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ARTICLE:
Separate But Equal
Reflections on the Preparation and Delivery
of the Opening Statement and Closing Argument
by M.
BRYAN SLAUGHTER & BRUCE
RASMUSSEN
Mr. Doe has left
our office after his initial interview on March 15, 2000.
Now is the time to start preparing the closing argument for
his and his nephew's cases. But what about the opening memorandum,
filing suit, interrogatories, depositions, meetings with the
experts, meetings with the doctors, settlement negotiations,
preparation of witnesses and the hundreds upon hundreds of
other items, large and small, that must be done before trial?
Aren't we jumping the gun just a little bit? We haven't even
developed our facts or damages, how can we think about the
closing argument? Focus. Everything that is done to develop
a case, from beginning to end, must have a reason behind it.
It is easy for a lawyer to go through the motions of preparation—but
nothing should be done without first asking how it is going
to benefit, or potentially damage, the case. By thinking about
the closing argument from the very beginning, we focus on
the major themes of the case. We focus on our goals for the
case—how we ultimately want to present the client and
his case to the jury. From then on, the entire process is
about reaching, and maximizing, these goals.
We do not mean to insinuate that the closing argument is the
most important part of a trial. It is not. All aspects of
trial are equally important—a case can be lost if any
part is not properly prepared. Opening argument, however,
presents possibly the greatest opportunity for an attorney
to shape the facts of a case in a light most favorable to
the client. The plaintiff's attorney has the remarkable privilege
of being the first person from whom a jury will hear. The
attorney should not waste this opportunity with anything but
the most precise preparation.
This article will first discuss possible themes arising out
of the Doe fact pattern. It will then discuss different strategies
for opening statement and closing argument in a premises liability
case. Obviously, as the facts of the case are not yet developed,
it is difficult to move beyond generalities, but the following
are techniques that we use in each of our cases.
Before we decide how to get there, where are we going?
Responsibility is the primary theme of the Doe case. The management
company of the apartment complex had complete control of the
premises, and it was their duty to inspect the railing. Since
Mr. Doe had just moved in two days before the accident occurred,
the management company had the opportunity to fully inspect
the apartment after the previous tenant moved out. They failed
in this responsibility, and they even promised that the apartment
was "beautiful and in great shape." Mr. Doe could
not be expected to learn of the unsoundness of the railing
in the short time he was in the apartment. In addition to
the responsibility of the defendants to inspect, Mr. Doe also
has a responsibility to provide for his family. Because others
failed to meet their responsibilities, Mr. Doe can no longer
meet his. Out of this responsibility arises accountability.
The apartment complex is attempting to deny their responsibility,
and only through a jury can they be held accountable.
A corollary to the theme of responsibility is that of trust.
We, the public, including Mr. Doe, his nephew and the jury,
are not in a position to inspect every safety device with
which we come in contact. Rather, we have to trust that the
people who are in charge of ensuring that those devices are
safe have done their job. When persons, such as the defendants,
are careless and fail to do this duty, someone can have their
life altered irreparably.
Counsel should also make the function of a railing clear
to the jury whenever possible. A railing is not ornamental,
rather it is a safety device. By its very nature, it invites
people to lean against it. As such, it should be inspected
at regularly scheduled intervals in order to ensure that it
can properly serve its function.
Once these themes are identified, it is then the lawyer's
job to develop the facts to support these themes. For instance,
what is the schedule for inspections in the apartment complex,
and do they comply with the building code? If the defendants
are contending that this is a freak event, then what are the
conditions of other railings in the complex? How is Mr. Doe
as a father, husband, employee? Was he meeting all of these
responsibilities? Which of these responsibilities can he meet
now?
Counsel should not underestimate the intelligence of the jury.
One of the biggest complaints of focus groups that we have
conducted is that cases are often over-tried. It is tempting
to make a point over and over again with as much evidence
as possible. Jurors often will get the point with much less
evidence, and the impact is greater when they are allowed
to make a connection themselves, rather than being spoon fed
entirely.
Lastly, there are two questions that we seek continually
to answer through discovery and trial: (1) what did the defendant
do wrong; and (2) what good will money do? If counsel can
give the jury an answer to these two questions, he or she
will have tried a strong case.
Never a second chance to make a first impression
As the plaintiff's attorneys, we have the privilege of being
the first attorneys to speak with the jury. This is an incredible
opportunity, as we shape the jury's initial impression. Whereas
closing is about themes, the opening argument is first about
facts—framing facts in a way that we want them framed,
thereby laying the groundwork for the themes that follow.
This is where we get to introduce Mr. Doe and his nephew,
this is where we get to tell their story.
Various organizations and books posit the approach that
opening statement should closely resemble closing argument,
to the extent that an attorney can get away with this. We
disagree. The initial focus of the opening statement should
be to place the jurors in the shoes of the plaintiff. We would
like the jury to start thinking about why this accident happened.
How was this accident allowed to happen? Whose responsibility
was it to inspect and ensure that the railing did not fail?
Lastly, what are the effects of this accident on Mr. Doe's
and his nephew's lives?
Another reason to favor telling the client's story over argument
is jurors distrust of lawyers—especially plaintiffs'
lawyers. Therefore, until counsel has built up some degree
of rapport and trust with the jury, it is too early to make
any form of argument. Rather, we just tell the story of our
plaintiff in a manner which we know is going to be supported
by the witnesses immediately following the opening statement.
This will reassure the jury that what we have told them in
opening will be supported by the evidence. We have taken a
major step toward gaining their trust.
We are striving to present the facts in a nonconclusive manner,
attempting to tell as compelling a story as possible. The
first words should be designed to immediately grab the jury's
attention. We would bring the jury back to the day of the
accident, to one of those sparkling springtime mornings in
Virginia that creates a sense of optimism in all of us. One
of those mornings that makes us bring our coffee and newspaper
out to the porch. The air is crisp and the birds are chirping.
A typical morning in Mr. Doe's, or any man's, life. The jury
will be attentive because they intuitively sense a calm before
the storm. Counsel can increase the curiosity and tension
by waiting to describe the accident. We can use the time to
introduce Mr. Doe and his nephew. Mr. Doe had been a brick
mason for twenty years. He was good at what he did, and he
made a good living at it. He worked hard, and he was a good
father and provider for his family.
And then the railing snaps. In a blink of an eye, lives are
inexorably altered. The time it takes Mr. Doe to fall five
feet equals the loss of sixteen future years of productivity.
He can never again work in his life's trade. He can no longer
provide for his family. Now is the time to tell the jury why
this happened, to answer the question of what the defendants
did wrong.
We can use the law, as we expect the judge to instruct the
jury, as a framework for defining the responsibility of the
defendants. The defendants had full authority and the duty
to make reasonable inspections of the premises and to make
needed repairs. If, through the use of ordinary care, they
could have discovered the rotted railing in time to have it
replaced or repaired prior to the fall, then they had a duty
to do so.1 Here would be a good point to mention the rental
agent's promise that the apartment was "beautiful and
in great shape."
It is important to anticipate and explain the negative aspects
of our case. This should not come at the end of opening statement
but rather should be placed between our strong points. By
acknowledging our weaknesses, we can frame these facts in
a context that will be most favorable to us. We do not want
to overdo this part of the opening, however, or we will appear
to be setting up straw men.
Damages should not be overstated, and it is our practice
to even understate them a bit at this stage of the trial.
We would explain the injuries caused by the fall and Mr. Doe's
expected prognosis. We can also explain the trade of a brick
mason, the physical labor involved, and his yearly wage. If
true, we would tell of Mr. Doe's desire to return to some
type of work, even if he can no longer lay brick. With regard
to his nephew, we would explain the limitations caused by
his broken arm and the permanence of his facial scar.
Generally, we like to use an easel with a large sketch pad
on which we write our main points prior to the opening. This
gives both us and the jury a reference point, and it is less
distracting than speaking from notes or a prepared speech.
Counsel should never read the opening. We use whatever demonstrative
evidence we are sure will be admitted—in this case, the
piece of rotted railing. Finally, we concentrate on using
powerful language, being concise, and keeping the argument
as simple as possible. Each of these seemingly understated
steps is integral in introducing our case to the jury.
All we have is words
Mr. Doe's life, and that of his family, is in our hands, and
we have to convince seven people that they must make the defendants
pay the debt they owe to him. We have thirty-five minutes
in which to do this, and all we have is our words. Such an
argument is helpful in conveying the gravity of the situation
to the jury, but it is not, of course, completely true. We
have (hopefully) done our convincing throughout the trial.
Closing argument is for tying our case together, and in doing
so, for empowering the jury. It is not for "winning"
the case—certainly not for convincing the jury about
liability. Some attorneys devote the majority of argument
to liability and address damages almost as an aside. This
is a mistake. At least half of closing argument should focus
on damages.
A good closing argument is not a recitation of the facts
and/or the witnesses. The words that we give to the jury are
those that they are going to use in the jury room to argue
the case to other jurors. We want to help the jurors who are
already on our side in their future battle against the jurors
who are leaning the other way.
Closing argument is an opportunity to empower the jury. The
jury, through their verdict, has a chance to do something
that is beneficial, not only for the plaintiff but also for
the larger picture of public safety. The verdict will compensate
and financially protect Mr. Doe, his nephew, and the family.
It will also, however, tell this defendant and other landlords
to properly inspect properties in order to prevent a similar
tragedy from occurring in the future. The jury will be doing
their part to make sure that rental properties remain safe.
Again, if the jury fails to hold the defendants to their responsibility,
who will? Without this jury, there will be no accountability.
Use of jury instructions is also important. Thus, the plaintiff
does not appear as if he is trying to gain the jury's sympathy.
Rather, this shows the jury that the law is on the plaintiff's
side. It cloaks the plaintiff with authority—this is
not just what we're saying, members of the jury, this is what
the law of Virginia says. The law also presents the jury with
guideposts to reach their verdict. The law says it was the
duty, the responsibility, of the defendants to inspect the
premises. Mr. Doe and his family trusted that the defendants
would provide a safe apartment. It was their right to expect
this security. We are seeking to weave together our themes
with the law.
Again, Mr. Doe was assured the apartment was in great shape.
Prior to Mr. Doe and his family moving in, the apartment was
empty for at least a short amount of time. The apartment most
likely was cleaned and possibly painted in preparation for
the new tenants. What better time to inspect? Instead, the
defendants merely painted over or ignored the rotten railing.
Testing can be accomplished simply by knocking on the railing
to see if the wood was still sound. In fact, the defendants
put money ahead of safety and disregarded the law of the Commonwealth.
In anticipation of the defendants' argument, we would emphasize
that the defect was hidden. Mr. Doe and his family did not
know, nor did they have reason to know, about the damage to
the railing. They had to trust that someone else would properly
inspect the premises. Again, a railing is a safety device.
It is far more important to inspect the railing than to repaint
the walls or clean the carpet. Mr. Doe and his family had
to rely on the defendants to make decisions regarding their
safety. When these people did not do their job, the outcome
became predictable. The real tragedy of these injuries is
that they were so preventable.
For damages, it is important to personalize the injury. We
seek to bring home the toll this fall has exacted upon Mr.
Doe and his family. This is a man who worked all of his life
and had a dignity in his work. He now cannot provide for himself,
his wife, or two small children. While he will be subject
to a life of pain, he will also be subject to a life of worry—how
will he be able to support his family as he always has?
Here is the opportunity to answer why our client needs a substantial
verdict. Mr. Doe is a young man with a family. How will he
put food on the table? How will he afford basic medical care
for his wife and children. How can he put shoes on their feet?
Through their verdict, the jury will enable Mr. Doe to continue
to meet his responsibilities to himself and his family. Through
their verdict, they can allow Mr. Doe to reclaim some of the
dignity that the defendants stole, both through their carelessness
and also through their refusal to acknowledge their obligations.
Obviously, the wage loss combined with the medical costs
is enough for a substantial verdict in this case. We would
put his work life expectancy at 62 years of age. While this
figure might be conservative, rather than the 65-year standard,
we believe it produces trust with the jury. Mr. Doe is still
a young man. Mr. Doe's special damages, then, amount to $798,000.
While this is certainly a lot of money, it is not an amount
to shrink away from. This is Mr. Doe's only chance to be compensated,
he cannot come back if the money is depleted because he got
less than full justice. If Mr. Doe can eventually return to
some sort of work, we would also reduce his special damages
by his potential earnings. Again, this enhances our credibility
with the jury.
Just as in the opening statement, we also use the easel
and sketch pad during closing argument. This lets the jury
see our major points, and it gives us an outline from which
to work. We also enlarge to poster size the duty instruction
and the damage instruction. It is effective to go through
each aspect of damages that the jury must consider. This shows
the jury that we are not randomly making these requests for
money, rather we are deriving our damages argument directly
from the law of Virginia. Our manner is usually more persuasive
and less conversational than opening statement—the jury
must be convinced that we believe strongly in the argument
we are presenting. Before sitting down, we will quickly present
what the defendants' basic arguments will be and why they
are inapplicable. This tactic can reduce the effectiveness
of defendants' closing and will focus the jury on the plaintiff's
response while the defense makes their argument.
Rebuttal
The rebuttal should not be a response to the defendant's argument.
Rather, the attorney should have anticipated the defenses
in his initial closing argument. The very first part of our
rebuttal argument brings the jury back to our case. One argument
that we often use is termed the "octopus argument,"
that is, when an octopus is in danger, he will emit a cloud
of ink, so that he may slither away to safety. That is what
the defendants are attempting to do in this case, to put up
a cloud of smoke, and focus the jury away from the real issues
of the case. Another argument in the same vein is that of
a magician who uses sleight-of-hand to obscure the truth.
Whatever argument one chooses, the crux should be that, while
the defendant's arguments were very nice, we should focus
instead on the facts, the truth, of the case.
We usually will talk again about the burden of proof. Often
defendants will use terms such as "convict" or "guilty"
in their argument. We focus the jury back onto the burden
of proof in a civil case, and their commitment during voir
dire to abide by the law.
The defense will invariably have made an argument that the
jury's verdict should not be based on sympathy. The best counter
to this is that the plaintiffs have received a constant flow
of sympathy ever since the accident occurred. While that sympathy
is nice, it is not particularly helpful. It is certainly not
why they are here today. They are here for one thing: justice.
It is the job of the jury to give this justice, and that is
all that Mr. Doe and his nephew are seeking.
A common mistake is to spend the entire rebuttal addressing
points made by the defense. We should have already focused
on the main points that the defense makes, and we address
those arguments by working those answers in throughout our
argument. It looks overly defensive to address the defendants'
arguments point-by-point. We, the plaintiffs, must define
the issues of the case.
Finally, the last part of rebuttal must be the strongest
point of our case. We must use whatever will best bring home
to the jury the damage that this fall has caused Mr. Doe and
his family. We want to present whatever will motivate the
jury to want to help them adjust to the changes in their lives.
We would again address the theme of responsibility–the
responsibility to inspect, the reliance on the inspection,
the failure to inspect, and the toll this failure has exacted
on Mr. Doe and his family. Only the jury can make right the
wrong that has occurred. Only through them will Mr. Doe receive
justice.
Conclusion
The primary components to a strong opening statement and closing
argument are the same as with any aspect of trial–intense
preparation and frequent practice. Neither one alone will
ensure success, but without them failure is inevitable. An
attorney is challenged not to over- or underestimate the importance
of the opening and closing but rather to see them simply as
powerful tools in presenting his or her client's case. The
unique characteristics of each render them separate in substance
but equal in significance.
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Endnote
1. Gumenick v. United States, 213 Va. 510 (1973).
reprinted from The Journal of the Virginia Trial Lawyers Association
Spring 1999 with permission
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