Robbins: Openings and closings in the courtroom
While the pastrami may be in the middle, without the bread, the whole thing falls apart.
You can thank the Earl of Sandwich for that, I suppose.
And while the middle matters, so too does what holds the tasty innards together. In the case of law, that is the buttered opening on one side and the mustard-slathered closing on the other.
A stretch?
Yeah, maybe.
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But the point is this: Every story has a beginning, a fat middle, and end.
I have noted more than once that, at its essence, the law is stories; the stories of people’s lives, and hopes, and disappointments. Law does not happen without a story to tell.
Think of opening and closing as prologue and epilogue. In between unfolds the story itself.
Allow me to explain.
First of all, what a lawyer says in court is not evidence. The evidence consists of what the witnesses testify and the documents and things that support one side or the other. What the lawyer offers is “argument,” spin, or persuasion. You may also think of a lawyer firing questions at a witness as akin to a male ballet dancer holding out his finger to balance the pretty girl spinning beneath his hold with her tale. At various times during the course of the trial, it is some of each.
So what the middle of a trial is, is the presentation of the evidence, the telling of the story of what happened through witness testimony and the tangible support of documents or other things. You may be thinking, what other things? So a quick diversion here.
There are essentially two kinds of evidence: what a witness says and the physical things that support it. Most commonly, those physical or tangible things are the written word: contracts, correspondence, and the like. But tangible evidence is not limited to writings. Tangible or physical things can also be fingerprints, DNA, a weapon, the bumper of a car — the potential list, depending on the particular case — is almost limitless.
But before the middle, comes the prologue, or “opening statement” which lawyers usually abbreviate as simply the opening.
The “opening” is the lawyer’s opportunity to set the stage for the drama that will unfold with the presentation of the evidence. While important when the trial is to the court (that is to the judge without a jury), when it is a jury trial, the opening is critical. It is the lawyer’s opportunity to share what he believes the case is all about, to present his theory of the case, to introduce who and what will be heard as evidence and what the witnesses will likely say, and to encourage the trier of fact (whether judge or jury) what they should conclude.
An axiom that is adopted among attorneys as an article of faith is that one should never over-promise in an opening. If you tell the jury this or that is what they’ll hear and you fail to deliver, they will remember it.
While the opening is an opportunity for advocacy, one must tread lightly, must know one’s case, and although one can and should present one’s theory forcefully, openings can prove to be a landmine. If the lawyer is not certain what the evidence will show or what a witness may say, best to hedge one’s bets at least a bit.
As with most things in the courtroom, what is good for the goose of the plaintiff is good for the gander of the defendant. Each gets to present his or her opening; the plaintiff always first.
The closing statement or “closing” is the rear bookend or epilogue to the trial.
Once all the evidence has been presented, it is each of the lawyer’s chances to sum up, to gather all the evidence that has been presented into a tidy package, reminding the jurors or the judge what it is they heard and what it means. If the lawyer is worth his or her weight, she will emphasize what is favorable, try to discount what is not, and point out inconsistencies or flaws that strengthen her side. It is also the last word encouraging the judge or jury what, in light of what was presented in the courtroom, they should, in reaching their decision, find.
The old saw that one only gets one opportunity for a first impression holds in spades the courtroom. Openings are a critical opportunity that should be prepared for as meticulously as any other part of the trial — perhaps even a bit more. Similarly, one only gets one chance at a last impression. As such a forceful, thoughtful and persuasive closing matters.
One of the great joys in which most trial attorneys take satisfaction is the thrust and parry, and drama of the courtroom, and the two essential elements which are the bumpers of the beginning and the ending; the opening and closing. When delivered well, they set the tone, then bundle things neatly up. In the hands of skilled counsel, they can be a thing of legal and rhetorical beauty.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the law firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, and divorce, and civil litigation. Robbins may be reached at 970-926-4461 or at his email address at Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” and “Why I Walk so Slow” are currently available at fine booksellers.
