Cross-Examination: Chapter 13

THE RELATIONSHIP OF OPENING STATEMENT TO CROSS-EXAMINATION

A proper opening statement not only introduces the advocate’s theory of the case to the fact finder, but also initiates the process of persuasion by familiarizing the fact finder with the most important chapters of the cross-examination to come.

The critical chapters of the advocate’s direct-examination should also be highlighted in the opening statement.

The trial lawyer has lived with the case far longer than the judge.  The opening statement can aid the judge in appreciating the reasoning behind the various chapters of cross-examination.

The opening statement is a far more valuable a persuasive tool than the closing argument.  The first impression in front of the jury is the most important opportunity to tell the theory of the case to the fact finder.

Strong opening statements are designed to persuade, not to give an impartial overview of the evidence.

The credibility of the lawyer and her witness is paramount to persuasion.  The opening statement should condition jury to believe or disbelieve the witnesses they are about to hear, before those witnesses ever take the stand.

Common experience outside the courtroom teaches that when people must stop for directions, they believe and are therefore willing to follow direction that are clear and detailed.  Whose directions would the listener confidently follow?  Who would the listener ask directions from? Transport this scenario to the courtroom.

Opening statements are a vehicle to sell the advocate’s theory of the case, enhance the credibility of the advocate’s witnesses, undermine the opponent’s theory of the case, and attack the credibility of the opponent’s witnesses.

The advocate need not discuss every witness or every issue in the opening statement.

The value of an opening statement is measured by the degree to which it causes an individual fact finder to prejudice or, in the case of a more cautious juror, to favorably consider the merits of the lawsuit from the advocate’s point of view.

A successful case cannot be premised purely, or even largely, on an emotional pitch. It is difficult to maintain a particular emotion up to the time that the jury actually votes.

In non-jury trials the same rules apply, maybe even more so.

Three Rules of Opening Statement

1. Construct the opening statement around the lawyer’s theory of the case

2. Base the opening statement on chapters of witness examinations

3. Present fact-intensive descriptions of the events that create pictures, not generalizations.

It is important that fact finders understand the theory of the case before witness examination begins because it is the theory of the case that gives directions to the cross and the direct examinations.

The proffering of multiple pertinent facts followed by the repetition of theme and lines is an effective way of persuasively presenting a jury with the theory of the case and familiarizing them with the facts that support the theory.

In preparing to examine witnesses by chapters, the lawyer has automatically outlined the opening statement.

A trilogy technique can be utilized in opening statement and closing arguments as well as in cross-examination. It is important to remember that trilogies seldom occur naturally and should often be scripted before trial.

In order to effectively use loops in an opening statement, the lawyer must have decided that certain words and phrases are helpful to her theory of the case and has planned to emphasize them through the looping in cross-examination.

A preemptive strike at opening statement is important when revealing opponent’s inconsistencies.  Telling the fact finder about the important inconsistencies will serve to weaken the credibility of the witness before the witness even takes the stand.

The cross-examination techniques of voice, movement, and emotion have equal application to opening statements. The advocate must guard against expressing so much emotion in the opening statement that the opponent makes the objection “argumentative”. Low emotion, a quiet voice, and subtle and confined gestures are generally most effective.

The most common objection in opening statements is that the advocate is “arguing” the case.  By giving fact-intensive, well-organized (by chapters), theory-driven opening statements based on the chapter method, there is no need to resort to generalities, conclusions, legalisms, or opinions.

Never waive your opportunity to give an opening statement. Some lawyers argue it is an effective way to hide the strengths of your case from the opponent.  However, by allowing the opponent unchallenged access to the jurors’ minds in opening statement, the lawyer has unnecessarily promoted the opponent’s credibility.

Trials do take unexpected turns.  When there are new developments in the case, a new closing must be prepared.

The closing argument will look very much like the opening statement, but will be given even more persuasively, by supplying conclusions, advancing counsel’s interpretation and inferences (no opinion), and giving the jury the benefit of memorable phrases and words drawn from the testimony.

If the cross-examiner intends to use demonstrative exhibits within the cross-examinations, strong consideration should be given to the use of those exhibits within the opening statement.

If there is a doubt the judge will permit it, ask in advance.

Strong demonstrative exhibits do what the name implies:  They demonstrate an important concept by pulling together facts that may come from many witnesses or documents.  There are other occasions in which the demonstrative aid will not be used in cross-examination, but can be effectively and ethically used in the opening statement.

Timelines are one of the best and most frequently employed examples of a demonstrative exhibit.

A timeline is often used to orient the witness and fact finder to where the fact fits into the sequence of important facts.  It is not in and of itself an admissible document.

The opponent can be expected to try to block the use of the time-line as an inaccurate statement of the facts or based on speculation of what the testimony will show.  To ensure the ability to use the timeline, show the evidentiary source of the timeline for each of the items displayed.

Samantha@ambroselawgroup.com

To see trial skills in action visit our website www.thetrialprofessor.com

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