OPENING STATEMENTS AND

CLOSING ARGUMENTS 101

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TABLE OF CONTENTS

1. Presentation Slides 2. Preparing and Delivering Closing Arguments: Examples Sonia O’Donnell

1

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Opening Statements and Closing

Arguments 101

Thursday, April 24, 2014 | 1:00 PM Eastern Sponsored by the ABA Section of Litigation and the

ABA Center for Professional Development

Opening Statements and

Closing Arguments 101:

An Overview

Julianne Farnsworth

Farnsworth Law Firm LLC

Charleston, South Carolina

Julianne @farnsworthlaw.com

“Mankind makes far more

determination by hatred,

or love, or desire, or anger,

or grief, or joy, or feelings…

than from regard to truth, or any

settled maxim or principle…”

2 Cicero De Oratore XLII

(Harvard Univ. Press 1988)

FOR ADDITIONAL INFORMATION:

Anatomy of a Trial: A Handbook For Young Lawyers

Paul Mark Sandler

2011 American Bar Association

The Lost Art: An Advocate’s Guide To Effective Closing Argument

Judge Joseph F Anderson Jr.

(3d ed. 2008)

PREPARING AND

DELIVERING

AN EFFECTIVE

OPENING

STATEMENT

Bill Geraghty

Managing Partner | SHB Miami

“Every lawyer has three arguments –

the argument he plans, the one he makes,

and the one he wishes he had made.”

Archibald Cox

Why Is the Opening Statement

So Important?

1. Only have one

chance to make a

first impression

3. Establishes your

credibility with the jury

2. Most jurors decide

who they think should

win after voir dire and

opening

4. Demonstrates your

sincerity, knowledge of

the facts, confidence,

and likeability

Preparation Is Key

1. There is no such

thing as being over-

prepared

3. Write it; Read it;

Rewrite it;

Practice it out loud

[Many times!]

2. Effective delivery

requires that you be

prepared

4. Organize and

sequence key points

How to Structure an Opening

Statement?

1. Tell the jury who you are, why you are there,

and what the jury will decide

2. Frame the issues

3. Introduce your theme of the case

4. Tell a compelling story

5. Link the important facts to the issues the

jury will decide

6. Finish strong with your theme

Strategic Considerations

1. Be careful what you promise:

– Will you be able to admit the evidence to support

your points?

2. Play devil’s advocate:

– What is the other side going to argue?

3. Don’t hide the ball:

– Embrace weak points, but explain why they

do not matter.

Key Communication Points

1. Make eye contact

2. Use an appropriate tone and a measured pace

– even and conversational

3. Do not argue your case!

4. Move with a purpose

5. Incorporate demonstratives into presentation

William P. Geraghty Managing Partner | SHB Miami

(305) 358-5171

wgeraghty@shb.com

Preparing and Delivering Effective Closing Arguments

Sonia O’Donnell

Partner | Carlton Fields Jorden Burt P.A.

I. Preparation

■ Preparation begins long before the trial

■ Know your case

■ Prepare your theme or theory of the case

■ Review your evidence

■ Organize your thoughts

■ Brainstorm if possible with other attorneys

in your team or with consultants

■ Practice

II. How Do You Do It?

CLOSING ■ Don’t read your closing

■ Engage the audience immediately

■ Keep it simple

■ Don’t try to be someone you are not ■ Know what suits you best

■ Use your passion and emotion in a way that is most effective for you

■ Even in commercial case, passion is important ■ Survival of your client’s business may hinge on the

outcome

■ Connect with the jury

■ Utilize non-verbal communication

II. How Do You Do It?

■ Invoke both logic and emotion

■ Tell your story, always going back to your

theme

■ This is your opportunity to explain to the

jury how the law applies to your case in

terms that the jury can understand and to

make the jury instructions real

II. How Do You Do It?

■ Bring facts into the law

■ Remind the jury about specific evidence

■ Tie the evidence to the law

■ Use demonstrative evidence

■ Visuals can help with recall

■ Confront contrary evidence

■ Explain the other side’s weaknesses to the

jury

■ Maintain credibility

II. How Do You Do It?

■ Tell the jury what you want them to do

■ Closing is the time to argue, don’t just

summarize the evidence

II. How Do You Do It?

■ Rebuttal should be prepared ahead

■ Anticipate the other side’s closing

■ Pick a theme but also listen carefully to the

other side

■ You will likely have to conform your rebuttal

and you will not have much time

■ Don’t try to rebut everything

III. Some Things to Avoid

■ Don’t misstate the law or facts

■ Avoid “Golden Rule” arguments which ask jurors to put themselves in the shoes of a party

■ If prosecutor, should not comment on defendants silence

■ Avoid reference to excluded evidence

■ Avoid personal attacks

■ If the other side makes an impermissible comment, object. Otherwise you may waive the error.

Sonia O’Donnell Partner | Carlton Fields Jorden Burt P.A.

305.347.6848

sodonnell@CFJBLaw.com

2

Preparing and Delivering Effective Closing Arguments EXAMPLES

Sonia O’Donnell

Partner | Carlton Fields Jorden Burt P.A.

April 24, 2014

Some Examples (CLOSING ARGUMENT)

In a book, “The Case Against The General, Manuel Noriega and The Politics of American Justice,” the author, Steve Albert, describes the beginning of the government’s closing:

Malman walked to the lectern and set down his notes.

“Ladies and gentlemen of the jury,” he began, “Manuel Antonio Noriega was a man of great, great power. He had the ear of Cuban premiers and Colombian ex-presidents. He used his power to deceive the DEA on a daily basis with sanitized and controlled information. While he used his power to trick and fool the DEA, the CIA, and the gringos with phony cooperation, he sold his uniform, his army, and his protection to a murderous international criminal gang known as the cocaine cartel of Medellἰn, Colombia. For millions and millions of dollars in cash, they bought that man, that man and his uniform, to do their corrupt and dirty bidding.

“He was the classic military dictator, but as the evidence unfolded before you over these past months, it proved Manuel Antonio Noreiga [sic] was nothing more than the corrupt, crooked, and rotten cop – Officer Noriega, as Carlos Lehder called him. Nothing more. Nothing less.”

The author describes Prosecutor Malman’s style:

Malman spoke softly and evenly, hardly looking at his notes. He stood to the side of the lectern where the jurors could take his full measure.

Some Examples “After all the showboating and the smart remarks and the double-talk and the flash and the glitter is over, ladies and gentlemen, the trial is one thing and one thing only: a search for the truth. I will attempt to the best of my ability to present arguments to you, arguments that flow from the evidence, from the sixty-one witnesses called by the United States and the nineteen called by the defendant and the thousands and thousands of pages of evidence.”

“The issue in this case is one and one alone, and that is, that Manuel Antonio Noriega using his position and his role as the general of the Panama Defense Forces and the general of the G-2 intelligence of Panama, took part in this conspiracy, and a criminal enterprise.”

As noted in the book, Malman confronted the other side’s argument:

“The issue is not whether or not Manuel Antonio Noriega could play the good cop when he wanted, to the extent he wanted, in his own backyard and on his own terms. That’s not an issue, and we’ll discuss that later on. The issue is not whether or not some of the amounts of cocaine charged are different [from] those in the indictment. The actual amount of cocaine is not an issue in the case. What is an issue is that it was cocaine and it was sent here … .

Some Examples Malman told the jury what the Judge had ruled on the law:

There was no issue of jurisdiction Malman told the jurors. The judge had decided that. That was not their concern. The issue was not politics. Politics, the judge had also ruled, played no part in this case, Malman said. “The issue at hand,” he said, looking at the first row of the jury box, was simple: “Did Manuel Antonio Noreiga [sic] commit these crimes?” Malman paused a moment again.

Malman called upon the jury’s common sense:

“You’re probably saying, ‘Well, we’re about to begin our deliberations, how do we go about doing this task?’”

The book describes Malman’s voice as reassuring.

“Well, jurors have been reaching verdicts in American courtrooms for two hundred years. The most important tool that you need to decide this case – it’s something that each and every one of you has brought to us in this courtroom – that’s your God-given common sense, reason, intelligence, judgment. When it comes to those facts, when it comes to deciding who is telling the truth, when it comes to deciding what’s what and what happened and searching for the truth – common sense. There’s no substitute for it.”

Some Examples (THE DEFENSE)

Richard Sharpstein was a well known criminal defense attorneys in Miami. Roy Black, another criminal defense attorney, said of Richard Sharpstein’s style: “He was a performer, florid, uninhibited. He physically acted out the story of his case ….”

Richard’s closings had to be heard. You can catch some of the flavor of one of his closings by going to: http://stluciecriminallaw.com/blog/richard-sharpstein-a-tape-surfaces/.

To be fully appreciated, his closings had to be experienced.

As Black said, Richard added “intricate stage craft to his storytelling. He loved acting out various roles ….”

Some Examples Below are some excerpts of one of Richard Sharpstein’s closings for the defense.

He immediately makes it real for the jury:

MR. SHARPSTEIN: May it please the Court, members of the prosecution, Mr. Toll, ladies and gentlemen, members of the jury.

You’ve spent a few weeks with us here, and it was ironic that we took a break in between here for July 4th. July 4th, as we celebrate, all of us, the birth of our country, the independence day, the Declaration of Independence, the founding fathers, who started this country and based this country, among other things, on a Bill of Rights that was really designed to construct a criminal justice system that was fair to individuals who were accused by the government of crimes. That’s really what it is. Because if you look at the first ten amendments, most of them deal with a right to a criminal defendant to be tried in a court by a jury of his peers, to be presumed innocent until and unless the government can present a case and prove by evidence beyond a reasonable doubt in the juror’s mind that he’s guilty of crimes. And the right to confront witnesses, so the jury can see them and things of that nature. And that’s why you’re here. And that’s why we are glad that you’re here, and that’s why your job now begins, because mine is about to end.

Some Examples He tries to make his clients real:

I, as a lawyer, have tried to do everything I can to show you this case as it really is or really isn’t. I represent an individual accused of a crime, Mr. Toll. You’ve heard his name bantered about. You’ve seen him sitting in front of you. He’s here.

It’s now up to you, based upon what you’ve heard or haven’t heard, based upon what you believe beyond a reasonable doubt or not, to decide his fate, his liberty, through your justice. As I told you at the opening, this will be in your hands. You must decide. Is he a crook? Is he a thief? Is he a swindler? Is he a fraud? Or is he a man who was caught up in the midst of a maelstrom, a hurricane of fraud around him. And he, like many other people, didn’t know.

This is a story that you’ve heard. It’s almost – as I sit here and listen to the prosecutor try to convince you beyond a reasonable doubt they’ve proven a case against my client, and I listen to them present witnesses, or not call and present witnesses, it’s amazing. Because they are completely and totally unaware or hiding from or pretending that things occurred that didn’t occur – occurred that didn’t.

Some Examples He tells his story:

This case is about a man named Claudio Osorio – Claudio Osorio and his wife and the scams they might have pulled on other people, and the fraud, and the way they hid it. But they didn’t hide in corners. Although you learn Mr. Osorio, who was a big picture guy, who hid in his office, with the books, with the records, with the bank accounts he wouldn’t share, with his controller and his CFO, with his – Elba Gamboa, a woman who signed the accounts, did the records, hid the records. Claudio, can I send this to him? No. We’ve shown you all of that. That’s Mr. Osorio.

But to the world, he was a big shot. You heard that. He didn’t just pop in here. He was a big shot. He’d had other companies. He made a lot of money. Yes, Mr. Toll worked for him, like Mr. Carness and Mr. Falk and some of the people you saw and a lot you heard about. Hundreds of people. Hundreds, who all believed in him and thought he was real.

Yeah, there was fraud here. There was rampant fraud. There was incredible, incredible gall done by Mr. Osorio, who on the outside was gallivanting around town, a bon vivant with politicians, going to the White House. Everybody thought he was a real guy, but he wasn’t. He was just another loser, another loser in Florida, another great story for the front pages of the papers. Another one. Oh, my God.

Some Examples He continues with his story — that many people were fooled by the scam, including his client:

Wouldn't even think Hillary Clinton -- did you see her come in here? Bill Clinton? Do you think they're gonna come in here now? You know what they would say? Yeah, we stood by the guy, because we thought he was real. You know, that's the ex-president. George Bush's brother, Jeb Bush. Barack Obama. General Wesley Clark. George Perez, huge developer. They all stood by him. They stood by him. They touted him. They were

sold by him. They were sold by him, the same way my client was at a far lesser level.

You didn't hear about him going out partying with anybody, going to Star Island. The only time he went to Star Island was to get called on the carpet by Amarilis – your salary's cut, your allowance is cut, go to your room.

Should he have walked out? You heard Lewis, sure. But it was a job.

Some Examples He tells the jury what he wants them to do:

And unless you feel beyond and to the exclusion of every reasonable doubt my client is guilty, you must say so collectively. That's your job, your job. I've tried to do my job here, but I can't do it anymore. You've heard from me. You won't have to listen to me anymore. But I hand you the wreath of justice, so that you can carry it and do the right thing with your verdict, that you can save a man from an injustice, that you can save another victim from Claudio Osorio.

Do what you know is the right thing here. Do justice. Speak it with your verdict of not guilty.

Case: 1:12-cr-20901-WPD FL.S.D.

Some Examples (THE REBUTTAL)

The book, “The Case Against the General,” describes the rebuttal in the Noriega case. You’ve seen excerpts of the closing already. The defense had argued that this was a political prosecution.

This case, he began, “has nothing to do with politics. It has everything to with Manuel Noriega’s ability to facilitate drug trafficking through Panama on behalf of the Medellἰn cartel. He controlled everything in that country, from the airports to the seaport in Colὀn. He controlled the attorney general’s office. He overthrew the president. He could make anyone do his will in Panama. Isn’t that a commodity worth buying for the chieftains of the cartel? All they did in all their business was buy crooked cops.”

The book describes Prosecutor Sullivan’s demeanor:

Looking first at the jury and then toward Noriega, Sullivan said, “Whatever happens, the defendant has had due process. That’s all anyone can ask.”

No flash, no theatrics.

Tips

Advice from Richard Sharpstein (handwritten notes)

■ Communicate!

■ Release the Podium

■ Be yourself

■ Connect the Dots

■ No “Lawyer Speak”

■ Don’t just read instructions – highlight – guide

■ Address Bad Evidence don’t repeat it

■ Themes – But don’t force-feed the theme

■ Rebut the state for the other side

■ “Shove it to them”

■ Know your audience

■ Keep up with current affairs

■ Keep your finger on the Pulse of America

■ Read = Look, Listen, absorb

Sonia O’Donnell Partner | Carlton Fields Jorden Burt P.A.

305.347.6848

sodonnell@CFJBLaw.com