Opening Statement
& Jury Argument
A CCJA Learning-by-Doing Course
in Courtroom Persuasion
Copyright 2004 Ray Moses
All Rights Reserved
I ain't got the words!
Even our foremost political thinkers suffer from foot-in-mouth-disease (linguistic deficit, verbal challenge).
"Your argument is sound ... all sound."
Billy: You have to see the Gambinis in action? I mean, these people, they love to argue. I mean they live to argue.
Stanley: My parents argue too. It doesn't make them good lawyers.
Billy: Stan, I've seen your parents argue. Trust me, they're amateurs.
Trial lawyers spend a goodly portion of their legal lives preparing and making jury speeches. To function effectively in the courtroom, you'll have to learn what to say, how to say it, and when.
Opening statement is the takeoff, and jury argument is the landing.
You've got to be there for both of 'em.
Great openings and closings are about content, design, and delivery.
Communicating well with your jurors ... it's the hallmark of persuasive lawyering at opening and closing.
Talking and eloquence are not the same: to speak and to speak well are two things.
A fool may talk, but a wise man speaks.
Benjamin Jonson
The arguments that students are taught to make in law school classes, the unreasonable kind about how many fairies can dance on the head of a pin,
are not the arguments that top lawyers make to juries at the courthouse.
Our Class - A Blended Learning Event of Study, Performance, and Reflection
Do you want to be able to deliver a jury speech with the eloquence of sagacious Atticus Finch in Harper Lee's To Kill a Mockingbird? Maybe you identify more with the energetic Matthew McConaughey in John Grisham's A Time to Kill or redeemed Paul Newman in The Verdict. During spring of the upcoming year - 2009, CCJA will conduct a litigation skills course on the subjects of Opening Statement and Jury Argument, AKA "Opening and Closing." The primary goal of the course is enrich your ability to project confidence, competence, and credibility in opening and closing your jury trials when you speak on (not "in") behalf of your client. In the process, we'll boost your skill in planning and preparing your message for courtroom presentation. The focus will be on development of analytical, forensic, and technical skills that successful trial lawyers must master to convince jurors to accept a point of view and persuade them to return a favorable verdict. Unlike traditional law school classes where you are rewarded with high grades for making every conceivable legal argument, we will be looking for the right arguments, the kind that appeal to common sense and don't insult the juror's intelligence.
We will concentrate on these aspects of the jury speeches that open and close trials:
- Deciding what our goal is (Intention)
- Figuring out which arguments support our goal (Warrant)
- Determining what order to say it in (Sequence or Arrangement)
- Remembering what to say (Memory)
- Saying it well (Style or Delivery)
- Accompanying our jury speech with persuasive non-verbals (Kinesics)
The approach, described further below, will combine collaborative learning, reading, class discussion, fieldwork, simulation, and critique.
Skill-Building Methodology
In the simulations, we'll employ the "learning-by-doing" method, putting skills into practice. Ours is a four-step process that allows us to learn from our mistakes. Step One is to study and read about the techniques we are trying to master. Step Two is to perform the techniques. Step Three is to reflect upon the way we performed the techniques and learn to spot and correct mistakes. Step Four is to integrate what we have learned into our practice. In this mode, experience truly can become the best teacher.
We'll study the psychology of persuading jurors and the legal constraints that courts place on what can be said in opening and closing. We'll delve into the art and science of storytelling, theme (the recurring representation that characterizes your case) building, and argumentation in a hands-on manner, using videos of real trials as our case models. We'll focus on analyzing and critiquing modes, strategies, and styles of audience-centered argumentation, including, choosing powerful language and non-verbal skills that empower, motivate, and involve jurors.
The approach will be both collaborative and competitive. Class members will be working with one another in 4-person (mini-law firm) teams. The learning will be participatory and practical. Lectures will be kept to a minimum. Everyone in the class will have the opportunity to deliver opening statements and jury arguments. We'll explore the use of convincing visuals during opening and closing. Among other things, you'll learn how to be more precise and compelling in expressing your case, how to confute (conclusively refute) and/or refute your opponent's argument, and how to appeal to your juror's emotions without being syrupy.
Use of Trial Story DVDs as Real-World Models for Preparing and Delivering Openings and Closings
As one basis for learning to prepare and deliver openings and closings, our class will use a series of edited DVD Trial Story vignettes. Each trial story contains the actual direct and cross-examination of a real contested criminal trial. The alleged crimes and defenses differ in each Trial Story. We will use different Trial Stories each semester. In the upcoming course, we'll focus on the following four Trial Stories: Trial Story One is a case of alleged statutory rape by a 34 year-old female special education teacher on a 16 year-old male student. Trial Story Two is a manslaughter case in which a neighborhood baby sitter is charged with causing the death of an infant by angrily shaking the child. Trial Story Three is a manslaughter case in which a 17 year-old male was shotgunned to death on the front porch of the accused whose yard had been "wrapped" by Halloween pranksters. Trial Story Four is an injury to a child case based on an allegation of the defendant's reckless omission to seek treatment for her son, who had been provided with a lethal dose of alcohol by the defendant's boyfriend.
The Trial Story DVDs will provide the substance for the live presentations of openings and arguments by class members. At various points (Weeks Three, Six, Nine, and Twelve) in the semester, each class member will have the opportunity to make a complete opening statement or jury argument for the prosecution or the defense. By the end of the course, you will have made a prosecution opening, a defense opening, a prosecution argument, and a defense argument. DVDs of the direct and cross of each Trial Story will be provided to each class member several weeks before oral presentations of openings and closings for that particular case. The Trial Story DVDs initially provided to you will not include the actual opening and closing delivered by the real-life attorneys in the crime story. After presenting our openings and closings for a Trial Story, we will have the opportunity to view the actual openings and closings given by the real prosecutors and defenders in the case and reflect on how our efforts approximated or deviated from the actual openings and arguments. These exemplars of actual openings and closings will serve as a focal point for discussion, critique, and self-analysis. While practicing won't make you perfect, it is guaranteed to make you more confident in your ability for critical thinking, designing and delivering persuasive jury speeches, and exhibiting grace under pressure.
Critical Study and Analysis of Actual Openings and Jury Arguments by World Class Lawyers in Famous Cases
During the semester we will read, analyze, and discuss articulate openings and jury arguments made by outstanding lawyers in famous and infamous cases. One of our goals in is to study, analyze, and learn how we may adapt certain forensic techniques and text used in these openings and arguments to situations that will confront us in the courtroom. Another goal is to so equip ourselves that, when we need to compose and deliver a jury argument, the right words will spring to mind. We'll have the opportunity to learn from some of the best in the business. The transcripts include openings and arguments from such cases as:
USA v. John DeLorean (automaker charged with drug smuggling)
Illinois v. John Wayne Gacy (serial killer)
New York v. Bernhard Hugo Goetz ("The Subway Vigilante")
USA v. Patricia (Patty) Hearst (kidnapped heiress charged with bank robbery)
USA v. John Hinckley (would-be assassin of Ronald Reagan)
USA v. Imelda Marcos (first lady of the Philippines charged with fraud)
Virginia v. Marv Albert (sports commentator charged with assault
on female companion during sex tryst)
California v. Huey Newton (founder of the activist Black Panther
Party charged with murder)
Texas v. Jack Rubenstein Alias Jack Ruby (slayer of Lee
Harvey Oswald charged with murder)
Georgia v. Wayne Bertram Williams ("The Atlanta Murders")
USA v. Randall Weaver ("The Rebel of Ruby Ridge")
California v. Simpson ("The O.J. Case")
The lawyers include such luminaries as Gerry Spence, F. Lee Bailey, Barry Slotnick, William Kunkle, Melvin Belli, Oscar Goodman, Dick DeGeurin, Barry Scheck, Lewis Slaton, Roy Black, Johnny Cochran, and others.
Written Materials - Sample Stock, Standard, and Swank Openings and Arguments
Class members will have access to several written how-to-do-it reference guidebooks, The Last Word, Jury Argument in Criminal Cases, and Opening Statement will provide research on the psychology of persuasion, proven tactics for moving jurors, and a building block database of over 5500 sample openings and arguments on general subjects such as:
Role and Duty of the Jury
Burden of Proof
Reasonable Doubt
Presumption of Innocence
Court's Instructions
Circumstantial Evidence
Credibility of Witnesses
Refutation and Reply
Quotes, Demonstrations, Analogies, and Metaphors
Call to Arms
Conclusion.
We'll also be able to review sample openings and arguments regarding specific crimes,including:
Criminal Homicides
Assault
DUI
Obscenity
Bribery
Conspiracy
:Defenses, e.g., Alibi, Character and Reputation,
Involuntary Confessions, Entrapment, Insanity,
Misidentification, Necessity, Self-Defense, etc.
Finally, we will have access to punishment arguments on such subjects as:
The Death Penalty
Character and Background of the Defendant
Imprisonment
Probation
Mercy
Forgiveness
Empathy
Fieldwork
In order to gain practical experience through firsthand observation, each student is asked to venture to the civil or criminal courthouse (Harris County Criminal Justice Center, 1201 Franklin) and observe one actual opening statement and/or one actual jury argument during the course of the semester. An analysis of the opening and/or closing you observe will be filed on the class E-Discussion Forum group page and included in your opening & closing trial practice journal. After the trial(s) has concluded, you should make a sincere effort to interview the lawyers, prosecutors and defenders, concerning their views on preparation and delivery of opening and closing.
[Note: In the past, the Harris County District Attorney kindly allowed us to conduct personal and individual interviews with a dozen seasoned trial court prosecutors (all volunteers). These prosecutors shared their views on preparing and delivering opening statements and jury arguments for the government. The edited reports of the informative interviews are archived on the course E-Discussion Forum group, available for all O&C skills corse enrollees to read and/or download.]
Special Guests from the Real World
On several occasions, we may have the good fortune of having a skilled trial advocate visit with us in person or by DVD and deconstruct an opening and or closing from a noteworthy case. Here's the line-up of some courtroom superstars:
- Ms. Kelly Siegler, a terrific prosecutor recognized as one of the forty top women litigators in the entire United States, discusses the structure and presentation of her acclaimed opening and closing in the Susan Wright mariticide case; the defendant who relied on self-defense was convicted of stabbing her husband 193 times after binding him to the marital bed with ligatures; Ms. Siegler, using the infamous Wig Shop Murder as an example, also discusses How to Prepare and Deliver Openings and Closings in Cases Where the Defense Is Mistaken Identity. The Wig Shop Murder was the first of a line of several murder cases, continuing to the present, in which Ms. Siegler bested our next guest, the renowned Mr. Dick DeGuerin.
- Mr. Dick DeGuerin (1), speaks to us about his opening and closing in the high-profile Galveston County murder trial of Robert Durst and how each figured into the acquittal of Mr. Durst, a defendant with a $2 billion net worth and a willingness to spend whatever was necessary for investigation. We learn how co-counsel, noted defender Mike Ramsey, eloquently performed the dirty job of arguing why Durst's decapitation and butchering of the victim's body had nothing to do with facts giving rise to self-defense at the time of the killing.
- Super-charged defense advocate lawyer Dan Cogdell deconstructs the winning opening statement and jury argument he gave in the federal Enron Barge case, where he registered the only jury acquittal in all of the Enron trials.
- Skilled defense attorney Andy Drumheller, who delivered the captivating opening statement for the defense in the sexual assault trial of NBA Hall-of-Famer Calvin Murphy, explains the way he structured and presented his highly regarded opening to help achieve an acquittal on all six indictments.
- District Judge Mike Anderson talks about Opening and Closing in Felony Court; County Criminal Court at Law Judge Jay Karahan visits with us on Tips from the Bench on Opening and Closing in Misdemeanor Court Trials.
- Nationally acclaimed defense attorney Rusty Hardin talks about Planning and Presenting The Winning Argument in a Six Count Sexual Assault and Indecency with a Child Case. This completes our earlier analysis of the Calvin Murphy case in which Rusty and his team secured jury acquittals on all charges.
- Local defense attorney Stanley Schneider gives us some insight into the problems he had in Opening and Closing with Technology in his effort to win an acquittal in the retrial of the Max Soffar Triple Homicide Case (The Pool Hall Murders). Unfortunately, despite his gallant effort, Schneider suffered a disappointing defeat in the retrial of the 25-year old case.
- World-class capital defender Katherine Scardino (the first local lawyer in modern days to secure an acquittal in a capital case) dispenses wisdom about Opening and Closing for the Defense in Capital Cases with Emphasis on the Punishment Argument.
- Legendary civil trial lawyer Howard Nations, who represents both plaintiffs and defendants in catastrophic injury cases, discusses the Trilogy of Persuasion: Voir Dire, Opening Statement and Summation. Mr. Nations, former President of the Southern Trial Lawyers Association and the Texas Trial Lawyers Association, founded the highly acclaimed ATLA (now the American Association for Justice) College of Advocacy; Nations is widely regarded as the "granddaddy" of technology (1) in the courtroom. His web site is without peer in providing the legal community with useful information.
- DWI/DUI guru Gary Trichter, the "cowboy" (trick shooting from horseback a la Buffalo Bill) defender, who literally wrote the book on how to try driving under the influence cases shares his views on how to open and close for the defense, basing part of his presentation on his lauded Jury Summation According to the Code of the West.
- Death penalty prosecutor Lyn McClellan, Chief of the Trial Bureau of the Harris County District Attorneys Office and a veteran courtroom warrior who has successfully tried more death penalty cases (well over thirty) than any prosecutor in the death penalty capital of the nation, chats with us about opening and closing in the guilt and punishment phases of capital cases. Lyn focuses on the transcript of the opening and closing from one of his many significant capital cases, the "Bowling Alley Murders"
Web-Based Online Learning
The course has its own web site with an enormous amount of password protected advocacy resource material. From there, we will also be able to examine, study, and analyze written and video excerpts of openings and arguments from a variety of cases, e.g., the David Westerfield child murder case, the Menendez brothers matricide and patricide case, the "O.J." case, the Charlie Manson Tate-LaBianca slayings, etc. These Internet sources will supplement our viewing of video excerpts of openings and closings in other noteworthy cases, e.g., the murder trial and acquittal of billionaire Robert Durst who dismembered and secreted the body of the deceased after the homicide, the manslaughter trial of ex-basketball star Jayson Williams, the wife-murder (uxoricide) trial of Dr. Dirk Grinegar, etc. Class members will also learn about some superb, free, fast Internet resources that can be of great help in planning, preparing, and presenting opening statements and jury arguments.
Opening and Closing Practice Manual for How-to-Do-It Guidance
Each course member will be provided with a Opening and Closing Practice Manual that contains over six hundred pages of how to do it advice on making opening statements and jury arguments. When you leave the course, this manual can serve as a wonderful nucleus for your opening and closing resource files.
Work Product Journal for Keeping Track of Your Written Work Product
Your Work Product Journal will serve as a depository for any work product generated during the course. Work product may include research notes, narrative write-outs of opening and closings, outlines, feedback critiques of your colleagues' work, your colleagues' feedback of your efforts, forensic and critical legal analysis of transcripts of arguments given in famous cases, briefs of current case law regarding what lawyers may or may not legitimately say in openings and closings, comments about videos of openings and arguments in our class library, possible objections during opening and closing, your own collection of sample openings and arguments, notes from our class discussions, guest presentations, etc. You'll be given grade credit for the self-generated contents of your Work Product Journal, and it will be returned for you to keep.
E-Discussion Group
Each member of the class will belong to the class E-Discussion Forum. It takes about three minutes to register for the E-Discussion Forum using your own chosen email (email) address. This Internet group allows us to post written email feedback and critiques of our colleagues' openings and closings. Each student in the class receives all of the email messages posted to the group by the other members of the class. The Forum may be used for sharing information, comments, queries, etc. It is a simple matter for each student to file all relevant class emails. The E-Discussion Forum web site provides a permanent archive of all filings from every student. This web based group also allows the instructor to share useful information and provide feedback.
Collaborative Learning
Enrollment is limited. The class will be comprised of a maximum of 16 students, who will be divided into four mini-law firms (teams) of four. The team approach to some of the advocacy tasks will provide students with the opportunity to work cooperatively and collaboratively in a small group to achieve a beneficial end. You will be working with the members of your mini-law firm team and networking with the other teams. [Note: Although law school teaches students to compete with one another, successful real-life lawyers must learn to collaborate and work with their colleagues. Because there is strength in numbers, real lawyers, even solo-practitioners, usually try cases with a sidekick.]
Videotaping of All Performances
You are a pivotal part of your message. When you see and hear yourself on video performing in a courtroom setting, you have a window into how you come across as an advocate. Watching and listening to yourself gives you an insight into how you are communicating with your body and words. Your Trial Story performances will be available on streaming video (password protected) within a few days after they are delivered.
All student performances (presentations) of individual Trial Story openings and closings will be videotaped for self-analysis, peer review, and teacher feedback. Our class will meet in a Trial Advocacy Practice Courtroom. This courtroom is outfitted with built-in electronic equipment (projector, laptop, document camera) and multiple wall-mounted video cameras that allow our video technician to provide you with a high quality video record of all your presentations. Your personal videotape or DVD will be invaluable when reflecting upon critiques from the instructor and colleagues, as well as when you do a self-evaluation at the end of the course. [Note: We will have a state-of-the art laptop in place for every Trial Story presentation for your visuals. Your will be encouraged to use courtroom technology, e.g., visuals such as PowerPoint slides, to complement/supplement your oral presentations of opening statement and jury argument.].
Grades
The course grade will be based on a panoply of factors, including, but not limited to, the following: your dedicated effort in planning, preparing, and presenting openings and arguments; your write-outs and key word outlines of Trial Story openings and arguments; your written and oral feedback and critiques of your colleagues' presentations; your classroom presentation of stories; your preassigned reading and written and oral analysis of transcripts of openings and closings; your briefs and oral presentation of a recent case involving what may or may not lawfully be said in opening or argument; your preparation of a file/ collection of eloquent lines for use in your openings/closings; any suggested tips and/or tactics for posting on the class' opening statement and/or argument web pages; your completion of the weekly written assignments, your effort to learn how to use plain and electronic visuals, e.g., PowerPoint, in your presentations; any fieldwork and interviewing you do, e.g., observing openings and arguments at the court house, and/or interviewing trial lawyers; etc. [A passing word of advice: If you commit yourself to improving your advocacy presentation skills and document all of your efforts, your grade should take care of itself. It's said, " The secret joy in your work is contained in one word - excellence. To know how to do something well is to enjoy it." With dedicated effort to attain skill in courtroom presentation, your chosen line of work - you'll find that joy.]
Any Questions?
If you want to project poised, polished, powerful, persuasive, presentation skills and want to jump start your career goal to become a courtroom warrior, you are cordially invited to join me and a small band of similarly committed students for this innovative litigation skills course. The practicum differs in content and method from the traditional curriculum. It does require time, commitment, and dedicated weekly effort. Should you have any questions about its dynamics, compass, and logistics, drop me an email and place "Opening & Closing" in the subject box.
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CCJA is an independent entity. This is not an official web site of any educational institution.
No one other than the author is responsible for the content of this site or for any links from the site.
Written inquiries can be addressed to: Center for Criminal Justice Advocacy, P. O. Box 22642, Houston, TX 77227-2642.
This site is written and maintained by Ray Moses and was last updated: May 2, 2008.
