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Persuasive Opening Statements and Closing Arguments 2015

Trial veterans Joseph Cotchett and Nancy Fineman deliver proven techniques for compelling and effective opening statements and closing arguments. Learn from these nationally recognized trial lawyers as they share their expertise in planning, developing, and presenting winning opening statements and closing arguments from both plaintiff and defense perspectives. Includes valuable practice tips and actual trial transcripts of statements and arguments that provide vital guidance for seasoned litigators and newer trial attorneys alike.

“Provides deep insight into how triers of fact perceive your opening and closing statements, and delivers masterful tips on the nuances of your presentation.”
Heather L. Rosing, Klinedinst PC, San Diego

Trial veterans Joseph Cotchett and Nancy Fineman deliver proven techniques for compelling and effective opening statements and closing arguments. Learn from these nationally recognized trial lawyers as they share their expertise in planning, developing, and presenting winning opening statements and closing arguments from both plaintiff and defense perspectives. Includes valuable practice tips and actual trial transcripts of statements and arguments that provide vital guidance for seasoned litigators and newer trial attorneys alike.

  • Understand the functions, scope, and timing issues involved
  • Develop a case theme and strategy
  • Establish credibility with the judge and jury
  • Make your client’s case understandable
  • Learn effective uses of visual aids
  • Understand the rules and boundaries; avoid pitfalls
  • Create winning arguments for and against punitive damages
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“Provides deep insight into how triers of fact perceive your opening and closing statements, and delivers masterful tips on the nuances of your presentation.”
Heather L. Rosing, Klinedinst PC, San Diego

Trial veterans Joseph Cotchett and Nancy Fineman deliver proven techniques for compelling and effective opening statements and closing arguments. Learn from these nationally recognized trial lawyers as they share their expertise in planning, developing, and presenting winning opening statements and closing arguments from both plaintiff and defense perspectives. Includes valuable practice tips and actual trial transcripts of statements and arguments that provide vital guidance for seasoned litigators and newer trial attorneys alike.

  • Understand the functions, scope, and timing issues involved
  • Develop a case theme and strategy
  • Establish credibility with the judge and jury
  • Make your client’s case understandable
  • Learn effective uses of visual aids
  • Understand the rules and boundaries; avoid pitfalls
  • Create winning arguments for and against punitive damages

1

Similarities and Differences Between Opening Statements and Closing Arguments; Importance of Juror Psychology

  • I. SIMILARITIES OF OPENING AND CLOSING
    • A. Persuasive Information 1.1
    • B. Persuasive Reasons 1.2
  • II. DIFFERENCES
    • A. Opening: Need for a Case Narrative 1.3
    • B. Closing: Need for Explicit Argument 1.4
  • III. JUROR PSYCHOLOGY
      • A. Effect of Jury's First Impressions 1.5
      • B. Jury's Need for Reasons 1.6

    2

    Practical and Legal Aspects of Preparing and Presenting Statements and Arguments

      • I. PREPARATION
        • A. Planning: Complaint and Discovery Stages 2.1
        • B. Organization and Language
          • 1. Importance of Primacy Concept 2.2
          • 2. Using Simple, Evocative Language to Explain Case 2.3
          • 3. Avoiding Stilted, Overly Self-Effacing Language 2.4
          • 4. Use of Rhetorical Questions 2.5
          • 5. Outlining Important Points 2.6
        • C. Argument Patterns 2.7
        • D. Nonsuit or Directed Verdict After Opening Statement
          • 1. Nonsuit 2.8
          • 2. Directed Verdict 2.9
          • 3. Adequate Planning to Avoid Nonsuit or Directed Verdict 2.10
        • E. Anticipating and Defusing Problem Areas 2.11
        • F. Discussions of Damages During Opening and Closing 2.12
        • G. Focus Groups and Mock Trials
          • 1. Techniques of Trial Consultants in Jury Selection 2.13
          • 2. Focus Groups 2.14
          • 3. Mock Trials 2.15
      • II. LEGAL REQUIREMENTS
        • A. Order of Presentation 2.16
        • B. Allotted Time 2.17
        • C. Use of Documentary and Demonstrative Material in Opening Statements and Closing Arguments
          • 1. Visual Aids and Other Exhibits 2.18
          • 2. Timelines, Maps, Charts, and Diagrams 2.19
          • 3. Photographs, X-Rays, and Models 2.20
          • 4. Abuse of Demonstrative Material 2.21
          • 5. Disclosure of Demonstrative Material or Evidence Before Opening Statements 2.22
        • D. Use of Jury Instructions in Opening and Closing 2.23
        • E. Use of Depositions During Opening Statement
          • 1. Transcribed Depositions 2.24
          • 2. Video-Recorded Depositions 2.25
        • F. Use of Pleadings in Opening Statement and Closing Argument 2.26
        • G. Use of Electronic Technology in Presenting Statements and Arguments
          • 1. Using Computers to Maintain Interest of Judge and Jury 2.27
          • 2. Scope of Trial Presentation Technology 2.28
          • 3. Hardware 2.29
          • 4. Software
            • a. Tailoring Software to Needs of Case 2.30
            • b. Presentation Software 2.31
            • c. Trial Display Software 2.32
          • 5. Practical Suggestions in Using Electronic Technology 2.33
          • 6. The Courtroom of the Future 2.34
      • III. OUTLINING
        • A. Plaintiff's Opening Statement
          • 1. Basic Considerations 2.35
          • 2. Working Outline 2.36
        • B. Defendant's Opening Statement
          • 1. Basic Considerations 2.37
          • 2. Working Outline 2.38
        • C. Closing Argument 2.39
      • IV. STYLE CONSIDERATIONS
        • A. Importance of Evidence, Law, and Tone 2.40
        • B. Clarity 2.41
        • C. Elevated Language 2.42
        • D. Credibility 2.43
        • E. Emotional Effects Through Aesthetic Appeal 2.44
      • V. MEMORIZATION AND DELIVERY
        • A. Memorization 2.45
        • B. Delivery 2.46
      • VI. SUMMARY OF GOALS AND STRATEGIES
        • A. Opening Statements 2.47
        • B. Closing Arguments 2.48
      • VII. SAMPLE OPENING STATEMENT
        • A. Case Background 2.49
        • B. Plaintiff's Opening Statement 2.50

3

Permissible Content Used in Statements and Arguments and Misconduct Issues

  • I. PERMISSIBLE AND IMPERMISSIBLE MATTERS
    • A. Broad Range of Expression Permitted
      • 1. Matters of Historical Fact, Common Experience, General Knowledge 3.1
      • 2. Analogies, Literary Quotations, Biblical References 3.2
      • 3. Use of Physical Props 3.3
    • B. Common Areas of Possible Misconduct and Error
      • 1. References to the Law or the Evidence
        • a. Opening Statement 3.4
        • b. Closing Argument 3.5
      • 2. Counsel's Opinions on Evidence 3.6
      • 3. Golden Rule Arguments; Personal Address or Appeal to Jurors 3.7
      • 4. Appeals to Passion, Prejudice, or Sympathy of Jury 3.8
      • 5. Comment on Opponent's Failure to Provide Testimony or Evidence
        • a. Criminal Cases 3.9
        • b. Civil Cases 3.10
      • 6. Reference to Matters Not in Evidence 3.11
      • 7. Reference to Prior Settlements 3.12
      • 8. Characterization of Parties, Counsel, or Evidence 3.13
      • 9. Inferences From Evidence 3.14
      • 10. References to Financial Status 3.15
      • 11. Length of Argument 3.16
    • C. Special Responsibility of Government Attorneys 3.17
  • II. OBJECTION, PREJUDICIAL MISCONDUCT, CURE, AND WAIVER
    • A. Objection 3.18
    • B. Prejudicial Misconduct and Cure by Court's Admonitions or Instructions 3.19
    • C. Waiver 3.20

4

Arguing for Punitive Damages

  • I. BASIC GUIDELINES IN SEEKING PUNITIVE DAMAGES
    • A. Burden of Proof, Scienter, and Evidence of Defendant's Financial Condition 4.1
    • B. Using Jury Instructions 4.2
    • C. Arguing Deterrent Effect of Punitive Damages 4.3
  • II. SAMPLE CLOSING ARGUMENTS REGARDING PUNITIVE DAMAGES
    • A. Plaintiff's Arguments: Excerpts
      • 1. Bad Faith Case 4.4
      • 2. Malicious Prosecution Case 4.5
    • B. Defendant's Basic Argument 4.6

5

Opening Statements, Closing Argument; Analysis:

  • I. CASE SUMMARY FOR THIS CHAPTER 5.1
  • II. PLAINTIFF'S OPENING STATEMENT
    • A. Establishing Credibility 5.2
    • B. Purpose of Opening Statement 5.3
    • C. Case Theme 5.4
    • D. Fact Overview 5.5
    • E. Identifying Plaintiff 5.6
    • F. Identifying Defendants 5.7
    • G. Accident Scene
      • 1. Visual Aid: Panoramic View 5.8
      • 2. Visual Aid: Close-up 5.9
    • H. Defendant's Fault 5.10
    • I. Accident Description 5.11
    • J. Negligence Proof 5.12
    • K. Summarizing the Evidence 5.13
    • L. Injury Description 5.14
    • M. Evidence Recapitulated 5.15
  • III. DEFENDANT'S OPENING STATEMENT
    • A. Role of Defense Counsel; Burden of Proof5.16
    • B. Role of Jury 5.17
    • C. Establishing Credibility 5.18
    • D. Putting Lawsuit and Allegations Into Context 5.19
    • E. Liability and Causation 5.20
    • F. Summary 5.21
  • IV. PLAINTIFF'S CLOSING ARGUMENT
    • A. Explaining Burden of Proof 5.22
    • B. Plaintiff's Claims on Injury and Liability 5.23
    • C. Liability and Causation
      • 1. Introductory Remarks 5.24
      • 2. Visual Aids Showing Rules of Law 5.25
      • 3. Evidence of Causation and Fault 5.26
    • D. Extolling Plaintiff's Actions 5.27
    • E. Defusing Defendant's Fact Contentions 5.28
    • F. Damages
      • 1. The "Grizzly Audit" to Show Injury5.29
      • 2. Visual Aid to Show Special Damages5.30
      • 3. Difference Between Special and General Damages 5.31
      • 4. Arguing for Special Damages 5.32
      • 5. Arguing for General Damages 5.33
      • 6. Converting General Damages Into Cash 5.34
    • G. Summary 5.35
    • H. General Insights on Plaintiff's Closing Argument 5.36

6

Plaintiff's Opening Statement (to Court): Fraud Case

  • I. CASE SUMMARY FOR THIS CHAPTER 6.1
  • II. COMPONENTS OF OPENING STATEMENT
    • A. Background Facts 6.2
    • B. Defendants 6.3
    • C. Liability 6.4
    • D. Evidence 6.5
    • E. Summary 6.6

7

Defense Opening Statement and Closing Argument: Commercial Case

  • I. CASE SUMMARY FOR THIS CHAPTER 7.1
  • II. OPENING STATEMENT
    • A. Defense Counsel; Defendant 7.2
    • B. Requesting That Jurors Keep Open Minds Pending Receipt of Defense Case 7.3
    • C. Defusing Plaintiff's Opening Language 7.4
    • D. Characterizing Plaintiff: Negative 7.5
    • E. Characterizing Defendant: Positive 7.6
    • F. Background Facts: Plaintiff and Case Theme 7.7
    • G. Background Facts: Defendant 7.8
    • H. Facts of Nonliability 7.9
    • I. Defense Witnesses' Credibility 7.10
    • J. Attacking Plaintiff's Opening 7.11
    • K. Case Theme Summary 7.12
  • III. CLOSING ARGUMENT
    • A. Appeal to Jury 7.13
    • B. Arguing Case Theme 7.14
    • C. Arguing Against Plaintiff's Evidence 7.15
    • D. Arguing Against Liability 7.16
    • E. Evidence Inconsistencies 7.17
    • F. Key Issue 7.18
    • G. Arguing Facts Showing Nonliability 7.19
    • H. Arguing Against Damages Award 7.20
    • I. Final Reminder of Case Theme 7.21

8

Plaintiff's Opening Statement, Closing Argument, and Rebuttal: Bad Faith Case

  • I. CASE SUMMARY FOR THIS CHAPTER 8.1
  • II. OPENING STATEMENT
    • A. Special Elements of Bad Faith Opening Statements 8.2
    • B. Establishing Credibility; Evidence Preview 8.3
    • C. Parties 8.4
    • D. Issues 8.5
    • E. Narrative 8.6
    • F. Summary 8.7
  • III. CLOSING ARGUMENT
    • A. Duty of Jury; Importance of Case 8.8
    • B. Characterizing Defendants 8.9
    • C. Key Liability Evidence 8.10
    • D. Jurors' Promises Regarding Punitive Damages 8.11
    • E. Arguing Bad Faith Evidence 8.12
    • F. Arguing Liability Law 8.13
    • G. Arguing Punitive Damages Law
      • 1. Consideration of Jury Instructions8.14
      • 2. Extent of Bad Faith 8.15
    • H. Types of Damages Awards
      • 1. Distinguishing Types of Damages 8.16
      • 2. Compensatory Damages 8.17
      • 3. Punitive Damages 8.18
    • I. Summary 8.19
  • IV. REBUTTAL 8.20

9

Defendant's Opening Statement and Closing Argument to Jury: Antitrust Case

  • I. CASE SUMMARY FOR THIS CHAPTER 9.1
  • II. DEFENDANT'S OPENING STATEMENT
    • A. Defendant's Opening Remarks to Jury 9.2
    • B. Statement of Facts and Implied Argument
      • 1. Plaintiff's Failure to Adhere to IFL Rules and Procedures 9.3
      • 2. Case Background
        • a. Characterizing Plaintiff; Litigation on Plaintiff's Attempted Buyout of Public Shares 9.4
        • b. Plaintiff's Current Attempt to Again Make Public Offering; Financial Difficulties of Team 9.5
        • c. Attempts to Raise Money
          • (1) Option to Buy Sold to Morris 9.6
          • (2) Discussions With Sterling Regarding Loan, Public Offering 9.7
        • d. Meeting With Owners Regarding Public Offering; Commissioner's Support 9.8
        • e. Proposed Sale to CMG; Reasonableness of Plaintiff's Compensation 9.9
    • C. Conclusion
      • 1. IFL's Accommodation of Plaintiff 9.10
      • 2. Attacking Plaintiff's Opening 9.11
      • 3. Case Theme Summary 9.12
  • III. DEFENDANT'S CLOSING ARGUMENT
    • A. Introductory Remarks 9.13
    • B. Credibility of Plaintiff's Witnesses
      • 1. Focus on Plaintiff's Testimony 9.14
      • 2. Plaintiff's Character Attacked 9.15
      • 3. Plaintiff's Son's Contradictory Testimony 9.16
    • C. Elements of Defendant's Case
      • 1. Use of Questions 9.17
      • 2. Plaintiff's Equal Involvement in League Policy
        • a. Explaining "Equal Involvement" Defense 9.18
        • b. Plaintiff's Participation in Creating and Supporting Policy 9.19
        • c. Plaintiff's Voluntary Compliance With Policy 9.20
      • 3. Plaintiff's Failure to Show Policy Was Enforced Against Him 9.21
      • 4. Plaintiff's Failure to Show Policy Was Material or Substantial Cause of Injury
        • a. What Plaintiff Must Prove 9.22
        • b. Impossibility of Going Public; Questionable Expertise of Plaintiff's Expert Financial Witnesses 9.23
        • c. Defendant's Efforts to Accommodate Plaintiff 9.24
        • d. Buyout Option Legally Precluded Plaintiff From Going Public 9.25
      • 5. Review: Verdict Form Questions 9.26
      • 6. Relevant Market 9.27
    • D. Inconsistencies in Plaintiff's Case
      • 1. Plaintiff's Expert Witnesses Attacked
        • a. Credibility Undermined on Marketability of Team 9.28
        • b. Credibility Endorsed on Justification of League's Ownership Rules 9.29
      • 2. Plaintiff's Attacks Countered on Issue of Monopoly Power 9.30
      • 3. Plaintiff's Inconsistency in Contesting Ownership Rule 9.31
      • 4. Inconsistency of Plaintiff's Arguments, Witnesses' Testimony 9.32
    • E. Damages; Mitigating Factors 9.33
    • F. Summary
      • 1. Final Review of Verdict Form 9.34
      • 2. Concluding Remarks 9.35

About the Authors

Joseph W. Cotchett is a founding partner (and principal) of Cotchett, Pitre & McCarthy, LLP, in Burlingame and Los Angeles. He earned his undergraduate degree from California State Polytechnic University, San Luis Obispo (Cal Poly) in 1960 (named Outstanding Graduate) and his J.D. from the University of California, Hastings College of the Law, in 1964. He also has received honorary doctoral degrees from Cal Poly, Notre Dame de Namur University, and the University of San Francisco. Mr. Cotchett has been named one of the 100 most influential lawyers in the nation for the past 15 years, and in recent years he was named by Super Lawyers magazine as the number-one lawyer in Northern California, as selected by his peers. He has been an active member of national, state, and local bar associations, including the California, New York, and District of Columbia bars. He is a Fellow of the American College of Trial Lawyers and the International Society of Barristers, and an Advocate in the American Board of Trial Advocates. In 2011, he was inducted into the American Trial Lawyers Hall of Fame. He also is a Fellow and former board member of the International Academy of Trial Lawyers and serves on various advisory boards for professional organizations. Mr. Cotchett is active in pro bono legal work and participates in numerous veterans' organizations, having served to the rank of Colonel in the Army Reserve (Airborne). He is a published author of five other legal texts, as well as numerous law review articles, and has lectured at Hastings and other law schools. Mr. Cotchett has also served on the State Bar's Board of Governors, the California Judicial Council, and the boards of numerous other legal and civic organizations.

Nancy L. Fineman is a partner (and principal) at Cotchett, Pitre & McCarthy, LLP, in Burlingame. She earned her undergraduate degree at the University of California, Berkeley, in 1981 and her J.D. from the University of California, Berkeley, School of Law in 1986. In 2014, she was named one of the top 50 Northern California women lawyers by Super Lawyers magazine (after having been listed as a Super Lawyer each year since 2004). She received the 2014 Trial Lawyer of the Year award from the San Francisco Trial Lawyers Association and Public Justice's 2014 Trial Lawyer of the Year award. Ms. Fineman's practice currently emphasizes complex business litigation, employment litigation, securities cases, antitrust cases, and intellectual property matters, and includes trial and arbitration work in other civil litigation areas. She also has an active appellate practice. Ms. Fineman served on the State Bar's Board of Trustees for a three-year term and was a member of the California Supreme Court's Applicant Evaluation and Nomination Committee. She also is a member of numerous national, state, and local bar and other attorney associations and serves as a Judge Pro Tem for the San Mateo County Superior Court. She also has served as the Chair of the San Mateo County Bar Association Professional Equality Committee and on other boards and commissions, and has lectured and written extensively.

Frank Rothman was the co-author, with Joseph Cotchett, of the original edition of Persuasive Opening Statements & Closing Arguments. See In Memoriam: Frank Rothman.

In Memoriam: Frank Rothman

The late Frank Rothman, who died in 2000, was the co-author, with Joseph Cotchett, of the original 1988 edition of this publication. Mr. Rothman, a widely respected civil litigator, represented a series of motion picture companies, national sports organizations, and individuals throughout his long career as an attorney. During the 1980s, he also served as chairman and chief executive officer of MGM/UA Studios for four years, following which he became an antitrust specialist and practiced with the firm Skadden, Arps, Slate, Meagher & Flom LLP in Los Angeles. He was a Fellow of the American College of Trial Lawyers and was listed several times by the National Law Journal as one of the 100 most influential attorneys in the United States. Mr. Rothman earned his B.A. in 1949 from the University of Southern California and his LL.B. in 1951 from the University of Southern California Gould School of Law.

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Products specifications
PRACTICE AREA Civil Litigation & Torts
PRODUCT GROUP Publication
Products specifications
PRACTICE AREA Civil Litigation & Torts
PRODUCT GROUP Publication