THE OPENING STATEMENT - THE PREVIEW TO VICTORY OR THE BEGINNING OF DEFEAT? THE CLOSING ARGUMENT IN AN EMPLOYMENT CASE - HOW TO FINALIZE THE VICTORY

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1 THE OPENING STATEMENT - THE PREVIEW TO VICTORY OR THE BEGINNING OF DEFEAT? THE CLOSING ARGUMENT IN AN EMPLOYMENT CASE - HOW TO FINALIZE THE VICTORY Presented by: LEONARD COURT CROWE & DUNLEVY 20 N. BROADWAY, SUITE 1800 OKLAHOMA CITY, OK 73102

2 THE OPENING STATEMENT - THE PREVIEW TO VICTORY OR THE BEGINNING OF DEFEAT? THE CLOSING ARGUMENT IN AN EMPLOYMENT CASE - HOW TO FINALIZE THE VICTORY I. OPENING STATEMENT A. PRINCIPLES OF OPENING STATEMENT: Three principles of trial practice regarding opening statements are: 1. Never Waive the Opening Statement The opening statement is too important to forego. 2. Recommend Against Reserving the Opening a. In almost every jurisdiction, the judge will grant defendant's application to reserve opening until he presents his side of the case. b. There are two basic reasons for not reserving the opening statement: i. Juries Expect Symmetry Although they may not put it into words, the jury expects symmetry. If one side does something, they expect the other side to do the same thing. When you do not immediately follow the plaintiffs opening statement with your own opening statement, the sense of symmetry is destroyed. Reserved Opening Signals Lack of Certainty Juries know that if you reserve your opening, it is because you want to hear the other side's case first. This signals to the jury a lack of certainty on your part about your position in the case. This lack or certainty leads to a diminution of trustworthiness. 3. Listen to Your Adversary's Opening Statement a. Recognize a promise of proof that is made which may not be able to be fulfilled b. Take special note of that promise and write it down. c. Return to discuss that promise of proof in your closing argument.

3 B. PURPOSE OF AN OPENING STATEMENT: the appellate courts hold that it is not the purpose of an opening statement to argue the case nor to persuade the jury. However, everything a trial lawyer does is argumentative. So the art of using an opening statement is being able to use it to persuade the jury without seeming to make a closing argument. C. OPENING STATEMENT CHECKLIST: The following is a list of things you should consider to enhance the likelihood of persuading the jury that they ought to decide the case in your favor. 1. Prepare Opening Statement in Advance Nothing in a courtroom can be extemporaneous. The opening statement must be prepared and rehearsed in advance. 2. Have Total Knowledge About Your Case You must intimately know your case in every detail. 3. Deliver opening statement without note if possible. a. Talk to the jury. They do not want to hear a speech. b. Three reasons why the noteless opening statement is more effective than the "read" opening statement: i. This is a performance. The jury expects you to know your lines. i If you know what you are going to say, you can communicate with the jury. You do not want to let the jury see the extent to which you are prepared. You are aiming to communicate trustworthiness. If it appears that the opening statement is rehearsed, you communicate a lack of trustworthiness. 4. The Opening Statement Should Have a Beginning, a Middle, and an End a. General, the opening statement is telling a story. You should give the opening statement in a way a story is told. b. Say to yourself before you being, "Once upon a time..." Find the story in your case and tell it to the jury. c. Keep the language simple and direct.

4 5. Do Not Say Anything That You Cannot Prove 6. Admit Problems to the Jury. This will always work to your advantage. 7. Goals of an Opening a. Comprehension. Even if they hear only your opening statement, the judge and jury should understand what the case is all about. b. Credibility. You must show you are a credible source of information and ideas, worthy of being trusted and followed. c. Identification. You want the judge and jury to identify with your client, so they will look at the issues from his point of view. d. Support. You want the judge and jury to pull for your client so they actually hope the facts support your case. e. Impact. Your opening statement should make a strong enough impression that it will influence how the judge and jury look at the evidence as the case develops. 8. Have an Obvious Conclusion. Have an obvious conclusion to your opening statement. This gets you off your feet gracefully. II. CLOSING ARGUMENT A. OPENING COMMENTS: 1. Remind the jury of the importance of their oath. a. The case is to be decided on the evidence and not on sympathy. b. Neutralize the sympathy for the plaintiff. i. Acknowledge the feelings of sympathy for the plaintiff. Emphasize how the company tried to help the plaintiff. 2. Make the jury the "guardian of the facts." a. Explain that plaintiffs attorney is an effective advocate. b. Tell the jury that the defense has only one summation while the plaintiff has rebuttal. i. The defense will not have a chance to correct any exaggerations or misstatements.

5 Give examples of the plaintiffs attempts to mislead the jury. c. Ask the jury to be the "guardians of the facts" during the plaintiffs rebuttal. 3. Explain the burden of proof in laymen's terms. 4. Humanize the company. a. Do not refer to your client as the defendant. b. Refer to the names of supervisors, managers and others who were decision makers. B. REMEMBER THAT JURIES DECIDE CASES ON THE EQUITIES. 1. One role of closing argument is to help the jury justify its conclusion. 2. Stress the attempts by management to be fair and to help the plaintiff improve. C. ARGUE YOUR CASE. 1. Emphasize the themes of your case. 2. If you spend your argument in a defensive posture, then you will lose. 3. As best you can, do not attempt to destroy your opponent. a. Juries do not like to hear the plaintiff called a "liar." It is too harsh. b. Use terms such as "misstate" or "exaggerate." c. Find a way for the plaintiff to lose "with dignity". 4. Do not attach opposing counsel. Juries do not like personality assaults. 5. Discuss the evidence and credibility of the witnesses within the framework of the judge's instructions. a. Know whether the judge instructs before or after closing. If the judge instructs after closing, then "anticipate" the instruction. b. The jury will identify between the instruction and the argument. 6. BE FAIR AND ACCURATE!! a. Acknowledge your weaknesses and explain why they do not matter.

6 b. If the jury questions a lawyer's honesty on one issue, then it will be skeptical on all issues. 7. Comments on speaking style. a. Do not overuse notes or worse - read your closing. i. Keep eye contact with the jury. Talk with the jury not to the jury. b. Avoid the lectern if the judge allows you to do so. c. Use visual aids, but use them appropriately. d. Keep your hands empty to avoid distractions. D. CLOSING YOUR CLOSING - THE LAST MINUTES. 1. Summarize why your client wins. 2. Close by asking for a defense verdict. 3. Do not say - "Thank you."