Opening Statements & Closing Arguments

Eric J. Bengtson, Esq.

Civil defense attorney (No criminal stuff!)

Davis & Young, APLC

A trial summed up in a few words

First: "We tell 'em what were gonna tell 'em," (opening statement);

Second, "We tell 'em," (direct and cross-examination); and

Third, "We tell 'em what we told 'em," (closing argument). 

Opening Statements

Jurors Love a Good StoryBe a storyteller

Drama, intrigue, excitement

Don’t make your jurors work to understand your storyChronological Avoid asides or interruptions to the flow of the

story

Focus on your first four minutes

Cast of CharactersLet the jury know who is involved

Help the jury understand which witnesses should be trusted and which witnesses should not

Your Story Can Win the Case

Studies have shown that despite what the judge says, 80 percent of all jurors form their opinion of the case either during or immediately after opening statements.

If the evidence presented during the trial is consistent with your story, you’re usually on your way to a win

Use Normal Words

Avoid “lawyer” words

Remember, you’re telling a story

You don’t need to use the phrase “The evidence will show.”

Give the Jurors Something to Look AtPowerPoint Presentation PhotosDocumentMapPhysical Evidence (gun, knife, etc.)

Note: Need permission from judge and usually from the opposing attorney to use evidence during opening

What is your "theory" of the case? "This case is about…..”

Short paragraph explaining what your case is about and why you should win it.

Weave your theme into the story

What to call the defendantProsecutor: Always refer to the defendant as

“The Defendant”

Defense Attorney: Never refer to your client as the defendantUse your client’s name

Be PhysicalSo long as the judge will let you, move around the

courtroom.

Prosecutors: Point at the accused, deliver part of statements while glaring at the bad-defendant

Defense Attorneys: Point at prosecutors, look accusingly at the prosecutor when talking about police overreaching, crime lab screw ups, etc.

Use hand gestures

Rehearse, Rehearse, RehearseKnow your story inside and out

Practice with a stopwatch again and again

Videotape yourself with a cell phone

Write out what you want to say, then practice, then revise

Closing Arguments

Say what needs to be said and stop

Lawyers never get tired of hearing themselves talk, but jurors do

Focus on the key elements of the case

Highlight inconsistencies and weaknesses in the opposition’s case

DeliveryMove around, but don’t pace (5-10 feet away

from jury)

Use the physical evidence

Change the tone of your voice

Don’t be afraid to be passionateShow the jury you care and you believe in your

case

The Elements of the CrimeTalk about the elements that need to be met

in order for a guilty verdict

Show the elements on a projector

Show jury quotes from witness testimony that support your case

Burden of ProofCriminal: Beyond Reasonable Doubt

Usually most effective for the defendant

Point out that if the jury thinks that the defendant “might have”, “could have”, “possibly did” or even “probably did” that this is not “beyond a reasonable doubt.”

Circle back to opening statementRemind jury what you told them during your

opening statement

Point out the important areas where the evidence (testimony) was consistent with the story you told at the beginning of the case

Point out areas where opposing side’s opening statement was not supported by the evidence

Don't read your argument!

It’s okay to write out your argument beforehand, but it should not be used during the argument

You’re a story-teller

You’re convincing because you know the evidence and you know why the evidence proves your case

Thank the Jurors

Let jurors know you and your client appreciate their willingness to spend their valuable time deciding this case

Finish strong with a call to action

Tell the jury what they should do

“You should find the Defendant guilty”

“You should find the Defendant not guilty”

Questions/Comments