In mock trial, like the legal profession, litigation is taught trial-by-fire. And every great litigator-- at every level-- uses three key steps in becoming a skilled advocate. The competition for the fact-finder’s imagination begins the first time you and your opposing counsel speak.This moment is crucial.If you can place a mental image in the minds of the judge or jury, you can directly influence the way they interpret the evidence at trial. The legal function of an opening statement is to assist the trier of fact in understanding the evidence to be presented at trial.While we hope the evidence will be self-explanatory, even in the best-organized trials evidence is often developed in a disjointed manner. To reduce this confusion, the courts developed the concept of the opening statement.The opening statement gives the parties the opportunity to present an overview of the case at the beginning of the trial so as to better equip the fact-finder to make sense of the evidence as it is presented.This chance to give an overview of the expected testimony, however, is not an invitation to argue about it. The “nonargument rule” states that opening statements may only be used to inform the trier of fact of “what the evidence will show.”Thus, lawyers are restricted to offering a preview of the anticipated testimony, exhibits, and other evidence.This limitation results in a highly stylized set of rules for the presentation of opening statements, as lawyers strive to influence the fact-finder without crossing the line into prohibited argument. Your goal in presenting an opening statement should be to use it as an opportunity to advance your theory of the case.This is not as easy nor as obvious as it may sound. The rules of evidence used in your mock trial govern what evidence is admitted at trial.Since the admission of a piece of evidence is left to the discretion of the presiding judge, you may not know exactly what facts will come out at trial when you are preparing your opening statement.To complicate matters, opening statements are limited to admissible evidence.The best method, then, is to use only those facts for which you have a reasonable theory of admissibility. In addition to limiting your opening to only the facts that you believe will be admissible at trial, there are other specific rules that set forth the manner in which you may present your opening statement.Once you understand these rules, you can begin to plan exactly what you will say.Before we address these rules, however, we will briefly summarize the techniques you should follow when delivering your opening statement. Most judges recognize that “argument” is a relative concept and allows lawyers a reasonable amount of latitude.As with many other rules we have discussed, application of this rule will vary by competition and by presiding judge. To help you through the uncertainty involved in determining whether a statement is an argument, ask yourself the following questions: Am I interpreting the evidence? Am I urging the fact-finder to draw inferences from the facts? Am I explaining the importance of a certain piece of evidence or suggesting the weight it should be given in the fact-finder’s deliberations? Am I appealing overtly to the fact-finder’s sense of mercy or justice? ![]() If the answer to any of these questions is or possibly could be “yes” you are probably arguing. To illustrate to the application of our test, consider the following portions of opening statements that are based on a personal injury case: Just before the accident the plaintiff was sitting in a bar.In less than an hour and a half he consumed at least four shots of Everclear.He bought a round for the house and then he left. He left in his car.The accident occurred within the next twenty minutes. Cheat code editor for r4 ds card not working. The plaintiff was obviously drunk.No person could drink four shots of Everclear in that amount of time without feeling it. Only an alcoholic or a liar would claim to have been sober under those circumstances. The first examplepasses our test since the bartender will testify to the facts contained un the first three sentences and the police will verify the remainder of the information.The second example is more problematic.To begin, the drunkenness of the plaintiff is an inference lased on the lawyer’s conclusion “no person could drink four shots of Everclear” without feeling it.Calling the plaintiff “an alcoholic or a liar” is pure argument, since it characterizes the plaintiff’s behavior.Thus, the second example fails our test and is therefore improper. In addition to the words you speak, a variety of other considerations may lead a judge to conclude that your opening statement has crossed the line into argument.A statement can be transformed into an argument simply by the way in which it is spoken, including the use of sarcasm, volume, or vocal caricature. In addition, the use of rhetorical questions is inherently argumentative.For example, a suggestion of disbelief as in, “What could he possibly have been thinking of?” or a suggestion of incontrovertible certainty, “What other answer could there be?”Questions like these strongly signal argument when used in an opening statement.
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