The Alpha and the Omega: Effective Advocacy in Opening Statements and Closing Arguments
By David T. McKenzie and Marcy Fassio
“When planning victory according to my counsel, act according to the situation and make use of external factors. To act according to the situation is to seize the advantage by adapting one’s plans … A victorious leader plans for many eventualities before the battle; a defeated leader plans for only a few. Many options bring victory, few options bring defeat, no options at all spell disaster.”
The Art of War
“Now, gentlemen, in this country our courts are the great levelers. In our courts all men are created equal. I’m no idealist to believe firmly in the integrity of our courts and our jury system. That’s no ideal to me. That is a living, working reality.”
To Kill a Mockingbird
The wisdom of Sun Tzu and Atticus Finch is an absolute truism for lawyers who make their living standing in front of a jury advocating for their client, be it in the criminal or civil setting. Not unlike the actor Gregory Peck, in preparing for his Academy Award-winning portrayal of Atticus Finch in To Kill a Mockingbird
, the key to success is preparation, practice and planning. Equally necessary is the calm contemplation that occurs during that critical alone time we have as lawyers, when we are left with only our thoughts and worries about how to help someone who has entrusted their life to us. Much of a trial lawyer’s life is spent in the same position as Rodan’s “The Thinker.” It is a lonesome, worrisome and difficult existence at times. A jury trial is hard work and demands the utmost focus and analytical thinking. Success with a jury is more likely with aggressive, creative and innovative lawyering.
Great trial lawyers have tried the case in their mind many times before ever setting foot in the courtroom to face a jury. They have critically analyzed the weaknesses in their case and know how to address them. Conversely, they have found all the strengths in their case and know how to exploit them. The question is: How do we prepare to adequately and effectively protect the rights of our clients and develop a strategy so our client’s story can be told most efficaciously?
THE ALPHA: OPENING STATEMENT
Studies have shown that up to 80 percent of jurors have made up their minds about how they will vote by the end of opening statements.1
For this reason, an opening statement is one of the most important aspects of any jury trial, and you must begin framing your case at the outset of representation.
Be frightened by what you do not know because the lack of knowledge of either the law or the facts can cause a disastrous end for your client. Accordingly, from the moment you meet your client until the time you stand before a jury, setting forth the road map for your case in your opening statement, you are on a constant quest for enlightenment and answers to unanswered questions. In other words, you must first question everything about a case and then seek to answer those questions.
That quest for enlightenment should begin with reading and studying the jury instructions, not on the morning of your closing argument, but immediately after being retained to represent a client. The purpose of the jury instructions is to enable the jury to apply the facts they have heard in the trial to the law and “reach a true verdict.”2
The jury instructions set forth which party has the burden of persuasion, the standard of proof and the elements which must be proven or defeated to prevail. They are the commencement point to investigate our client’s cause, to recognize the strengths and weakness in our case and to deliver a powerful opening statement to the jury.
Opening statements are solely for the purpose of illustrating to the jury the expected evidence they will hear regarding the plaintiff’s case or the defense to be offered by the defendant. Be mindful of the term “opening statement.” It is not for the purpose of arguing the merits of the cause, but simply a field guide to the evidence. To paraphrase Jules Winnfield in the classic movie Pulp Fiction
, the judge “will strike down upon thee with great vengeance and furious anger those who attempt to” interject argument into their opening statement. Opening statements should be delivered to evoke in the minds of the jurors a theme and story consistent with the theory of prosecution or the theory of defense.
For example, an appropriate approach for opening statement might include, “During this trial, you will hear from many witnesses who will tell you that John Smith owned a 2012 Honda Accord, and that he was drinking on the night of April 18, 2015. However no witness will testify they saw Mr. Smith driving the vehicle while he was intoxicated.” This is a specific, factual statement about what evidence will, or will not, be presented. On the other hand, it would not be proper in opening statement to argue to the jury that, “There is no evidence that Mr. Smith was driving under the influence of alcohol that night and, as such, the state cannot meet the burden to prove Mr. Smith guilty.”
Comments during opening statement regarding the strength of the case are argument and improper. Further, an attorney must be vigilant to only comment on admissible evidence.3
Many pitfalls can be avoided by being well versed in the Oklahoma Evidence Code, the Federal Rules of Evidence and the local rules of the court where a case is being tried. The practice of interpolating personal comments or observations about the facts of the case is strictly prohibited in both civil and criminal proceedings.
Unless an exhibit has been pre-admitted prior to opening statement, it is improper to display it to the jury.4
However, it is permissible to use demonstrative aids in opening statement if the aid is not misleading and you obtain prior approval from the trial court. Demonstration aids are incredibly useful as a tool to create a vision in the jurors’ minds, especially when used in juxtaposition to the words being articulated to describe the event which is the subject of the litigation. For example, showing a weapon to illustrate how an injury was caused, a map to illustrate the relationship of various locations or a DNA chart to help explain the science of genetic identification can prove immensely helpful in getting a jury to view the evidence from your client’s perspective at the outset of the trial. Additionally, demonstrative aids can be helpful as a device to keep your opening statement on track, focused and sharp.
The key to giving an effective and influential opening statement is to have complete command of the facts without the assistance of notes. Actualizing an opening statement without notes allows a lawyer to show the jury that he or she completely knows and understands the evidence better than his or her opponent. In an opening statement, we are conveying to the jury that our message is the one to believe and complete knowledge of the facts is the ultimate means to demonstrate we should be trusted. As we all learned as children in the book The Big Bad Wolf
, if you cannot believe the messenger, you cannot believe the message.
The art of opening statement is the same as the art of storytelling. Tell your client’s story in a conversational manner, as if you were recounting a noteworthy event to a friend. In other words, talk to the jurors like people. The most efficient way to tell your client’s story is to do so in a linear manner. Start your opening statement with two to three sentences to grab the jury’s attention. Then, tell your client’s story from the beginning, avoid jumping around the timeline and progressively advance to the end of the story. Use words that empower and create a visual scenery.
THE OMEGA: CLOSING ARGUMENT
All of the evidence has been delivered to the jury, and the judge has instructed them as to the law to apply to the facts. Now comes the closing argument. What do you say to the jury to prevail? As opposed to opening statement, in a closing argument you are analyzing the evidence and portraying to the jury how your position should prevail based on the evidence presented during trial. It is important to remember a jury trial is a living, breathing thing. Matters that seemed important when you were preparing for trial sometimes become inconsequential. The art of closing argument is the art of observation and adaptation. Most of the time, preparing a closing argument before trial is an exercise in futility. However, preparing a closing argument during trial is a necessity. Each evening, at the end of the trial day, review your notes and begin pondering about your closing argument before you begin preparing for the next day’s witnesses.
Closing argument is your opportunity to paint a clear picture to the jury of the verdict they should return. Give your closing argument with a clearly articulated theme. Do not shotgun or throw everything “against the wall” to see what sticks. Your theme has been delivered once to the jury in your opening statement, and closing argument is your opportunity to show them you have delivered on the promise you made in opening statement. Closing argument is also the opportunity to pounce on any unfulfilled promises of the opposing party. For example, if opposing counsel told the jury in opening statement they would present medical evidence showing their client exercised proper care, and they did not deliver this evidence, reminding the jury about this failure to deliver can be very powerful; casting doubt on your opponent’s words while highlighting your credibility.
Be mindful of your role as a professional, ethical advocate and exercise the proper decorum. Remember, you are a lawyer, an officer of the court, so act like one. The jury has watched every move you have made, whether you know it or not, since they walked into the courtroom before the beginning of jury selection. Closing argument is not a time to lose the trust you have built over the course of the trial.
One of the primary goals of a successful closing argument is to use the OUJIs (Oklahoma Uniform Jury Instructions) to your advantage. In a trial, the plaintiff/prosecution must prove each element of each allegation. Use the jury instructions, which enumerate the required elements, and apply the evidence to each element to argue and convince the jury the elements either have, or have not, been proven.
The right to deliver a closing argument has limits. A lawyer may not go outside the evidence that was presented to the jury.5
You are allowed a great deal of latitude regarding the evidence and legitimate inferences,6
deductions and conclusions that can be drawn from the evidence.7
Misstating what the evidence is, even inadvertently, is improper and will lead to an objection from your opponent and possibly the trial judge. If you are not sure what the testimony was regarding a particular question or sequence of questions, feel free to ask the court reporter during a break if he or she could recite that portion of the record for you. If you are not sure of the testimony and unable to get clarification from the court reporter, it is best to refrain from that point. Additionally, vouching for the credibility of a witness is improper because the court has instructed the jury twice, once in its opening remarks and once in the final jury instructions, that they, and they alone, determine the credibility of the witnesses.8
Arguing in a manner which is intended to enflame the jury is improper, as is name-calling.9
Stay within the evidence and suggest only reasonable conclusions that should be extracted from the evidence. Do not attack the integrity of opposing counsel or express any personal opinion as to the strength or weakness of the case.
Closing argument is your opportunity to utilize the exhibits and show the jury how said exhibits are consistent with your theory. Nothing drives home a point better than the exhibits. They are powerful, they are real and they are yours to use in your closing argument.
It is proper to use notes during your closing argument. However, do not write a script and read from it. Your notes should be limited and ultimately consist of the important points which promote your theory of the case and your generalized theme. Closing argument is always more heated than opening statement because you have just spent the last few days battling for your client tooth and nail. Notes are important so that crucial points are not missed. As in opening statement, be linear in your delivery. However, you can be linear in one of two ways. You can tell the story as it chronologically developed or you can tell the story as it was presented witness by witness. Both of those methods are equally effective.
Your closing argument will most likely also need to incorporate aspects of rebuttal. The plaintiff/prosecution will deliver the first closing. Then the defense will follow with their closing argument, which will necessarily need to address the things said by opposing counsel. Knowing your case seamlessly will help you in being able to think on your feet to address things that need to be corrected, clarified or given an alternate explanation. The third and final closing will then be delivered by the plaintiff/prosecution. As such, no matter which side you are on, one of your closing arguments will follow the argument of the other side, so a well-crafted rebuttal is necessary.
Closing argument is your very last opportunity to address the jury, so you must make it count. Make your closing argument resonate in the juror’s ears as they file into the jury room to contemplate a just verdict. Be sure to make appropriate (do not stare) eye contact with jurors. Tell the jury what you want them to do and how the law and evidence supports that course of action. If you want something specific — a not guilty verdict, a particular sentence or a judgment of a certain dollar amount – tell them. Never assume a juror knows what you want them to do.
Remember jurors are people — and the vast majority of them want to do the right thing. Your job in closing argument is to walk them through the legal field from your client’s perspective, showing them why the verdict you are asking them to deliver is the right and just verdict. You may be asking them to do something very difficult, like sentencing a man to death or returning a not guilty verdict on a child abuse charge. Thus, you must use the law and the evidence persuasively to give them the strength and courage to deliver that verdict.
2. Oath to the Jury — Do you, and each of you, solemnly swear/affirm that you will well and truly try the issues submitted to you in the case now on trial and reach a true verdict, according to the law and evidence presented to you. (so help you God?)/(this you do affirm under the penalties of perjury?) OUJI-CR 1-7, OUJI-CIV 1.3.
3. Newsted v. State, 1986 OK CR 82, 720 P.2d 734 (Okla. Crim. App. 1986). Trial practitioners should be mindful of the trial court’s rulings on Motions in Limine. Any mention of evidence that has been ruled inadmissible by the court or referring to witnesses who will not testify is strictly prohibited. See also Omalza v. State, 1995 OK CR 80, 911 P.2d 286 (Okla. Crim. App. 1995).
4. Cheatham v. State, 1995 OK CR 32, 900 P.2d 414 (Okla. Crim. App. 1995).
5. Scott v. State, 1945 OK CR 48, 158 p.2d 728 (Okla. Crim. App. 1945).
6. Aid jurors by encouraging them to draw inferences of their own and use their common sense, spelling out those inferences that are helpful to you. Every case will have gaps in the evidence. Showing jurors that the law allows them to fill in these holes with reasonable inferences can help you connect necessary dots. OUJI-CR 9-1 provides, “You should consider only the evidence introduced while the court is in session. You are permitted to draw such reasonable inferences from the testimony and exhibits as you feel are justified when considered with the aid of the knowledge which you each possess in common with other persons. You may make deductions and reach conclusions which reason and common sense lead you to draw from the fact which you find to have been established by the testimony and evidence in the case.”
7. McCauley v. State, 198 OK CR 25, 750 P.2d 1124 (Okla. Crim. App. 1988).
8. Charm v. State, 1996 OK CR 40, 924 P.2d 754 (Okla Crim. App. 1996).
9. Wilson v. State, 1998 OK CR 73, 983 P.2d 448 (Okla. Crim. App. 1998).
ABOUT THE AUTHORS
David T. McKenzie is of counsel with the Oklahoma City firm of Mulinix, Edwards, Rosell & Goerke. He is an adjunct professor of law at the OCU School of Law and is the current chairman of the OBA Criminal Law Section. Mr. McKenzie is the recipient of the Clarence Darrow Award, Barry Albert Award, Professional Advocate of the Year Award and both the OBA Maurice Merrill Golden Quill and Earl Sneed Awards.
Marcy Fassio is the founding member of Fassio Law PLLC in Oklahoma City. She has been practicing criminal law exclusively since 2005. She received her J.D. with distinction from the OU College of Law in 2005, where she was a member of the Oklahoma Law Review
and the Dean’s Honor Roll. Upon graduation, Ms. Fassio was an assistant district attorney in Oklahoma County for 10 years. She now practices criminal defense in the Oklahoma City metro area.
Originally published in the Oklahoma Bar Journal --
OBJ 87 p. 2309 (Nov. 19, 2016)