; focus on your most important facts and phrases and repeat them three or four times |
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Term
| do not state/argue personal opinions |
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Definition
| arguing during opening does not persuade; good facts which create memorable mental pictures have more impact |
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Term
| "I believe" "I think" "we believe" |
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Definition
| state personal opinion and are usually objectionable in any phase of the trial; also are not persuasive ways to present things to the jury |
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Term
| do not overstate the evidence |
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Definition
| juries will remember this and no longer trust you; err on the side of caution |
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Term
| how to present weaknesses |
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Definition
1. only do so if you know your opponent will bring them up
2. key is to mention the weakness without emphasis and to present it in its least damaging light, when it will blend easily into the story |
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Term
| requirements of prima facie case |
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Definition
| in some jurisdictions, plaintiff must present an opening that lays out prima facie case, in others there is no opening statement requirement |
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Term
| content of effective opening |
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Definition
1. introduction (themes, labels, theory)
2. parties
3. scene
4. instrumentality (car, machinery etc. should be described in as much detail as parties)
5. date, time, weather, lighting
6. issue
7. what happened
8. basis of liability/nonliability/guilt
9. anticipating or refuting other side
10. damages (civil case)
11. conclusion |
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Term
| traditional test to determine whether something is argument |
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Definition
| only if a witness will testify to it can you say it in opening statements; NOTE: most courts today allow reasonable latitude and recognize that themes and other devices that grab attention should be allowed because they help jurors understand the positions of the opposing parties |
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Term
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Definition
| this is usually only brought out by defense - this where defense denies plaintiffs version; how you do this is critical, you must force the jury to get away from plaintiffs version of the facts directly and with conviction and keep an open mind about your evidence |
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Term
| basis of liability/nonliability guilt/nonguilt |
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Definition
as P, this is high point: you want to make a summary of the facts and conclude that your client is entitled to win
as D, sometimes better not to directly challenge the P's ability to prove certain facts; safer approach is to suggest that P's picture of events will not be persuasive and then emphasize your own picture and conclusion |
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Term
| plaintiff discussing defense's case |
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Definition
| plaintiffs in civil cases for legal and advocacy reasons cannot directly state what the anticipated defense evidence will be because defense doesn't have to present evidence; key is to defuse the defense without appearing defensive |
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