Drafting Opening Statements - Down and Dirty

In this blog post I am going to lay out the primary steps you should think about when creating and drafting an opening statement. These ideas can be found in greater detail in my texts with WEST Academic publishing, "Fundamental Trial Advocacy" (FTA) and "Mastering Trial Advocacy" (MTA). FTA is a thoughtful book that captures my particular essence as a trial attorney, MTA is more basic text designed to be used in a cookbook fashion. Let's talk about Opening Statements.

Introduction

During openings counsel have their first opportunity to explain to the jury what happened, and why it matters. This is an important persuasive moment in the trial, counsel must make it count. Openings are carefully constructed to highlight the relevant facts, foreshadow the law when appropriate, and to establish the moral imperative demanding justice for the client. The structure and nature of openings are controlled by the relevant rules of procedure, either civil or criminal, the local rules of court, and the unwritten local customs. Counsel should prepare openings with all three of these in mind.

The opening statement is the first and best opportunity to influence the jury’s decision-making process.  Counsel should use openings to tell their relevant story of the case, based upon thorough case analysis and preparation. Proper openings provide a framework for the jury to conceptualize what is going to happen during the trial, as well as an outline making the testimony of witnesses more relevant.

The tone and presentation of the opening statement establishes a relationship between the attorney and the jury that must be nurtured through out the trial to maximize the persuasive power of the case. To effectively deliver persuasive openings counsel must carefully structure and deliver their openings using a thoroughly developed knowledge of themselves, the case, and human nature.

Drafting the Opening

The opening statement delivered in the courtroom before the jury must reflect the hard work done by counsel during case investigation, analysis, and preparation. It is controlled by the relevant legal standards, but must also be grounded in an understanding of how to tell a story in a way that grabs the jury’s attention, holds their interest and makes them receptive to the evidence later admitted

Often counsel will begin their opening with a thematic statement setting the stage for the story of the case. These thematic statements catch the jury’s attention and focus them. They serve as an intellectual “shorthand” designed to connect the jury to whatever timeless human theme may be present in the case. Instead of beginning with “once upon a time” they begin with the core concept of the case in way designed to grab the jury’s attention.

Counsel must choose which story, from a myriad of possibilities, they will tell the jury during opening. This story is not a representation of a core truth about the case, but is rather a construct based upon the applicable law and admissible evidence. There is a choice that is implicit in this process - to tell the best version possible ethically while achieving a resolution in favor of the client. These choices not only encourage, but require careful editing based upon the law. The law works in concert with the facts to create the most persuasive presentation.

Creating the story of the case is not an exercise in creative writing, but rather a logical process informed by counsel’s understanding of human nature while also taking into consideration how the jury is likely to react to both the evidence and witnesses. There is an art to this, but it also lends itself to a formulaic series of steps designed to create an interesting presentation. When crafting openings counsel should consider the following storytelling techniques:

Counsel must identify the core story designed to bring the jury to the moment of decision in a way which opens them up to the evidence which will be presented. The story of the case told in the opening is a promise made by counsel to the jury. A promise as to what the case is about. Promises made in court must be kept, or the consequences for failing to keep them will be paid. In telling the story each word matters. 

During case analysis counsel identify those hard questions of fact upon which the case turns. It is important to have a theory dealing with every hard question of fact in the case. Failure to answer the hard questions, either by attempting to ignore them, or inadequately explaining them, can destroy the quality of an opening statement, not to mention the strength of the entire case. The answer to the hard question of fact can be addressed through other facts, attacking the credibility of the witnesses who testify as to the hard questions of fact, or by using the law to reduce the impact of the hard questions of fact. Not only must counsel must identify the hard questions of fact and create a plan for dealing with the hard questions, they must implement the plan. This implementation occurs through out all stages of the trial, flowing from the opening statement, through the examination of witnesses, and into the closing argument.

During the opening statement counsel must take the time to introduce themselves to the jury, identifying whom they represent. Counsel often begin the opening statement by introducing themselves, this is not always the best approach. It may be the accepted practice in a particular jurisdiction to begin by introducing themselves, but just because it is an accepted practice does not necessarily mean that it should be followed without first thinking about it critically.

The judge is required to discuss the standard of proof with the jury during instructions. This conversation often occurs at the close of the case, long after counsel might benefit from underlining and reinforcing the standard, although in some jurisdictions it is also addressed during preliminary matters. It is a best practice to highlight the standard early in the trial process in the hopes that the jury will view the evidence in light of the applicable standard - when such focus benefits the client. Attorneys customarily address the standard of proof at some point during opening statements. This discussion is both legal and procedural, and while it does not directly impact the credibility of evidence or the believability of witnesses, it serves to orient the jury to the interaction of the law and the facts, laying the foundation for the argument to follow during closings. The way in which counsel addresses the standard of proof is situationally dependent, and driven by a variety of factors, to include, the strength of opposing counsel’s case, the emotional impact of the facts, the perceived way in which the jury defines the client, and the moral theme identified during case analysis which will be presented during the trial.

Closing argument is the final destination at trial, the opening statement is the embarkation point, the beginning of the journey so to speak. To begin well is to end well, and proper opening statements connect to the closing argument both directly and obliquely. During opening statements counsel must tell the jury what happened, how the law impacts what occurred, and then explain why the requested relief is the morally right thing to do. The presentation must focus on “what happened” while previewing “how” the law impacts the story, and “why” the case should be decided in their favor.

Counsel must properly balance the facts, law and morality during the opening statement. During openings the presentation should focus on the facts, telling the story in a light most beneficial to the client without ever making promises that will not be kept, misstating evidence, or attempting to improperly persuade. The law is previewed but not discussed in depth, and the moral theme of the case is present at both the beginning and end of the opening statement, while at the same time woven into the fabric of the relevant facts shared through the story of the case.

The prayer for relieve is a term used to describe the request by counsel for a specific outcome in the case. It is important that the jury hear the words from the attorney’s own mouth during the opening statement. Saying the actual words capturing the requested verdict makes them real within the court room. Properly done the prayer for relieve ends the opening statement on an emotional note that reconnects to the theme and theory of the case as it is expressed in the grabber or hook used by counsel.

Balancing the presentation properly, in light of local customs and procedural rules, normally produces an opening statement focused on the relevant facts counsel expects to prove, with sufficient mention of the relevant law to focus the critical listening skills of the jury, surrounded by an emotional, or moral, tone that makes them care about the outcome of the case.

Conclusion

In this post I've shared some ideas about drafting opening statements. Next time we'll take a look at how you should deliver them, a completely different task. Remember always that trial advocacy is an oral skill, stretching back in time to forum of Ancient Rome. We speak truth to power, persuading others - with an emphasis on the speaking part!

Till next time.

CR

The Gift of Vulnerability

Like most of you I have taught in many different countries, but I am always moved when I realize that the skills we teach are truly universal. When you get a chance to teach persuasion in a different country, with a different culture, it is a blessing. Suddenly you are divorced from the cultural shorthand that you normally use to transfer an idea to a student. You are forced to rely upon your ability to clearly define a moment in the performance, and then translate that moment into a teaching opportunity. In a way you are vulnerable when that happens, in much the same way as the student is vulnerable every time they perform in front of you. That vulnerability is a gift. It opens doors to communication and gives you a fresh perspective on things.

I got to experience that vulnerability recently, and am grateful for it. It is amazing that so many of the things that challenge us in advocacy remain the same, regardless of the language, court system, or the like. I saw finger rubbing, ring twirling, add on words, lack of eye contact, all of the things that you see when you teach. I also saw a fierce desire to learn coupled with a belief that practical education in the art of advocacy is a higher level of education and one that is to be sought out at each and every opportunity. I also was reminded of how a deep connection to our cultural roots can infuse our advocacy with humor and passion. Those lawyers, from all over Europe and Asia, see advocacy training as something that is crucial to the quality of their practice, and necessary to their individual growth. Seeing seasoned professionals so focused on skills education was a moving experience and I am grateful for the opportunity to be with them as they continue on their journey as a trial advocate.

It made me think about the joy we get from teaching, from coaching, and from writing. We are blessed to do this for a living, and I just wanted to share that thought with you. It has been a rough few years in legal education, with a few more rough years to follow. We are fortunate to have the compass of skills to guide us through these troubled times. Isn't it nice that everyone else wants to use it too?

All the best,

CR

Our Moral Imperative - a Problem with a Promise

A Moral Imperative - a Problem with Promise

We have a problem - legal education costs to much. Like most problems thought it comes with a promise, whoever is first to reimagine legal education successfully while making it financially viable will own the future - and the future is now.

Depending upon the statistics you choose to quote, a law degree costs somewhere between roughly 84,000 dollars for a state school and 122,000 for a private school. See http://www.admissionsdean.com/paying_for_law_school/law-school-cost-calculator and http://www.forbes.com/sites/robertfarrington/2014/12/18/law-school-and-student-loan-debt-be-careful/. This figure, of course, does not include any debt incurred for undergraduate degrees or other advanced degrees. This fact alone, in conjunction with the multiple stressors experienced by the big firm market, has resulted in a new general belief - for many, law school is not worth the price of admission. Think about that for a moment, the world has fundamentally changed its perception of the value of a law degree over the last 4 years. This slide occurred quickly, and shows no signs of slowing down. Law schools are now experiencing market stressors for which the vast majority of law professors have no frame of reference. It is difficult to find a time in modern legal education, at least since the advent of the Langdelian method of instruction, to use as a guideline when dealing with what now confronts us all.

Law professors, by their very nature, tend to be both risk adverse and insular - they don’t like change. They particularly do not like change when they have been the driving force in the known history of their institution. You cannot blame them for their reticence to consider the idea of transforming the legal education experience. Unfortunately any school that finds itself ranked below the top 50 in U.S. News and World Report is now spending a great deal of time working to “define” themselves so that they may maintain market share. Now market share is not an idea that law schools are comfortable with, but in the ever shrinking world of fewer students, lower budgets, and increased financial stressors on parent universities it is a dirty little reality that cannot be ignored.

We law professors have a moral duty to our students, and one that we cannot pay short shrift to any longer. We must think in a practical and entrepreneurial fashion about the future structure of a legal education experience and we must move quickly to accomplish this change - or risk the loss of our institutions as we know them. I want to suggest today that we might be able, as an academy, to find some common values that should inform the entrepreneurial decisions we must make. Think of them as the best of what should be brought forward combined with the promise of the future. If we begin with a focus on what we value, and then structure our future programs around those values we have a chance to remain relevant, to assist in the rebirth of a valid legal educational experience. But we must do so soon.

So where should those values come from? From both the academic and practical world. They must be values that exist in both places or they are not worth spending our limited resources on. So what would be on your list? Mine would include the following, and as many of you might expect knowing me, it has only three primary components at the meta level :

1. Professional Identity and Personal Ethics

2. Understanding the law

3. Applying the law 

These three considerations should permeate the curriculum, existing in every course, extracurricular activity or faculty service opportunity. If we were to use these three guiding concerns as an agreed upon starting point for reworking the law school experience we could protect the best parts of our scholarly heritage, reenergize our usefulness to the practicing bar, and become more connected to the legal world outside of the walls of our personal ivory towers. It would make for a very different educational experience, one with the potential to be truly immersive. It will also require a different type of law professor, a different administrative structure, and the support, real support, of both the ABA and the AALS if it were to stand a chance of success. 

The entire structure of law school should be reorganized around these three guiding principles. Doing this would transform the educational experience for students, and allow law professors to think anew, to learn again, to become students of the educational process, as opposed to overseers of a antiquated approach. The time is now to change, or run the risk of becoming irrelevant. Next time I will put forth some specific ideas about how a law school might structure the learning experience around these core values.

All the best,

CR

Professional Identity Formation

Professionalism - First, Last, Always

So now that we have talked somewhat about the current state of legal education, how to begin to fix it? I would suggest that we should ground our law school (soon we’ll change the name to law center, but more on that later) of the 21^st century in what makes law school different from other graduate programs - professional identity. Let me discuss briefly why professionalism is important before I explain how we should set about teaching it.

The need for professional identity is a sine quo non for lawyers. We use professional identity to ensure a certain level of professionalism, civility, and more importantly, proper delivery of legal services. We also have a vested self interest as lawyers in the concept of self regulation of the profession, because otherwise we will concede control of the law to outside regulators. 

Now normally that would not be a big deal, particularly given the businessification of the practice of law, (a reality, regardless of any personal feelings you may have on the subject), but for the unique role lawyers play in a democratic society. We speak truth to power, and the law not only allows it, but requires it. Self regulation by the profession, the formation of professional identity, and the internalization of what it means to be a lawyer are the means by which we guarantee the continued rule of law. Our profession’s ability to stand apart from the machinery of government is what gives us the ability to stand up and say no, when everyone arounds us wants a yes - and are not really willing to hear another’s truth. It is the most important thing law schools teach, and the one done most inefficiently and ineffectively.

The ABA standards require that students are taught the model rules of professional responsibility in a minimum 2 credit hour format. Now that two credits is part of the 88-90 credits normally required for graduation. Think about it for a minute, the ABA only requires that roughly 2 percent of a law student’s education address professional responsibility - yet we all know lawyers deal with issues of ethics and professionalism every day. There are a lot of reasons, most of them historical for this approach - but it is not enough, not even close. We have taught professional responsibility as though it were a Sunday School class, and our students have responded to that approach as one might expect - they get the message that this stuff can get you in trouble, but it doesn’t “really” matter, not like the substantive law. That is the wrong approach to developing a professional identity, but it is endemic.

Law Schools can maximize the formation of a positive professional identity by structurally modifying the way in which professional responsibility, as well as professionalism, is taught. This change should have multiple components, to include:

1. Substantive law classes

2. Modeling appropriate behavior

3. Immersive professionalism discussions across the curriculum

1. Substantive Law Classes - Make it 4 credits

This is actually the easiest one to fix. Most law schools currently require a 3 credit course, usually taught in a modified socratic method by one professor in a traditional classroom environment. In our new school we will keep this course (to allow for diversity in delivery), but also offer an opportunity for the doctrinal class to instead be tethered with skills courses where professional responsibility issues often arise - client counseling, negotiations, and mediation. These skills course would revolve around the professional responsibility course, with the various skills problems confronted by the students designed to reflect the doctrinal rules as they are taught in the professional responsibility course. This creates a synergy that is otherwise absent. It would be a good beginning, but not enough.

Most legal writing and substantive law courses in the first year of the curriculum, in fact most required courses, are 4 credits. Professional responsibility should be as well. I would take that one additional credit and make a separate course, one that allowed for the modeling of appropriate behavior, we could call it “Developing Your Professional Identity.” I would require it to be taught by senior members of the law faculty, preferably those in leadership positions, such as the dean of the law school. If not the dean, then a senior respected member who is known for having a developed a professional identity that has withstood the test of time. At my law school I could easily see several of our senior faculty teaching this course, and the students would be immeasurably better from spending quality time learning why and how their decisions about the lawyer they will be matter so much. This would allow students to experience mentoring at its best, and bring our most trusted and beloved professors forward into the light, where they belong. I must confess that is how I learned it at Notre Dame and though is has been over two decades those lessons are still fresh in my mind.

2. Modeling Appropriate Behavior

As mentioned above modeling would work as the basis for the 1 credit class added to the curriculum, but our school will go beyond this, making professionalism a core component of our orientation process, extracurricular activities, and on campus presentations. This would flow over into the school’s pro bono program, and eventually make its way into the very fabric of the institution, its alumni, and student body. Clients and the profession would both benefit in an astounding way. It would also mirror the actual way it works in the real world - we mentor, we model, we walk the walk, which allows us to talk the talk. This would serve the added benefit of exposing our students, in a controlled environment, to what they should expect in their internships, clinics, summer placements, and eventual first job - while also helping them to develop the skills necessary to maximize their success in these endeavors. When an institution loses sight of the core need to do the right thing when no one is looking it is in distress, internalizing these values would protect higher education in the legal arena while also growing good lawyers - a win win.

3. Immersive Professionalism Discussions Across the Curriculum

The substantive curriculum in our new law school will be arranged quite differently (more about that in a subsequent post), but regardless of the structure of our curriculum in the future, learning outcomes and competencies concerning professionalism must be built into every course. We all know that each component of the law has an ethical issue attached to it. Each of us have experienced ethical questions as part of a substantive law course - they should not only be answered, but prepositioned as additional components of the course of instruction. If we break down the silos of traditional legal education this will be easier to accomplish, but we can even do it now using our current structure. The ABAs recent focus on learning outcomes will assist us in convincing less forward leaning faculty on the efficacy of this approach as well. It does not require a lot of time, but the benefit is immense.

If we truly want the profession of law to remain a profession we must substantively alter the way in which we teach it, support it, and live it. The richness of the conversations that would ensue, with the fabric of the law behind it all, would be tremendous boon for our students. Professional identify could then become one of the fundamental colors woven through the tapestry of the student’s law school experience, instead of a lovely, but nearly unnecessary fringe. Next time we’ll talk about how to arrange an appropriate curriculum for this new type of law school, and how changing it will transform the position of law schools within the legal community.

All the best,

CR

Welcome to the law school of the future!

It is the first day of law school, and you are excited. You have completed your online preparatory work, and you think you are ready to begin this journey. You spend the morning processing through the expected administrative details, take the student oath of professional conduct and now you are going to your learning space. You call it yours because you have been told by student services that your working group will collectively use this space for all of your course work this year. Your section has 32 students in it, and you’ve been assigned to one of the three professors you designated based upon your projected career path as identified by the extensive conversations, interviews, and surveys conducted with students services. You have always dreamed about being a plaintiff lawyer, and you cannot wait to get started.  You’ve heard, but you think it is just a rumor, that you may get your first case assignment today. There is no way you could possibly start law school with a client, even in a teaching environment. But who knows?