The Art of Opening a Case to a Judge

The opening of a case to a judge or to a judge and jury is a matter of great importance to the outcome of the litigation. The opening is the picture which you present to the court or jury to give them a preview of your case before they listen to the evidence. What they get out of the evidence you will introduce will depend in large measure on the skill with which you have prepared them for it through the picture of your case. Your opening will set the pitch and the tempo of your part of the trial. Making an opening, therefore, is no mere matter of form but constitutes an art of very real importance.

Openings are of two kinds, one to a judge sitting alone and passing on both the law and the facts, the other to a judge and a jury with the judge as the arbiter of the law and the jury as the trier of the facts. In opening a case to a judge sitting alone it is important to know whether he has read the pleadings, whether there has been a pretrial conference at which the issues in the case have been simplified by him for purposes of trial, and whether he has read your trial brief. If he has, he is likely to suggest that you waive an opening, but if you can open the case without, of course, going against his instructions, it is highly advisable to do so; first, because many judges get things through the ear better than they do through the eye; second, because even if he has read the pleadings, the pretrial conference order, and the trial briefs, there is a definite advantage in being able to summarize them at the outset of the trial; and finally, because it will be helpful to your client and your witnesses if they can see your entire case in perspective before they testify. One way or another, it is as essential that the judge have a preview of the facts as it is for the jury. In opening to a judge it is permissible and often desirable to state the issues of law as well as the issues of fact to be tried so that he will have the entire situation before him. In opening to a jury, however, counsel will rarely have occasion to deal with problems of law for those are for the court; he will ordinarily confine his attention to a presentation of the facts of the controversy.

Trial judges differ from each other quite as much as appellate judges do, and jurors are infinite in their variety. The advocate's problem is, therefore, one of adapting his tactics in the particular case to the characteristics of the tribunal he is addressing. However much the judges and jurors may differ, there are certain general principles concerning an opening that have as much force as if they were written law. Start by identifying the parties and their respective counsel. In the ordinary case the opening should be brief and simple. It should be a statement of what you expect to prove. Generally it is a mistake to go into detail or to narrate what you expect each witness to tell. Your audience will get lost in details, and besides, your witnesses may not say what you expect them to say on the stand. Stick to essentials. Emphasize the elements of liability and the ingredients of your claim for damages. While explaining your case to the judge or jury give them the drama of the litigation and endeavor to arouse their interest in your side, without, of course, any direct appeal. Let the facts tell the story. It is always wise to understand what one hopes to prove. The jurors have a way of remembering what counsel said he was going to demonstrate, and if he fails to do so they are likely to hold it against him and his client. It is far better to let the judge and the jury discover for themselves interesting things in your case, once you have aroused their interest and sympathy, rather than to endeavor to tell them everything. What they discover for themselves they are most likely to remember, when they come to decide the case.

Summarize and suggest evidence, therefore, rather than recount it at length. Do not, however, make the jury guess what your proof is going to be. Above all things, be sure that you tell the jury enough to make out a prima facie case, otherwise you may be in danger of having your adversary move for a non-suit on your opening and succeed on his motion. Ordinarily the best way to present the facts of a case is in chronological order. Strive for continuity. In any event, it is important that the judge and the jury see that you have a plan and order above your presentation. Nothing so wearies a tribunal as to have to skip backward and forward in their case. Nothing could be more likely to cause them to lose faith in you and your cause.

There are few cases in which there is not some fact or some witness that counsel wishes he could get along without, but which, nevertheless, is there and must be recognized. It is better to be frank with the jury about these matters, though, of course, without emphasizing them. You must rely on a witness with a shady past or a criminal record, mention it casually, and minimize it if you will, but do not let it come later in the case as a surprise. If there is a letter that should not have been written but which cannot be ignored, mention it and tell the jury that you will explain it and how. On the other hand, an opening is no place for an argument. That is the function of your summation. Not only should counsel not argue in his opening, but he should avoid any statement that can call for proper objection from his adversary. Nothing will so wreck an opening as legitimate interruption by opposing counsel. Do not, therefore, refer in your opening to evidence that you know will be held inadmissible later on in the trial, because counsel will most surely object, break the thread of your opening and give you a bad start with the jury.

Either side may waive an opening but it is never advisable to do so. It creates a bad impression. The jurors will think either that you have something you don't want to tell them, that you prefer to play poker until the evidence is all in, or that you think the case is not important enough to explain to them. In any event, they will feel cheated and they will not like it.

Always take notes of your adversary's opening so that you can quote in your summation anything that he says in his opening he will prove but fails to. It is not that you will not remember what he said in his opening, but it always impresses the jury for you to appear to have his exact words on crucial points available in written form.

The opening should not be a humdrum affair. It should create a sense of expectation on the part of the jury. Do not pound the rail of the jury box. The story is told of a trial lawyer who was so annoyed at his adversary's doing so that he told the judge his adversary' had reminded him of something he had omitted to do in his address to the jury. He asked for permission to take care of it. He advanced to the jury box and thumped the jury rail three resounding whacks and then sat down. The jury got the point; his adversary's speech had been demolished.

Finally, do not lecture the jury. Treat them with the same respect that you would treat an appellate court. Indicate that you have confidence in their honesty, their intelligence and their practicality. Then sit down.

Summation

Summations, like openings, are of two sorts. A summation to a judge sitting alone is quite different from a summation to a jury. It is very much like the argument of an appeal with the exception that it is before a single judge instead of a bench of judges, and also that the judge has just heard the evidence and it is fresh in his mind as it has developed during the trial. With these exceptions taken into account, everything that has been said about the argument of an appeal would apply with equal force to a summation before a trial judge. The facts are to be marshaled in orderly fashion from your client's point of view and the rules of law applicable thereto should be presented as clearly and cogently as possible. In dealing with the facts and likewise with the law, counsel should make proper use of what he has learned is going on in the judge's mind from the judge's remarks and his attitude as the trial progressed. Counsel has had a preview of the judge's mind, which should help him in deciding both what to say and what not to say. There is, of course, the chance that the judge may change his mind in the final moments of the trial, but the chances are against it. Any questions from the bench during the course of the summation should be quickly, tersely and frankly answered. They are entitled to a weight that does not attach to the questions of any one appellate judge; they are obstructions in the path of your victory; and quite literally they must be disposed of before counsel may safely proceed. If a one-page summary of one's argument is helpful on appeal, it is doubly helpful in summation before a trial judge in organizing one's thoughts on the facts and on the law. Simplicity and clarity are quite as important as in any argument before a jury. Quite as much as with a jury, no result is ever impossible in summation to a judge.

One of the most troublesome aspects of summation to a single judge is met when he becomes interested in reading a pleading or a trial brief or a judicial decision during the course of your argument or when he is interrupted by one of the court officers with some message. If the interruption promises to be a short one, counsel had better continue as if nothing had occurred. If the interruption continues, there is nothing to do but to take the risk of offending the judge by stopping short in your speech until you have regained his attention. Quite different is the judicial habit of shutting one's eyes. This does not always portend slumber.

One must learn not to be impatient and also to laugh when the tables are turned against him. This is well illustrated in an incident which the late Emory R. Buckner, a great trial lawyer, told at his own expense:

I remember when offering a bill of lading in a prosecution ... it was objected to because I described the paper as a bill of lading, whereas the paper spoke for itself; I, impatient and not waiting as I should have for a ruling, promptly broke in with "Why, your Honor, I have a perfect right to describe generally the paper I am introducing, otherwise the jury might think it is a barn door." My opponent immediately replied, "I beg to disagree with the learned District Attorney, as I am sure the jury will consider the paper a darn bore." This caused a laugh at my expense and diverted the mind of the jury from the main facts which was altogether a mistake. The objection was overruled.

It is these unexpected encounters that give zest to a trial. Men of great wit like Joseph H. Choate have a great advantage. Regardless of what the technical rules of law may be, every argument to the jury, to be effective, must appeal to the jury's concept of essential fairness and justice. Juries are rarely interested in technicalities. Ordinarily the fewer points the jury is called upon to deal with in the summation, the better. It is likely to be fatal if one scatters one's fire in too many directions on a multitude of points. On the other hand, although it is unwise to develop too many points in a summation, it is well to remember that there are twelve different minds on the jury and it is better to appeal to more than one type by more than one different argument. Take a middle ground. Develop a few of your strongest points. And in the course of developing your strongest points you must at the same time make sure to point out the weaknesses of the defendant's side.

An advocate must be able to say with Montague Williams: "I am by trade a reader of faces and minds," and if you find that you are losing the interest of the jurors on one front you should seek at once to arouse it on another. To have control of your case you should have an outline of your summation either in mind or on a single page, just as the advocate does on the argument of an appeal. If you can find a telling slogan or catch phrase that the jury may leave the courtroom remembering, so much the better. Don't read to the jury any more than you can avoid.

There may be lawyers who can read well to a jury, but we usually have never heard one. There is one exception: when you come to the crucial parts of the case, very real advantage may be had in quoting briefly from your notes of counsel's opening or a vital line from a witness's testimony, but not too much, of course. Just a word or two to show that your opponent has misstated or overstated his case in his opening, just a line or two from the testimony to show exactly what it was that an all-important witness had to say, may well prove decisive. On the other hand, never memorize a summation. The course of events at the trial may force you to change your plan of attack or of defense and with a memorized speech this is indeed difficult. The odds are all in favor of a lawyer with a good clear outline from which he can vary as necessity demands. All your effort should be devoted to persuading the jury that the facts and the law are on your side and that justice and honesty will prevail if their verdict is in your favor; otherwise they are not likely to decide for your client, however eloquent you may be. Though one may never thank a judge for listening, it is permissible and generally advisable to thank the jury, not obsequiously but courteously and briefly, for their attention. In appropriate cases one will do well to impress the jury with the importance of their power. Put the burden of the decision on the jurors' souls.

In dealing with adverse witnesses who clearly have not told the truth, it is generally better to treat them as if they had made a mistake rather than as if they were deliberate perjurers. The sympathy of the jury is apt to be with the witness rather than with the advocate who has exposed him. It is only in those cases where the perjury is beyond the shadow of a doubt that it is safe to attempt to destroy the witness and not merely his testimony.

It is equally important not to indulge in far-fetched inferences from the testimony or in any kind of extravagant claims. If you represent the defendant, your opponent coming after you will surely explode your rhetoric. Even if you are speaking last, remember that the jury thinks better of an argument that is reasonable and clear. Above all jurors insist on sincerity- they are likely to favor the lawyer who seems to subordinate himself to his cause and who is giving everything within his power. Such a lawyer is likely to win the confidence of the jury without being in the least familiar with them. Courtesy, clearness, common sense, fairness, and moral earnestness should mark the progress of a summation to its conclusion. As long as human nature is what it is, true eloquence springing from the mind and the heart of the speaker will be a factor to be reckoned with in any courtroom and at no time more than in summation.

One final word: young lawyers are much concerned over their nervousness in public address and especially in summations. They should know that every speaker worth listening to is nervous, nervous about his equipment, his preparation, his audience, the hundred and one things that may go wrong. It may interest you to know that as great a speaker as Woodrow Wilson never made an address without his knees shaking for five or ten minutes. The sensitivity to an audience is one of the marks of the great speaker. A speaker who lacks this quality cannot hold an audience. The remedy is the understanding of the conditions of the particular address you are called upon to deliver, thorough preparation, and experience. You must learn to make your nervousness work for you.