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From 100 days through Opening Statement: Course 3: Opening Statement

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1 From 100 days through Opening Statement: Course 3: Opening Statement
Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● ●

2 How to Be Prepared to Prepare Your Opening Statement
Tab in Trial Binder Ideas for themes Plaintiff case Defendant case Key documents Plaintiff Defendant Key witness testimony Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● ●

3 Legal Principles Governing Opening Statements
Purpose: To prepare the minds of the jury to follow the evidence and to more readily discern its materiality, force and effect through an overview of the issues involved in a case and the facts each party expects the evidence will prove. P. v. Arnold (1926) 199 Cal. 471, 486. Matter of Right: California Code of Civil Procedure § 607 (jury trial); (bench trial) P. v. Arnold (1926) 199 Cal. 471, 486. Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● ●

4 Court Rules & Procedures
Time limits “No man’s (or no women’s) land” Mechanics of technology Availability of podium, chalkboard, etc Propriety of statements of law (discretionary) Propriety of referring to pleadings (discretionary) Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● ●

5 Order of Presentation Possible mini-opening before voir dire
Standard order: Plaintiff goes first Defendant may follow or reserve Court has discretion to change order for “special reasons” (CCP § 607) Example: Sole issue is an affirmative defense Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● ●

6 Scope of Opening Statement
Description of facts & supporting evidence Duty Breach Causation Damages Theory of case Brief statements of law (discretionary) References to pleadings (discretionary) Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● ●

7 Opening Statement Techniques
Use of demonstratives (e.g., PowerPoint) Use “Rules of the Road” Reference Burden of Proof Start thematically—tie to evidence Factual persuasion aka “aggressive advocacy” Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● ●

8 Aggressive Advocacy is Proper…
Trial attorneys permitted considerable latitude: “Aggressive advocacy is not only proper but desirable. Our jurisprudence is built upon a firm belief in the adversary system…. Juries, characteristically composed of average men and women, may be assumed able to withstand substantial blandishments without surrendering their ability to reason soberly and fairly. Recognizing these factors, reviewing courts are not, and should not be, overly eager to reverse for conduct which is merely moderately captious.” Love v. Wolf (1964) 226 Cal.App.2d 378, 393. Love v. Wolf (1964) 226 Cal.App.2d 378, 393. Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● ●

9 …Flagrant Misconduct Isn’t
But there is a limit: “The misconduct here was intentional, blatant, and continuous from opening statement, throughout the trial, to closing argument.” Love v. Wolf (1964) 226 Cal.App.2d 378, 393. Love v. Wolf (1964) 226 Cal.App.2d 378, 393. Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● ●

10 Example: Love v. Wolf After Parke-Davis “started to use this stuff all over the country came reports of people dying from it, people suffering from aplastic anemia and dying.” Chloromycetin should never have been on the market and that “what I have talked about now so far is evidence of absolute flagrant, wanton, negligence of failure to have any regard at all for humanity and the safety of people using this stuff.” “And all this time they knew that what it [chloromycetin] caused was nothing-it was only death. That is what it was causing, death.” Unfounded allegations that Parke-Davis had bribed the FDA to get approval Love v. Wolf (1964) 226 Cal.App.2d 378, Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● ●

11 The price of crossing the line:
“Misconduct of plaintiff's trial counsel, egregious beyond any in our experience or that related in any reported case brought to our attention has resulted in an unfair trial, a miscarriage of justice and requires us to reverse the judgment.” Love v. Wolf (1964) 226 Cal.App.2d 378, 382. Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● ●

12 Prof. Lubet’s “Argument” Tests
Witness Test: If a witness will be able to testify to the “facts,” then opening is permissible. Verification Test: Can the assertion be verified? Link Test: Do “facts” have independent evidentiary value or must counsel provide “rhetorical link in probative chain?” Lubet, The Opening Moment, 34 S. Tex.L.Rev. 109, 115 (1993) Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● ●

13 Opening Statement Structure
Allocating time: Liability (negligence/causation) vs. Damages Ratio Importance of outlining key areas: Introduction The Rules & their application here  Description of harms and losses     What I am doing in Opening  The Event Impact of event to date (e.g.) What doctors found*  Relevant anatomy* Course of treatment* Condition today* *weave in general damages; compare & contrast witness testimony Impact of event on plaintiff in the future Future Medical Care* Vocational impact* *weave in general damages Discussion of dollar damages-special and general Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● ●

14 Challenges to Legal Sufficiency
Nonsuit: Challenge to plaintiff’s case M. for Directed Verdict: Challenge to defendant’s case Standard: “[I]t is clear that counsel has undertaken to state all of the facts which he expects to prove, and it is plainly evident that the facts thus to be proved will not constitute a cause of action or a defense, as the case may be.” Bias v. Reed (1914) 169 Cal. 33, 37. Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● ●

15 Curing Legal Insufficiency
Counsel normally permitted to reopen statement and cure defects: Reasonable opportunity should be given to set up a cause of action if there is one. Permission to enlarge opening statement primarily in discretion of trial court Discretion to be exercised liberally so plaintiff with a cause of action can present it to jury even when counsel initially failed to state in detail necessary facts proposed to proven. Rodin v. Amer. Can Co. (1955) 133 Cal.App.2d 524, 534. Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● ●

16 References Levine, Opening Statement (TRG 2005)
David Ball on Damages (2d ed. 2005) Keenan & Ball, Reptile (2009) AAJ Rules of the Road seminar Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● ●


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