Chapter 11 The Opening Speech

This chapter is written with crime in mind, and I am conscious it may not translate effectively to civil practice. It presupposes your audience is a jury. Some ideas will translate and the reader is invited to pick and choose.

In crime, the opening speech will usually apply to prosecutors.

It is rare to make a defence opening speech, which is more of an art and very risky. Unless you have a lot of experience, don't do it. The primary problem is creating hostages to fortune, where you say to the jury they will hear certain evidence - and then they don’t. By this stage in a trial, the jury really wants to know what the defence will be saying. If the defence witnesses do not say what you say they will say because they go off script, the jury can think it really significant and hugely hold it against your case.

So unless you know how to control witnesses - which you probably don't yet if you are reading this book - and unless you have developed that nose which tells you whether the witnesses really will tell you what they say in their prepared statements - which you probably have not yet as it will take you about seven years of experience to develop that nose - well, just don't do it.

A prosecution opening speech before a jury should review

the facts,

the law,

and the burden and standard of proof.

The precise order is ultimately a matter for you. There are no firm rules.

Many find it makes sense to start with a short, simple opening paragraph, which completely, neatly, and succinctly in a nutshell, tells the court what the case is about. We can call this the FACTS -SUMMARY.

Then it helps to explain the BURDEN AND STANDARD OF PROOF.

For example:

This is a case of burglary, of a home, at night, where jewellery was taken, but luckily, the householder awoke, and with good eyesight got an excellent prolonged view of the burglar in street lighting.

Now explain the DETAILS of the facts as it is anticipated they will unfold - the address, the time, the names of the witnesses, the type of jewellery, introduce the plan of the area, where the street light was, how far was the witness, the story of the chase, the later arrest, the details of the interview, and so on.

Finally, explain THE LAW.

Neat facts-summary,

Burden and standard of proof,

Details of the anticipated facts,

The Law.

Be careful explaining the law.

GET IT RIGHT.

Law can be boring and can be clumsily done. It can confuse rather than illuminate.

Draw the jury’s attention to the indictment, and go through the particulars of the offence. Explain how the anticipated facts fit the law.

Deal with the indictment BRIEFLY and leave the details of the full jury direction to the judge.

Make sure you watch a number of openings, and discover the tempo of the delivery and the extent to which the law is explained. It is not too much. It is not too little. It is just enough to explain what crucial facts the jury needs to seek in the evidence. It is just enough to highlight to which areas the most attention must be paid when the witnesses later address the court.

Usually, most criminal allegations are easily understood, even if the detail of the law is unknown to the jury. Crime tends to centre round clear ideas of dishonesty, violence, and lust - it's the stuff your mum taught you on her knee not to do.

But always write out what you propose to say on the law - just because most crime seems common sense, don't wing it, as you are guaranteed to stumble over words, helplessly recalling as you blunder along that there is a complexity of legal directions in previous authorities, and you will go beet- red as you sprout perspiration while feeling His Honour's eyes swivel disapprovingly onto you.

Indeed, it is recommended you WRITE OUT THE WHOLE OPENING, particularly facts-summary and then the details of the facts.

No kidding.

Always.

Even for simple cases of shoplifting.

I still do.

By writing out everything - the facts-summary, the details, and the law - you will deliver a faultless performance.

In your first act before the court, you will therefore appear commanding.

You will have respect. You have demonstrated your competence early.

You will therefore already appear persuasive.

In addition, the jury will clearly understand you. As everything will have been carefully weighed beforehand, there will be no stumbling over the opening, giving rise to confusion and puzzled frowns. The jury now fully understands, and knows what to look for in the evidence.

And note this: by writing everything out for the opening - as with the early preparation of your closing speech - you will immediately have identified what evidence is missing and what evidence is weak. So from your carefully crafted opening words, you have the opportunity to minimise the importance of the weak, and emphasise the importance of the strong.

But remember this:

WRITING IT OUT DOES NOT MEAN READING IT OUT.

Reading is dull, and if you are dull, you will not be persuasive. Nor will anyone listen to you, so the point of your opening will be lost. You will probably remember much of what you have written anyway. Make sure you look up at the jury and don’t look down all the time at the piece of paper upon which you have written your opening.

Don’t be boring.

The importance of a good opening is another one of those things which cannot be overstated. Just think how hard it is for a jury to absorb what a case is about. Advocates have had time to prepare, and have had papers to study. They have learned about the case through reading and the use of their eyes, which is how we mostly absorb information. But juries learn with their ears. Think about how hard this is.

And please consider how the environment is unfamiliar - wigs, gowns, docks, ushers - and of course, imposing figures on the bench in colourful robes. It is easy for a juror to feel uncomfortable and distracted. Your job is to make every juror feel comfortable. And you can do this with a good opening.

A good opening gives the jury a MAP - there's that word again - sorry, but what a good word! - it tells them what the case will be about, it stops them feeling distracted, and it helps them to look for the significant evidence when a witness speaks.

The map is vital, and they will thank you for it, by giving you their ear whenever you speak.

The question often arises just how far should we go in an opening to persuade the jury we should win.

In other words, should we colourlessly explain the facts as they appear in the witness statements, or should we attempt to create an atmosphere and put some colour before the court.

Unless you are very experienced,

COLOURLESS IS BETTER THAN COLOURFUL.

However, as an aside, closing speeches should be colourful. They are different. They are the moment of persuasion. They contain comment. We've talked a bit about them already and we'll talk more about them later. But an opening should usually be comment-free, simply reciting the facts as it is anticipated they will unfold.

So, keep the following in mind as not a bad rule of thumb:

Colourless opening,

Colourful closing.

However, let's talk about colourful openings for a moment.

A colourful opening is often said to be ‘opening high'.

Opening high is where you attempt to poison the mind of the jury against the defendant straight away.

That is what you do - poison their minds. Strong words. And of course, it can be met with a strong reaction. If done properly, the prosecution are way ahead of the defence. If done badly, the advocate is disliked by the jury.

Particularly if done transparently so that the jury feel they are being manipulated.

If done badly, the advocate loses just about all credibility. And without credibility, you cannot be persuasive. So opening high is a risky business.

Phrases must be carefully chosen for maximum impact, but subtly.

A small amount of indignation, affront, even outrage is gently injected into the advocate's poise, tone, and gestures. This requires considerable skill, and can easily be overdone. It actually takes years to learn how to do it well.

In the US, just about everyone opens high all the time. It is expected there. In England, it is not. Don't be inspired by the splendid tv series LA Law - am I showing my age? - it was in the 1980s, brilliant stuff, I watched it every week - it's great tv, it really is - rent the dvds - but it makes for lousy courtroom practice in London - actually, in most places.

A better series is perhaps Kavanagh QC - there is good understatement there - a wonderful series in the 1990s - again, rent the dvds, or get it on itunes- I have them all.

Better still, look to the Central Criminal Court at the Old Bailey. This is the greatest place in Britain, perhaps in the world, for quality high openings. Some of the ablest prosecutors anywhere on the planet can be found here.

Visit the Bailey. Sit in the public gallery. Watch them at work. Learn from them. It's the best afternoon an aspiring young advocate, criminal or civil, can spend. Really. It's free and it's fantastic.

A key danger in opening high is saying that particular evidence will definitely be given.

Civilian witnesses are generally not reliable. Whatever they may have said in their statements, they do not necessarily say it in evidence. They get confused. They forget things. And sometimes, events have been overstated in the statement, so that in evidence at court, they are milder, and with a judge about, more cautious.

It is dangerous to open high on what civilians are expected to say.

Police officers however can be word perfect, as they are allowed to follow their notebooks, and will therefore usually say exactly what is in their statements.

Doctors are usually the same, as they will have contemporaneous notes to follow.

In fact, word-perfect evidence can usually apply to most professionals and experts, as they will be able to refer to their notebooks, workings, and reports, and provide their evidence precisely as you read it in the papers.

You get the point - if you open high on evidence which does not materialise, you look foolish, lose respect, and it is easier now to lose the case.

So the key is to KNOW FOR SURE WHAT WILL BE SAID.

Reasons for opening high are probably restricted to either serious cases with expert and police evidence of crucial importance where you know exactly what will be said, and occasionally to serious cases, perhaps like fraud, which will probably be a bit dull without the injection of a little drama at the beginning.

In the dull cases scenario you balance the risk the evidence will not reach the height of the opening against the risk that without a little colour the jury will switch off, not follow the case, and acquit.

So, a general approach might be this:

OPEN HIGH

WITH EXPERTS,

DULL CASES,

OR SERIOUS CASES.

If you open high on a non-serious case, like shoplifting, you may come across as a Victorian prude.

In all other cases - which will be mostly your work in your early years, including shoplifting - and unless you are very experienced, OPENING LOW is best.

Just recount the facts as they appear likely to be - no frills, no excitement - and let the witnesses carry the drama.

It is safe, because you have lost no credibility if the witness fails to come up to proof. And you can bend your closing speech - which will usually be of a very different colour to your opening - to the actual evidence given.

A low opening is dispassionate, clear, and a bit colourless.

It is a summary of the facts, as the prosecution anticipates them - with a little law.

IT IS NOT A SUMMARY OF THE ARGUMENTS - that's for closing.

Remember, where there are civilian witnesses, it is better to give the gist of their statements rather than the exact words within them, or they may surprise you and the court by saying differently.

An opening should be delivered SLOWLY WITH PLENTY OF PAUSES.

The jury is just settling into the case. It wants to understand clearly what the case is about. Like I said, remember how distracted a new jury will be, with the wigs and gowns, the court layout, the appearance of the defendant, and allowances must be made for their distraction.

Settle the jury in gently and firmly.

Be sure they understand what you say.

Don't rush in the excitement of starting.

Show command.

Keep it simple.

At the end of the opening, you want the jury to think three things:

We think you are credible, likeable even, sensible - you personally, not just your case,

and

We understand what the case is about, and how the evidence is supposed to fit together,

and most importantly

We understand what evidence to look for from the witnesses.

Now you have the jury thinking with you.

They see you as their guide.

They will follow you.

You are now ahead of the opposition.