From 100 days through Opening Statement: Course 3: Opening Statement Cynthia McGuinn Miles Cooper...

From 100 days through From 100 days through Opening Statement:Opening Statement:

Course 3: Opening Course 3: Opening StatementStatement

Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● [email protected]

How to Be Prepared to Prepare How to Be Prepared to Prepare Your Opening StatementYour Opening StatementTab in Trial Binder

◦Ideas for themes Plaintiff case Defendant case

◦Key documents Plaintiff Defendant

◦Key witness testimony Plaintiff Defendant


Legal Principles Governing Legal Principles Governing Opening StatementsOpening 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); 631.7 (bench trial)


Court Rules & Procedures 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)


Order of PresentationOrder of PresentationPossible 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


Scope of Opening StatementScope of Opening StatementDescription of facts & supporting evidence

◦Duty◦Breach◦Causation◦Damages

Theory of case

Brief statements of law (discretionary)

References to pleadings (discretionary)


Opening Statement TechniquesOpening 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”


Aggressive Advocacy is Proper…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.


……Flagrant Misconduct Isn’tFlagrant 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.


Example: Example: Love v. WolfLove 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


The price of crossing the line: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.”


Prof. Lubet’s “Argument” TestsProf. 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?”


Opening Statement StructureOpening Statement Structure


Allocating time: Liability (negligence/causation) vs. Damages Ratio

Importance of outlining key areas:

IntroductionThe 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 futureFuture Medical Care*Vocational impact*

*weave in general damages compare & contrast witness testimony

Discussion of dollar damages-special and general

Challenges to Legal Challenges to Legal Sufficiency 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.”


Curing Legal Insufficiency 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.


ReferencesReferences

Levine, Opening Statement (TRG 2005)

David Ball on Damages (2d ed. 2005)

Keenan & Ball, Reptile (2009)

AAJ Rules of the Road seminar


From 100 days through Opening Statement: Course 3: Opening Statement Cynthia McGuinn Miles Cooper...

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