Judge Jim Gray - Articles 5

PROFESSIONAL TOOL FOR LITIGATORS: Opening Statements

Daily Journal, 4/7/2011 - by Judge Jim Gray


Many attorneys, judges and legal commentators believe that, second only to issue of the credibility of witnesses, the opening statement is the most important aspect of the trial when it comes to convincing a jury. I share that belief. Skilled and artful attorneys will use an opening statement to tell the jury about what they anticipate the evidence at the trial will be, which means they will tell a story that allows the jurors to see the case through their client's eyes. Another approach is to see the opening statement as a trailer or preview of a movie, with the presentation of evidence being the movie itself, and the closing argument being a critique of the movie after it is finished.

Opening statements are not to be used to "ingratiate" counsel or their clients to the potential jurors, pre-condition the jurors to vote in their favor, instruct the jurors about the law, or in any other way argue their case. Those comments are objectionable, and opposing counsel and trial court judges will be listening.

But mostly everyone at trial knows that to some degree, this is often exactly what is intended - and frequently it cannot be stopped because the lines can be difficult to draw. Nevertheless, do not stray too far from the guidelines, if only because it hurts the continuity of your story to be interrupted by an objection - particularly if it is done by the judge - and it certainly does not make a favorable impression upon jurors to have an objection sustained.

The best approach is to preface your substantive comments with the phrase: "The evidence will show that..." and be true to that statement. And, since the evidence will not show what the actual law is, or that you too are a member of the Rotary Club or Methodist Church (just like one of the jurors), or how the jurors would feel if this tragedy were to be visited personally upon them, etc., your opening statement should similarly not include such comments.

If an opening statement is done well, it can be a beautiful thing to hear and to watch. Frequently, for example, it will take the jurors through a normal day in the life of the plaintiff before the incident in question, and through a normal day after the incident. As long as the evidence will show what those normal days had been, this approach is perfectly appropriate.

Another effective approach is the careful selection of terms by counsel, both in their opening statements and during the trial. For example, in many auto vs. auto cases, if it is plaintiff's theory that damages were caused to plaintiff because defendant was speeding or went through a red traffic light, plaintiff's counsel should not use the term"accident" to describe the incident. Not only that, counsel should object if the opposing side uses that word. Why? The word "accident" assumes a fact not in evidence, because it is not an accident if defendant was breaking the law! Instead, consider using the words: crash, impact, collision, slamming, or smashup, depending on the circumstances. From the defense's perspective, consider touching, fender-bender, bump, or coming together. Words are a trial attorney's tools, and a well chosen word plants the seeds of your theory in the minds of the finders of fact. And it all begins with the opening statement.

What might the theory of your case be? Obviously it will depend upon the individual case. Here's an example: "Everything was under control and going well until defendant 'lowered the boom.' How did this happen? Mr. Smithson's company, my client, was meeting all of its deadlines, and paying all its employees and bills on time, until defendant Jones Corp. failed to pay its outstanding invoice (You cannot say "breached its contract," because that would be argument.) for goods that had been sent to it by Mr. Smithson's company on a timely basis and without any complaints."

After your opening statement, the finders of fact should view your client as good and responsible human beings (who may have made some human mistakes), who have been wronged and damaged. Thus they are reasonably and logically looking to their fellow citizens to rectify those wrongs by awarding them (note the difference between the word "awarding" as opposed to "giving") with a verdict of lots of money.

Technically, counsel cannot anticipate defenses during their opening statement. But if counsel have a good faith belief that the evidence will be as they state it, discussing that evidence in opening statement should be permissible. But there is a trap for the unwary: If counsel says in opening statement that a particular witness will testify, or particular evidence will be presented, and it does not happen, experienced counsel on the other side will be sure to note that absence during closing arguments. That can be noteworthy to a jury, even if it is on a minor point, and you will probably not have a chance to explain the absence. So be careful!

Otherwise, keep your opening statement brief. If attorneys come across as ponderous, unprepared or uninteresting, that will hurt their client's chances at success. Many legal professionals join me in believing that most jurors have strong inclinations about what they feel the eventual verdict should be by the end of opening statements. And clumsy attorneys will probably be seen as representing clumsy clients, which is not a good thing.

So that being the case, should defense attorneys reserve their opening statements until the conclusion of plaintiff's case? Although it certainly depends upon the circumstances, most of the time, the answer is no because you want to plant the seeds of your theory as early in the proceedings as you can. But if there is more than one defendant in the case, and the defendants' interests are parallel, it can be beneficial to present an opening statement before the taking of any evidence, and the other to reserve until plaintiff's case is concluded. That literally gives the defense two bites at the apple. In the situation where one attorney represents two parties, two opening statements will probably not be allowed. This is, however, up to trial judge, and it doesn't hurt to ask.

Finally, good opening statements, like good cross-examinations, do not come about without rigorous thought and preparation. What to discuss, and what not to discuss, are issues that must be considered conscientiously over time. Evidence on small points that cannot be effectively challenged can be quite representative of the big picture, so they should be included. Big issues that could come out in various ways during the presentation of the evidence must not be ignored, but should be treated more generally.

And overall, the old "Reach's Rules" recommendation that speech should always improve upon silence should also be honored. So practice your opening statement on your law partner, secretary, spouse, adult children and friends; tell your client's story that will be "shown by the evidence"; make the story human and interesting; and then do everybody a favor - keep it short. You, the jury and your client will be glad you did.



POT LEGALIZATION EFFORT RETURNS

Subject: The Orange County Register: Editorial: Pot Legalization Effort Returns

Judge Jim Gray - OC Register

Proposition 19, an initiative to legalize the recreational use of marijuana, was soundly defeated in the November election after the state's political establishment, Democratic and Republican, came out strongly against it. We had concerns with a provision related to the ability of employers to combat marijuana use at the workplace, but we are glad to see that advocates are planning to take another stab at the issue for the November 2012 election.

It really is time to look at ways to reduce the drug war and all the costs, injustices and assaults on individual liberty that this war entails. A starting point could be marijuana legalization, given its wide use and nonaddictive nature, although the devil always is in the details.

The Marijuana Regulation and Tax Act of 2012 would "repeal all California state laws that prohibit marijuana possession, sales, transportation, production, processing and cultivation by people 21 years of age and older." It does not repeal laws regarding "driving a motor vehicle under the influence of marijuana; using or being under the influence of marijuana in public or in the workplace; smoking marijuana in the presence of, or providing, transferring or selling marijuana to, a person under the age of 21."

The measure's chief proponent is former Orange County Judge James Gray. At first reading, it seems to answer concerns raised by Prop. 19, although it's early and we advocate an open and honest discussion.

Opponents in the Prop.19 debate mainly argued that marijuana legalization would lead to widespread drug use and spark a crime wave. As advocates for a freer society, we do not believe that government action -- legalization or prohibition of substances -- is the key to determining how people behave.

If government bans produced improved behavior, then alcohol Prohibition would have been a rousing success and all the many efforts by the environmental community to ban things (plastic bags, etc.) would be legislative models for action.

Furthermore, marijuana use essentially is already decriminalized in California, which defangs the idea that legalization will take us into some new and dangerous territory.

Beyond the freedom issue, there are practical reasons for legalizing marijuana, and other drugs for that matter.

We don't condone drug use but, instead, recognize that government bans drive up the cost of these products and thereby create strong incentives for the most brutal crime syndicates to become involved in their production and distribution.

That point was rarely discussed during the Prop. 19 debate.

Another missing point, made eloquently by the late conservative writer William F. Buckley, was that the drug war leads to wanton violations of civil rights and procedures -- civil forfeiture, for example -- typically found in less-free nations.

We recall a National Review editorial from editor Buckley's days : "[I]t is our judgment that the war on drugs has failed, that it is diverting intelligent energy away from how to deal with the problem of addiction, that it is wasting our resources, and that it is encouraging civil, judicial and penal procedures associated with police states.

We all agree on movement toward legalization, even though we may differ on just how far."

We're glad to see the new proposition circulated in the hope that some of the above issues can be seriously debated.



DEAR CONGRESSMAN CAMPBELL(176) or, AN OPEN LETTER TO CONGRESSMAN CAMPBELL:

Wednesday, April 03, 2011

As was discussed in this column on March 20, the immigration system in our country is not hard to repair, but the problem is that neither many Republicans nor Democrats actually want to do so. Why is that? Because many powerful Republicans want the continuing source of cheap labor, and many powerful Democrats want people to continue to come here illegally with the expectation that eventually they will vote for Democrats.

Of course this dysfunctional system has caused such frustration that states like Utah and Arizona have been forced to take measures into their own hands – and who can really blame them? Thus it is the purpose of this letter to motivate you, as the member of Congress in this area, to help to install a workable system. I know this is an emotionally sensitive and complex area, to say the least, and that there are political risks for even discussing it, so I am going to assist you by proposing a program which can serve as a model.

The first thing to do, as set forth more fully in the prior column, is to establish a fool-proof identification card for guest workers – call it an Orange Card – and then prosecute any employer who hires or continues to employ anyone who does not have proper identification showing they are here legally. This, along with disqualifying people who are here illegally from receiving such things as welfare payments, should go a long way effectively to closing our borders. Why? Because most people come to this country to work, and if they cannot find or maintain employment, they will probably go elsewhere.

But secondly and fully as critically, we must at the same time publish guidelines about a fair and equitable course of action that will be followed for people already in our country illegally. With some justification, many people see even a discussion of this issue as a direct attack upon them personally. Why?Because this is not just a "close to home" issue, it actually is home!

Of course drawing up fair and effective guidelines is not easily done, but here is my attempt.

First, the burden should be on the federal government to show why people who can prove they have been in this country illegally but continuously for fifteen or more years should not be offered citizenship. In this regard, their employment history, criminal record, if any, and general citizenship, etc. should all be considered.

Second, the burden should be on the federal government to show why all people who have been in this country illegally but continuously between ten and fifteen years should not be given a green card, or resident alien status, using the same criteria. The same approach would be used for those who have been in this country illegally but continuously between five and ten years, but those people should have the burden to show, based upon the same criteria, why they should receive resident alien status. And finally those people who have been here illegally for less than five years should be deported, but given the opportunity to apply for an orange card or green card.

A further requirement would be that all people who are here illegally must register with the federal government within the next six months, and anyone who does not so register will both be deported and permanently barred from ever becoming a citizen.

A final part of this program would be for Congress to interpret the clause of the 14th Amendment of the U.S. Constitution stating that one must be "subject to the jurisdiction" of our country such that at least one parent of a child must be a citizen before that child can become a citizen simply by virtue of birth. But if a child is born to a parent who is here legally, that child shall automatically become a citizen if that parent becomes a citizen within five years after that birth.

Fundamentally the decision of who comes to our country, and how long they stay, should be made by our country.It should not be made by others who are either violating our laws, or, through some coincidence, happen to give birth to a child while within our borders. Of course, sometimes it is not a coincidence, as witnessed by a recent news story about numbers of pregnant Chinese women who came illegally into our country expressly so that their babies could become citizens. Allowing this situation to continue is simply crazy.

The supposed system that is in effect today is inflicting needless hardship and even danger upon hundreds of thousands of good people, and it should have been fixed decades ago.Of course, as stated above, the new program must both be fairly and equitably conceived and administered, such that people be willing to trust the government and come forward to register and apply for the benefits of citizenship or resident alien status. But at the same time, the law must state that we will never again have a similar program unless passed by Congress with a two-thirds majority vote. That way, everyone will realize that this opportunity will probably never be repeated.

Congressman Campbell this issue is important enough for us to say to you, gently but firmly, that if you don't show strong leadership and help us resolve this longstanding problem, we will find and elect someone else who will.

I am also sending a copy of this letter to my friends Amin David of Los Amigos of Orange County, who is on one side of the political spectrum, and Jim Gilchrest of the Minute Man Project, who is on the other, requesting that they adopt this proposed program, modify it, or come up with a different one of their own, and then send similar letters demanding action from their members of Congress. And finally, I am requesting everyone who reads this column to do the same. It is simply time to bring this despicable situation to a close!

James P. Gray is a retired judge of the Orange County Superior Court, the author of "A Voter's Handbook: Effective Solutions to America's Problems" (The Forum Press, 2010), and can be contacted at JimPGray@sbcglobal.net or at his website at www.JudgeJimGray.com.


 

Return to Top