The do’s and don’ts of opening
and closing remarks
A dynamic opening statement and closing argument can impress the judge and engage the jury, say Steven Peskind and Anita Ventrelli, both of whom have been faculty at the American Bar Association Family Law Trial Advocacy Institute. Peskind, principal of the Peskind Law Firm in St. Charles, Ill., and Ventrelli, partner at Schiller DuCanto & Fleck in Chicago, gave advice on crafting opening and closing statements, including do’s and don’ts, as part of their ABA CLE “How to Impress Judges: Analytical Steps to a Well-Organized, Concise and Engaging Trial.”
Following are some of their top tips.
Remember why we do opening statements. “First of all, we’re using them to set the tone for the trial,” Ventrelli says. “Second, we’re using them to tell the court what facts the court needs to look and listen for in the proofs to get to the right conclusions on the legal issues. Lastly, they’re a practical tool that helps us assess facts that we do and don’t have to support our theories of the case, identify our bad facts — and when you’ve done all that, you’re in a unique position to set realistic client expectations about how strong your case is on each of the issues.”
Do unto the other side as you would have them do unto you.
Begin with a concise statement of your case theme. Ventrelli recalls a story of one lawyer even singing a theme: Aretha Franklin’s R-e-s-p-e-c-t. “And boy did she catch the judge’s attention,” she says. “You also want to end on a high point that repeats the theme of your case.”
Be dynamic and interesting in your style. “You can go to court and watch good lawyers put on cases, and you’ll quickly see that no two really use the same style,” Ventrelli says. “Different things work for different people.”
Ventrelli encourages lawyers to try out many different styles and personalities and seek feedback “because that’s the only way you’re going to know whether things that you’re doing are connecting.”
Make eye contact. It emphasizes your sincerity. “Do not read a script because if your face is pointed down toward the podium, you’re going to have lost much of that punch of your argument,” Peskind says. “It’s not going to be interesting to the judge if you’re not connecting with the judge.”
Organize the closing just as you organize the opening around case theory and theme. “You’ll summarize the facts and tie them into the legal theories in a forceful and assertive way using your persuasive words,” Ventrelli says. “To do an effective closing, you have to do what we call blocking out the hard issues in the case.”
Using this blocking approach involves identifying the most heavily contested issues in the case and finding a way of setting off each of those issues with a conclusory statement or a rhetorical question, Ventrelli adds. “You’re going to tell the court … in a straightforward way why your evidence is persuasive on the point. You’re going to identify what the other side did to oppose your evidence and then you’re going to tell the court why the evidence they introduced is not as persuasive as the evidence you introduced.”
Unto the other side as you would have them do unto you, Ventrelli says.
Skip the opening statement. If you have a reluctant judge, try to talk to the judge at a pretrial conference about his or her willingness to hear your opening, Peskind says. “Make it short. Make it concise. Make it focused,” he says. “If you can get one done that’s short and helpful, you’re in forever with that particular judge. They key is doing it right. If you get up there and you just ramble … you’re going to have much more pushback from judges than when you do it short and crisp and focused.”
Run away from your warts. “You need to show them. You need to put a little makeup on them,” Peskind says. “But you can’t deny them; you can’t hide them.”
“Sometimes you have no choice but to say, ‘Your honor, you’re going to hear evidence that on a couple of occasions, Mrs. called the police when Mr. asked her if he could come into the foyer of the house, and you’re going to hear that Mr. believed that it was inappropriate conduct on her part,’” Ventrelli says. “‘Whether it is or it isn’t, the litigants in this case are only human, and human beings make mistakes.’ It’s a way of taking the sting out of something, particularly when you’re the petitioner, because you get to go first.”
Think that every statement needs to be prefaced by “the evidence will show.” That’s not a good presentation, Peskind says. “You want to tell your opening in the format of a story,” he says. “And as long as it’s a fair recitation of what the evidence will show, you don’t need to qualify it as the evidence will show. That’s terrible. That’s boring.”
Disrespect the judge. “Even if the judge is kind of conflictual and aggressive, take a breath and listen to the [judge’s] question,” Peskind says. If you don’t agree with the judge’s underlying assumption, “you say, ‘with all respect, your honor, I don’t agree with the court’s position, and let me tell you why.’ The judge will deal with it the way they want, but the key is respect.”
State your personal beliefs about the witnesses or the case during the closing argument. “Whether you think the witness is credible or not isn’t the issue,” Ventrelli says. “Whether the judge thinks they’re credible or not is the issue. If your personal belief is that their business valuation expert is trying to put one over on the judge, the way to highlight it in the closing is to say, ‘your honor, their expert used these three to four methods. You heard the testimony of our expert on why those methods weren’t the most rock-solid choices. These were the reasons.’ You undermine them without coming out and stating the conclusion.”
Allude to matters where there has been no evidence. If the opposition does this, object, Peskind says.
Appeal to the trier of facts’ personal prejudices, even if you know what they are, Ventrelli says.
Make personal attacks on opposing counsel that aren’t supported by the record. “Even if the record supports it, be careful with that because you don’t want to turn this into a personality fight between the lawyers,” Peskind says. “You want to stay focused on the evidence and the merits of your case.”
This CLE was sponsored by the Section of Family Law , the Solo, Small Firm and General Practice Division and the Section of Litigation.
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