This will likely be the last piece I write on last month’s trial. We are scheduled to start another trial in January 2018, with additional trials in April and May, and they may gin up some additional insights that I think are useful to pass along. Today I have some quick thoughts about opening statements and closing arguments, as well as jury deliberations.
Common Points for Openings and Closings
- Remember that this is your first and last chance to make an impression on the jury about your case. It also means your credibility is on the line. What do I mean? If you tell the jury in opening that certain evidence is going to come in at trial, and then it does not, your opponent is going to remind the jury that they never saw that evidence. Similarly, if you stretch the evidence during your closing argument, the other side may remind the jury that you weren’t accurate. Or even worse, the jurors may independently recall that your arguments weren’t accurate while they deliberate.
- Visual aids are great for openings and closings, so use them. Depending on the expected length of trial, openings and closings could last an hour or longer. Jurors can pay attention to a lawyer standing in front of them just talking for only so long. Like inserting exhibits into videotaped depositions, using exhibits and other visual aids during openings and closings will help keep the jurors’ attention. Just make sure you use them judiciously so that you don’t distract the jury away from your argument.
- I think defendants are better off following their prepared opening statement and ignoring what the plaintiff’s lawyer says in opening statement. Most likely your prepared opening statement will already address the soft spots in your case. Trying to rebut specific statements the plaintiff’s lawyer made during opening could cause you to lose focus and run out of time.
- Always weave in the questions and instructions the Court is giving to the jury for deliberations into your closing argument. Give the jurors a roadmap for their verdict.
- One potential caveat to that last point: if you are a defendant in a case where the plaintiff is asking for punitive damages, and you think you have a good case to win on liability, should you address the punitive damages issue? There’s probably no correct answer to this question, and lawyers could and probably will debate it until the end of time. If you are going to address punitive damages in your closing argument, however, make sure you do so in a way that does not compromise your other arguments on why your client is not liable at all.
- Just like the Wizard of Oz, everyone wants to know what goes on behind the curtain. The truth is that no one but the jurors in the jury room actually know what happened during deliberations. And, in many instances it’s not worth speculating because it will drive you crazy. This is especially true when the jury has a question for the judge during deliberations. For example, if the jurors ask for a calculator, a plaintiff is probably thrilled because they think that means the jury has found the defendant liable and is on the damages question. But then the jury came back and found the defendant was not liable. So why did the jury need the calculator? They were using it to confirm some measurements that were taken around the accident scene to confirm the parties’ stories. The lesson: never assume anything!
Tilting the Scales in Your Favor
Jury trials are like a good rollercoaster: they get you high, they take you low, and they get your adrenaline pumping. I hope you’ve enjoyed these insights and best of luck in your next trial!