Opening statements Advocacy skills training
Introduction
Opening statements introduce the Court to the parties’ competing theories of the case. Opening statements generally are fairly short, and focused on the key facts each party will present. They are told in chronological order, as much like a story as possible. They help the Court understand the nature of the dispute, focus on the key evidence, and place witnesses and exhibits in their proper context. Our laws provide for opening statements in both criminal and civil cases as follows;
Opening Statements in Criminal Cases before Magistrate Courts -
M.C.A. Section 131 (1): Opening and close of case for prosecution and defence - The prosecutor and the accused person shall be entitled to address the court at the commencement of their respective cases.
Opening Statements in Criminal Cases before the High Court – T.I.A
Section 71. Opening of case for the prosecution.
When the assessors have been chosen, the advocate for the prosecution shall open the case against the accused person and shall call witnesses and adduce evidence in support of the indictment.
Section 74 (1) Defence:
The accused person or his or her advocate may then open his or her case, stating the fac
ts or law on which he or she intends to rely, and making such comments as he or she thinks necessary on the evidence for the prosecution; and the accused person may then give evidence on his or her own behalf or make an unsworn statement, and he or she or his or her advocate may examine his or her witnesses, if any, and after their cross examination and re-examination, if any, may sum up his or her case.
ts or law on which he or she intends to rely, and making such comments as he or she thinks necessary on the evidence for the prosecution; and the accused person may then give evidence on his or her own behalf or make an unsworn statement, and he or she or his or her advocate may examine his or her witnesses, if any, and after their cross examination and re-examination, if any, may sum up his or her case.
Opening Statements in Civil Cases – C.P.R Order 18
Rule 2 – On the day fixed for the hearing of the suit, or on any other day to which the hearing is adjourned, the party having the right to begin shall state his or her case and produce his or her evidence in support of the issues which he or she is bound to prove.
Rule 3 – The other party shall then state his or her case and produce his or her evidence and may then address the court generally on the whole case.
Purposes of an opening statement
Courts in Uganda do not treat opening statements as mandatory, mainly due to time constraints and lack of an established practice for doing so. As well as due to the lack of Advocates’ skill in presenting opening statements. However, since the law allows for them in both criminal and civil cases, an advocate needs to prepare to make an opening statement, for the following reasons;
It helps the advocate to formulate and be in position to present a clear picture of the case; - its major events, participants, instrumentalities, disputes and contentions.
It helps the advocate to plan an approach that will arouse the interest of the Court in his or her case and general theory so that the Court remains alert to the evidence. If the Court becomes bored (or worse, if it becomes antagonistic), it may be inattentive while the advocate presents his or her witnesses.
It helps the advocate to plan an approach that will build rapport with the court, addressing the court in a way that communicates the advocate’s sincere belief in his or her cause.
For the defence, the opening statement presents the opportunity to keep the court reminded that there will be or are two sides to the case so that the Court does not make up its mind too soon.
It provides the first opportunity to package and present one’s case as a cohesive whole.
In this context, preparing one’s case as if one will be required to make an opening statement helps the advocate in planning a strategy that will direct the attention of the court to the nuances of the proposed evidence in such a way as to make the usual piecemeal presentation of testimony more understandable as it is received.
The nature and content of an opening statement
Proper opening statements are not arguments. Opening statements are supposed to be limited to informing the court of the facts the advocate intends to prove. It is not an opportunity to tell the Court that you have the evidence on your side, but to show / demonstrate it.
The purpose of an opening statement is to inform the court in a general way of the nature of one’s case so that it will be better prepared to understand the evidence. The advocate is supposed to limit himself or herself to a discussion of the anticipated evidence and what the main issues are. The advocate may not argue about how to resolve conflicts in the evidence, nor discuss how to apply the law to the facts, nor attempt to arouse the emotions of the court. To avoid turning into a witness when giving this evidence, phrases “The evidence will show”, “We shall call Mr. Mukasa who will testify that ……..” or such similar phrases in the future tense may be adopted by an Advocate when introducing facts that will be testified on by witnesses.
The Prohibition Against Argument
The most basic rule of opening statements is that “argument” is prohibited. There are two tests; -
(i) whenever an advocate makes a statement, which is of nature that a witness could take the stand and make the same statement, it is not argument. However, if the rules of evidence would prevent such testimony, or if no such witness exists, the remarks are argumentative.
(ii) If it is something the advocate intends to prove, it is not argument. If however the advocate makes a statement that is not susceptible of proof, it is argument. As long as opening remarks will assist the court in understanding the evidence, they are permissible. However, when they turn distinctly partisan asking the court to resolve disputes, make inferences, or interpret facts favourably to the speaker, the remarks are argumentative. For example, an advocate cannot refer to his or her witnesses as “good and truthful”, discuss how the evidence will satisfy a legal standard, make negative judgements about the adversary or refer to the other party in scurrilous terms.
The Prohibition Against Exaggeration and misstatements
The advocate is expected to make a full and fair statement of the party’s case and the facts the party intends to prove. The most basic rule is that an advocate may not misstate or exaggerate one’s evidence. The advocate cannot promise evidence he or she cannot deliver. An advocate should not use colourful labels that characterise facts in a way distinctly favourable to one’s side. For example, the prosecutor cannot characterise a crime as a “rampage of terror” or “unspeakable evil’.
Limited or no discussion of the law
It may contain a brief statement of the main legal issues on which the case depends, but not a detailed discussion of the law. One should not go further and argue how the law is supposed to be interpreted. In the same vein, pleadings may be referred to only if doing so will explain the procedural posture of the case, clarify the factual contentions, or help identify which issues are contested and which have been admitted
Discussion of the facts
Opening statements are supposed to be limited to summaries of the basic facts one intends to prove. Three rules follow from this:
i. one may not misstate, overstate or exaggerate the evidence. The most common mistake in an opening statement is overstatement: An advocate can make no greater mistake in an opening statement than deliberately or carelessly to overstate his or her case. The deliberate inclusion of matters which cannot be established by admissible evidence. Overstatement takes several common forms: - discussing the opponent’s case, discussing evidence of doubtful admissibility and discussing the testimony of uncertain witnesses, where one doubts about exactly what a witness will say, or even if the witness will show up at all.
ii. one may not refer to inadmissible evidence, and
iii. one may not discuss evidence one expects the opponent to introduce that will not be part of one’s own case. An advocate may not refer in an opening statement to evidence that would be inadmissible at trial. An advocate may refer to any evidence that he or she has reason to believe is admissible and intends to offer. An advocate may not anticipate the opponent’s defences nor talk about the facts the opponent intends to prove and how he or she will rebut them, except if the party represented plans to offer the evidence. This is because in that situation, one lacks a good-faith basis that the statements will be supported by testimony, since one not have control over whether the opponent will call a particular witness or elicit testimony on a particular defence.
Exhibits;
An advocate may be permitted to use exhibits during opening statement. Exhibits that the advocate reasonably believes will be introduced during the trial logically are evidence just like witness testimony, and should be allowed to be disclosed them to the court. Exhibits that will be offered during trial, such as weapons, autopsy photographs, and bloody clothing may be permitted at court’s discretion.
Other objectionable content of an opening statement
Making emotional appeals for sympathy for one’s own client, or antipathy toward the adverse party. Although an advocate can discuss facts that have emotional content, such as the extent of a plaintiff’s injuries, one cannot go outside the relevant evidence. For example, a plaintiff’s advocate in a personal injury case may discuss how the plaintiff has suffered because there is a claim for compensation for pain and suffering. The advocate though may not discuss how hard it has been on the plaintiff’s family Appealing to racial, ethnic or other cultural prejudices. This is usually done by linking one of the parties to a disfavored group, e.g., suggesting that the accused is a member of a street gang. Discussing wealth, poverty, insurance, or anything else connected to a party’s ability to pay damages, e.g., that the defendant was not a large corporation, but a small family - owned business. Personal attacks on the opposing advocate, e.g., that defense counsel would try to confuse the Court. Referring to other similar cases or one’s own experience, e.g., informing the court that the defendant had previously lost a similar negligence case.
Structure of Opening Statements
Introductory remarks
An advocate usually begins an opening statement by introducing himself / herself and the client(s), and conveying the purpose of the opening statement. One will frequently use an analogy to explain what an opening statement is, such as, “an opening statement is like the cover of a jigsaw puzzle box that previews what the finished puzzle will look like.” They also commonly include the disclaimer that what is said in opening statement is not evidence.
Present the Central theme
A good presentation of an opening statement needs a central theme. Themes can be found in the elements of your case or in the characteristics of your client that arouse natural sympathy or coincide with universally admired principles.
Themes should be positive, reflecting the strengths of one’s case. In general, one should stay away from “negative” themes which focus on a weakness in the adversary’s case. Negative themes may seem petty. For example, if one represents an accused in a criminal case where the victim’s identification is shaky and the police did a poor investigation, one may be tempted to focus on the weaknesses of the State’s case with the theme “the blind leading the blind.” However, if the accused has a plausible alibi, one is probably better off with a less clever, but more positive theme, such as “You can’t be in two places at once.”
A summary of the case told as a story
The body of the opening statement is the client’s version of the story of what happened. It is a narrative of the facts from the client’s point of view. One should bear in mind that this is an introduction. It must be simple rather than complicated, and focus on the important facts rather than the peripheral details.
One must bear in mind also that one is recreating an event that happened a number of months or years ago. The focus is on the past event; who did what to whom, what were their reasons, and what was the consequence. The focus is not on the trial to come. It does not matter how one will prove the facts, but focus on the facts themselves.
A straightforward, chronological order is the safest, easiest, and most natural way to tell a story. A chronology is not just a recitation of facts. The advocate’s main task is to paint a vivid mental picture of what happened. The words one uses and images one creates should be chosen not only for their technical accuracy, but also for the effect they will have on the mind of the Court. If the advocate can create effective images that the Court will understand and remember; they will bring the story to life. This is especially important for conveying an accurate picture of emotions, pain, or a complex series of events difficult to describe in simple words.
Remarks that summarise the nature of the case, state the advocate’s theme of the case, and arouse the interest of the Court, e.g.: -
“On 12th July, 2015, John Mugabi walked into Bukasa New Health Clinic through the front door to have a minor operation to remove a growth on his arm. One week later, 19th July, he was carried out of the back door, dead. What happened in that short week to turn a routine operation into a life and death struggle, and why it never should have happened, is what this case is all about.”
Compare the following two examples:
i. Another important witness will be Mukasa Kalema. Mr. Kalema is married, lives here in Nakawa, and works at the National Water and Sewerage Corporation Office in Bugolobi. He will describe what happened at the scene of the accident.
ii. Another important person is Mukasa Kalema. Mr. Kalema was driving the National Water and Sewerage Corporation Pick-up truck that smashed into the back of Kagoro’s car.
The first tells the Court nothing that is important about the case; the second introduces the Court to one of the critical people involved, the man who caused the wreck.
The Court also will be better able to understand the events if they know the goals and motives of the participants, and any obvious factors affecting credibility. The advocate should add any of this additional information only if he or she can do so briefly. For example;
“Another important person is Mukasa Kalema. Mr. Kalema was driving the National Water and Sewerage Corporation Pick-up truck, trying to reach quickly at the Jinja Road Roundabout, where a broken heavy duty water pipe had caused a serious traffic jam, when he smashed into Kagoro’s car.”
The advocate should familiarise the court with the important locations, times, and instrumentalities involved. The same kinds of considerations apply. One’s goal should be not just to mention them, but to make them real to the Court. Locations can be pictured from the perspective of the client or eyewitness; instrumentalities and machines can be made to appear as complicated devices, difficult to control, or as simple extensions of the will of the operator; and times can be related in terms of memorable events such as holidays or mealtimes. For example:
“Let me set the scene for you: It is 7:45 on Monday morning. People are driving to from home to their offices. Mukasa Kalema gets into this Pick-up truck [holding up a photo] and drives to the Jinja Road Roundabout [displaying diagram of the scene]. This is where the accident happened.”
Identification of the disputes
It is helpful to describe the main factual disputes between the parties in an opening statement. It is usually acceptable to mention the points of contention in order to help the Court focus on the real disputes, but not to start arguing about how they should be resolved. For example; -
We are claiming that Kagoro’s injuries were caused by the defendant. We will offer evidence to show that the defendant was did not check his rear mirror before joining the road when he colluded with Kagoro’s boda boda seriously injuring him and sending him to the hospital. In the pleadings filed before trial, the defendant asserted that he was driving safely and is therefore not responsible for Kagoro’s injuries. Thus, you will have to decide one central question — was the defendant driving carelessly? That’s the issue we will be focusing on.
Address the weaknesses
Every case taken to trial will have some inherent weaknesses; gaps in the evidence, witnesses who lack credibility, the absence of corroboration on an important issue, unavailable witnesses, and so forth. Trial practitioners unanimously agree that weaknesses one’s case should be disclosed in the opening statement. By bringing them out oneself in as positive a manner as possible, one takes some of the sting out of them, appears honest, and lessens the negative impact when the opponent points them out.
This does not mean one should tell the Court about every piece of conflicting evidence, every possible line of impeachment, or anticipate disputes the adversary may raise. These are not weaknesses in one’s own case. Rather, one must bring out and explain away key weaknesses that will emerge from one’s own presentation of evidence or that inhere in one’s theory of the case, regardless of what the opponent does.
For example, suppose that your client is accused of being at fault in an accident, and had just left a restaurant where he had consumed a couple of beers. This is a major problem that you must deal with but not overemphasize. One could say;-
“At 9:00 pm, Mukasa Kalema left Kati Kati, and got into his car to head home. The car was in good condition, and Kalema was alert and not tired. He had drunk two beers with his dinner, but was still in full control of his faculties. He would not have driven if he had been feeling any effects from the beer. Kalema won’t even drive with a cell phone on.”
Conclusion and request for a decision
The conclusion should summarise the theme of one’s case and ask the Court for a specific decision, but it cannot be argumentative. This is a difficult line to draw. It usually is permissible to suggest that the evidence adds up to a favourable verdict, as long as this is done simply and not at great length.
Ethics of Telling a Client’s Story;
A Final word on telling a persuasive story is in the words of the Honourable Sir Malcom Hilbery in his book Duty and Art in Advocacy.
In the majority of cases, however, it is not in the seclusion of chambers that a man hopes to pass, or does pass his professional life. Rather, it is in the practice of advocacy in open Court. Here it is that he will find himself daily and hourly called upon to be obedient to the code. Here he must perform his two-fold duty, on the one hand his duty to his Client, and on the other his overriding duty to the court. For the Client, he must present the Client’s story as attractively as it can be put. But it is the Client’s case, not something of his own invention, which he must present. His duty is to make the best of the material with which he is provided. The facts will be put before him in his instruction, and in the proofs of the witnesses. ……..if he may inadvertently by design suggest to the witnesses what their evidence ought to be if the cause is to be won. The result may be that the Court is deceived and an injustice is done.
Tags : Trial Advocacy