There has been a long-running debate among trial lawyers as to whether the opening or the closing is the most important part of a trial. Good arguments can be made on either side of this question. What few experienced practitioners will dispute is that openings and closings (in whatever order you rank them) are the two most important aspects of a trial. In order to be a successful litigator, these tasks must be mastered. This article gives some insight on how to achieve that mastery.
The first section will detail important guidelines which should be followed in making effective openings and closings. The second section analyzes federal and New York State case law to see what should not be said in opening or closing (upon pain of causing reversal or grant of a new trial.)
Ten Things You Should Do in Opening and Closing
- Connect with the Jury. Nothing is more fundamentally important. You need to relate to each juror and get each juror to relate to you and your client. Make direct eye contact with each one of them. Do it again and again. Talk to them as you would a close friend. Make them feel your side of the case.
- Tell a Story. Put your case into a narrative framework. In any trial, jurors are overloaded with information (which is all the harder to comprehend because it comes to them orally). They can best absorb the wealth of information if it is told to them in a coherent dramatic tale.
- Talk, Don’t Read. If you start reading from a prepared script you will lose the jury’s attention immediately. You should speak extemporaneously. You can use notes, but they should be in the form of bullet points, not complete sentences. In addition to being far more interesting, speaking extemporaneously allows for much more eye contact. (See item one above.)
- Be Dramatic. Your opening and summation should be interesting not only in content, but also in manner of presentation. Modulate your delivery. Ask a question and then let it hang in the air before you suggest the answer. Pause for dramatic effect. If the jury is not listening to you, all the best logic and evidence in the world is useless.
- Use Visuals. You can make some of your points more effectively and add interest to your presentation with visuals. Photographs, summary charts, anatomical models, etc. will help you illustrate your points. (Check with your Judge first – especially for openings to ensure she permits this.)
- Recover From Objections. If opposing counsel objects and the judge sustains the objection, do not stand there like a deer in headlights. Acknowledge the correction (“I understand your honor”) and move on as if nothing untoward has happened.
- Move. Walk slowly back and forth in front of the jury box rather than stand frozen in one place. This gives you a greater chance to connect with the jurors at the far ends and helps keep your remarks from seeming static.
- Empower the jury. Make them feel important. This is particularly crucial for plaintiff’s counsel. Advise the jurors of their tremendous responsibility in the case. Let them know not only that your client’s fate rests in their hands, but that what they decide is important to the community at large.
- Address the question of “how much?” (In closing only.) Unless prohibited by the judge, plaintiff’s counsel should ask for a specific sum, with a detailed breakdown of how the number is reached. Ask for more than you expect to get, but not so much as to be disregarded. Defense counsel should present the case for a drastically lower number (after appropriate caveats that the issue is being addressed only in the unlikely event there is not a defense verdict).
- Maintain Credibility. The jurors will assess whether or not they can trust and rely upon you. In opening, do not promise what might not be delivered. In closing, do not take liberties with the evidence or testimony. The judge’s instruction that, if the jurors disbelieve one thing a witness says, they are entitled to disbelieve everything she says, applies with equal force (in the jurors’ minds) to you.
Things You Should Not Do in Opening and Closing
While attorneys are generally allowed wide latitude during opening remarks and summations, traps for the unwary remain. Sometimes, remarks can be deemed so prejudicial that curative instructions are insufficient, and judgments are reversed.
In Peterson v. County of Nassau, 995 F.Supp. 305, 319-320 (E.D.N.Y. 1998), the court explained: “Trial courts possess broad discretion to determine when the conduct of counsel is so improper as to warrant a new trial. Not every improper or poorly supported remark made in summation irreparably taints the proceedings. In Pappas v. Middle Earth Condominium Ass’n, 963 F.2d 534, 540 (2d Cir. 1992), the Second Circuit identified the standard as follows: Only if counsel’s conduct created undue prejudice or passion, which played upon the sympathy of the jury, should a new trial be granted. See Matthews v. CTI Container Transport Int’l Inc., 871 F.2d 270, 278 (2d Cir.1989); Smith v. National R.R. Passenger Corp., 856 F.2d 467, 470 (2d Cir. 1988).
As stated in Rohring v. City of Niagara Falls, “When the conduct of counsel has “permeated the trial and created a climate of hostility that effectively destroyed the defendant’s ability to obtain a fair trial, reversal is the appropriate remedy.” 192 A.D.2d 228, 230-231, 601 N.Y.S. 2d 740 (4th Dep’t 1993) (citing DiMichel v. South Buffalo Ry. Co., 80 N.Y.2d 184, 290 N.Y.S.2d 1 (1992)). Cohen v. Covelli summarized as follows:
A wide latitude is allowed to counsel in his summation and we have no desire to curb a vigorous, robust summation. A witness may be characterized as untruthful, as a falsifier, as a liar, and even as a perjurer. That is a matter of propriety, of good taste and of judgment, with which a court will not interfere. But there is some line to be drawn.
276 A.D. 375, 376, 94 N.Y.S.2d 782, 783-784 (1st Dep’t 1950).
Take note that courts may consider the cumulative effect of a series of comments, even where each individual statement may not have substantial effect. Bishin v. New York Cent. R. R., 20 A.D.2d 921, 249 N.Y.S.2d 778 (2d Dep’t 1964). Oftentimes, prejudicial remarks in opening or closing can be remedied by curative instructions. See GSGSB, Inc. v. New York Yankees, 1996 WL 456044 (S.D.N.Y.), aff’d by GSGSB, Inc. v. New York Yankees, 122 F.3d 1056 (2d Cir. 1997).
Below is a representative sampling of cases in which the propriety of particular opening and closing commentary has been considered:
- GSGSB, Inc. v. New York Yankees,1996 WL 456044 (S.D.N.Y.), aff’d by GSGSB, Inc. v. New York Yankees, 122 F.3d 1056 (2d Cir. 1997) (affirming judgment for plaintiff in contract and quantum meruit action). No new trial granted to the Yankees whom, as defendants, objected to plaintiff’s attorney’s opening statements. Curative instructions were held to remedy references to testimony with no basis in admissible evidence, to defendant’s attorneys and to allegations of fraud that were not at issue. Allusions to the length of litigation, though admittedly put forth to invoke sympathy, were not deemed prejudicial, particularly because defendants were given an opportunity to address the issue in their rebuttal case.
- Baker v. Connecticut Bank & Trust Co., 125 F.R.D. 25 (D. Conn. 1989) (judgment affirmed in age discrimination case). Plaintiff’s argument that counsel for the defendants made improper argument in summation was insufficient to order a new trial, in that the conduct was not determined to have created undue prejudice or passion which played upon the sympathy of the jury. The court noted the overall hostile atmosphere which pervaded the trial, caused generally by the incompatibility of counsel and cited additionally to Guccione v. Hustler Magazine, Inc., 632 F.Supp. 313, 326 (S.D.N.Y.) (“by the time summations were made, the jury was inured to the hyperbole and the atmosphere of hostility between former antogonists…”), rev’d other grds., 800 F.2d 298 (2d Cir.1986), cert. denied, 479 U.S. 1091, 107 S.Ct. 1303, 94 L.Ed.2d 158 (1987).
- Chicago & N.W. Ry. Co. v. Kelly, 84 F.2d 569 (8th Cir. 1936) (reversing judgment in a railway personal injury case). “[W]hen a lawyer departs from the path of legitimate argument, he does so at his own peril and that of his client, and if his argument is both improper and prejudicial, then he has destroyed any favorable verdict that his client may obtain, unless, in some way, his error has been cured prior to the submission of the case to the jury.” Attorney was also not permitted to ask the jury to place themselves in the position of a plaintiff’s family member.
- Balz v. A and T Bus Co., 252 A.D.2d 458, 459, 675 N.Y.S.2d 604 (1st Dep’t 1998) (affirming judgment for plaintiff in personal injury action). Arguably inappropriate summation did not require a new trial, in that objections were either not proffered or resulted in curative instructions. In addition, the summation “did not create a climate of hostility that so obscured the issues as to have made the trial unfair.”
- O’Connell v. Jacobs, 181 A.D.2d 1064, 583 N.Y.S.2d 61 (4th Dep’t 1992) (reversing judgment for plaintiff in assault and battery action). Opening statement of plaintiff’s attorney made reference to numerous statements that linked the defendant to attacks and which were ultimately unsupported, thereby requiring a reversal of judgment.
- Cohn v. Meyers, 509 N.Y.S.2d 603 (2d Dep’t 1986) (reversing judgment for defendant in assault and battery action). Where defense counsel should have known prior to trial that certain counterclaims for false arrest and malicious prosecution had no evidentiary basis, comments within the defense opening statement created a substantial possibility of injustice. Jury instructions did not eliminate sufficient prejudice.
- Caraballo v. City of New York, 86 A.D.2d 580, 446 N.Y.S.2d 318 (1st Dep’t 1982) (reversal of judgment for plaintiff in personal injury action). Judgment reversed due to “the grossly improper and inflammatory summation” by plaintiffs’ attorney that included personal attack on defendants’ attorney (“He is a tricky lawyer”), unsubstantiated charges of perjury (“They bring in a phony doctor for a price”), racial overtones, assertions of personal knowledge, and personal opinions relating to the case and the credibility of witnesses. Curative instructions or admonitions by the court were not sufficient, could not say inflammatory and improper summation did not influence jury’s verdict.
- Estes v. Big Flats, 41 A.D.2d 681, 340 N.Y.S.2d 950 (3d Dep’t 1973) (reversing judgment for plaintiff in action to recover for personal injuries and property loss sustained in an automobile accident). Where the issue of liability was close, an opening statement which inaccurately applied the law was considered a fundamental error.
- Cherry Creek Nat. Bank v. Fidelity & Casualty Co. of New York, 202 N.Y.S. 611, 614 (4th Dep’t 1924) (reversing judgment for plaintiff in an action upon indemnification of a burglary insurance policy). “The rule allowing counsel when addressing the jury the widest latitude in discussing the evidence and presenting the client’s theories falls far short of authorizing the statement by counsel of matter not in evidence, or indulging in argument founded on no proof, or demanding verdicts for purposes other than the just settlement of the matters at issue between the litigants, or appealing to prejudice or passion.”
- Bishin v. New York Central Railroad Co., 20 A.D.2d 921, 249 N.Y.S.2d 778 (2d Dep’t, 1964) (judgment for plaintiff reversed in an action to recover for personal injury, property damage, and wrongful death). Plaintiff’s attorney’s summation led to a new trial, based on the cumulative effect of numerous and prejudicial remarks that included repeated references to defendants’ failure to call witnesses, intentional failure to disclose information and possible purchased testimony. Such remarks may have substantially influenced or been determinative for the jury in this personal injury/wrongful death case.
- Laughing v. Utica Steam Engine, 16 A.D.2d 294, 228 N.Y.S.2d 44 (4th Dep’t 1962) (reversing judgment for plaintiff in personal injury action). Extensive references to personal information and irrelevant material were held to be outside the bounds of proper summation. Other factors for reversing judgment include a continual recapitulation of injuries involved and assignment of value to each specific injury and referring to his own client as a “poor slob”.
- Cohen v. Covelli, 276 A.D. 375, 94 N.Y.S.2d 782 (1st Dep’t 1950) (reversing judgment in negligence action). Where in summation plaintiff’s attorney charged that the testimony of material witness had been “bought” without any basis in evidence, the statements were found to be objectionable and prejudicial enough to require a new trial. Of particular note, the statements had been objected to but allowed to stand without comment, and the case involved close, highly contested issues.
- Chicago & N.W. Ry. Co. v. Kelly, 74 F. 2d 31, 35 (8th Cir. 1934) (reversing judgment in personal injury action) “Courts should exercise great caution in setting aside judgments because of inadvertent remarks made by litigants or counsel during a hotly contested trial, even though improper, unless it clearly appears that they aroused the sympathy or prejudice of the jury and influenced the verdict.”
- Walz v. Peninsular F. Ins. Co., 221 Mich. 326, 191 N.W. 230, aff’d on reh 223 Mich. 417, 194 N.W. 124 (1922) (judgment for plaintiff affirmed in action upon fire insurance policy) Though counsel for the plaintiff noted in opening remarks that the jury would be hearing testimony that “will disgrace you, disgrace me, and disgrace everyone in the courtroom in which it is produced, because the facts will show that in this case witnesses have been bribed with money and with whisky and with women,” the court noted that there was testimony to support the general idea of those statements and no evidence that the attorney was making those statements out of improper motive. Therefore, the court found no reversible error.