The following has been adapted from Paul Mark Sandler's new book, Anatomy of a Trial: Theory in Practice, forthcoming from The Maryland Institute for Continuing Professional Education of Lawyers. The book discusses a particular case, United States of America vs. David Rosen, to illustrate practice pointers on opening statement, direct and cross examination, and closing argument. The defense and prosecution’s opening statements in the Rosen case have been posted in full at www.shapirosher.com/openingstatements.htm.
No conversation about opening statements — or any aspect of courtroom advocacy, for that matter — is complete without some discussion of style and delivery. Give two lawyers the same case for an opening, and in presenting it they will make two distinct impressions upon a jury.
The manner in which words are conveyed is as important as the words themselves. Preparations for opening statement should always include some consideration of style and delivery. Body language, word choice, rhythm, the use of figurative language, and demonstrations of emotion are all elements of style and delivery that can help persuade or dissuade jurors.
While style may be considered the form in which you present your ideas (language, analogies, the structure of an argument), delivery involves gestures, expression, the regulation of voice, and the like. When Demosthenes was supposedly asked to rank the three most important parts of argument, he responded: “Delivery, Delivery and Delivery.”
When it comes to courtroom style, there are really no hard and fast rules, though you should always “be yourself.” A lawyer who copies another’s style may come off as insincere, contrived, even foolish. That said, observing other advocates at work in the courtroom can teach you valuable lessons and help you be more effective in your own way.
Experienced trial lawyers will use facial expressions and eye contact, vary their rate of speech and tone of voice, and rely on dramatic pauses to enhance delivery during opening statement. “Anchors” are another helpful technique; an “anchor” is a kind of rhetorical shorthand for a point you want to emphasize without restating. By speaking in a certain way or making a certain gesture at the mention of a particular witness, for instance, you can concisely convey your disapproval of his testimony.
Humor and understatement can also be helpful. In the U.S.A. v. David Rosen, one of the prosecution’s aims in opening statement was to portray the Hillary Clinton fundraiser in question as excessively lavish and expensive. Thus, the prosecutor mentioned a few of the more extraordinary features of the event, including the decision to give director’s chairs to the guests: “Someone came up with the idea to give away the chairs as souvenirs. You will hear that everyone had a director’s chair with stencil in the back commemorating the event. Why don’t we give away the chairs? That will be a nice touch. They gave away $35,000 worth of chairs.”
All stylistic technique comes down to the essential challenge facing the trial lawyer during opening statement: to engage and persuade the jurors at the same time. But given that persuasion is most often accomplished when the listener can credit him/herself with arriving at a conclusion on his or her own, a heavy-handed style can turn against you.
Several techniques can be used to help jurors reach their “own” conclusions. Rhetorical questions, embedded commands, and pacing are a few examples. A rhetorical question, of course, is one used to make a point more than to actually pose a question. The embedded command can engage both the conscious and unconscious mind and leads the juror to particular point of view.
For example, the defense in the Rosen case wanted the jurors to be highly skeptical of the prosecution’s claims regarding the costs incurred by the Clinton fundraiser. (The defendant had been accused of causing false reports about those costs to be filed with the FEC.) Thus, toward the end of the defense opening, counsel stated:“The most significant and, really, the heart of the case of underreporting relates to the costs for we are going to call the concert. No one knows, to this day, what the concert costs. You will hear that some people say two million. Some people say one million. I think the government now takes the position 1.2 million.” With this series of assertions, defense counsel sought to tacitly “command” the listener to doubt the “heart” of the government’s case.
Pacing is the technique of determining a listener’s mind, acknowledging that position, and leading the juror to the position you advocate. For example, later in the case, defense counsel told the jury: “I know that you have concerns that [Rosen] did not report the use of the office space as a campaign contribution but still he did not intentionally ignore the obligation to report it. Even today the law is confusing on this aspect.”
Immunization
Just as it is sometimes appropriate to acknowledge that your listener may hold an adverse point of view, it may be helpful during opening to mention facts or testimony that could cut against your case.
This consideration is especially important to parties who open first. Nevertheless, in a criminal trial, the defense may want to touch upon damaging facts or testimony the prosecutor chose not to mention in its opening.
The doctrine of immunization comes into play here. You tell the listener in summary fashion about the expected adverse argument or testimony and then provide a response. In the Rosen case, defense counsel sought to immunize the juror against a particular witness:
Well, you’re going to hear testimony from one of [Rosen]’s friends, a Mr. Jim Levin. The Court will call him. And this individual is going to say, David Rosen and I, we knew about this, and David told me that he was going to hide things and we’ll keep it all secret. But the — you won’t believe that, and I will prove to you that it’s not credible. That individual, Mr. Jim Levin, just two days ago signed a plea agreement, because he has his own criminal problems. And in order to get benefit for himself he is coming to court, and he will talk to you about what David Rosen supposedly said to him.
The goal in thus flagging upcoming adverse testimony is to take the wind out of your opponent’s sails. Immunization can be very helpful during opening statement, one of your best chances to portray your opponent’s case in a negative light.
In the following weeks, we will review excerpts of the opening statements in the Rosen case and consider the Honorable Marvin J. Garbis’ observations on these openings.