Week 5 - Telling Legal Stories & The Opening Statement
Overview
In litigation, the plaintiff’s lawyer is required to tell a story in which there has been trouble in the world that has affected the plaintiff adversely and is attributable to the acts of the defendant. The defendant must counter with a story in which it is claimed that nothing wrong happened to the plaintiff (or that the plaintiff’s conception of wrong does not fit the law’s definition), or, if there has been a legally cognizable wrong, then it is not the defendant’s fault. Those are the obligatory plots of the law’s adversarial process.
Anthony Amsterdam and Jerome Bruner, Minding the Law. Harvard U.P., 2000, qtd in J. Christopher Rideout, “Storytelling, Narrative Rationality, and Legal Persuasion,“ Legal Writing: Journal of Legal Writing Institute Vol. 14, 2008, pp. 53-86.
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The assignment we are working on is an opening statement. Whereas the memo assignment focused on logos or reasoning, this assignment focuses on pathos--on emotional appeals. The opening statement is one of only three times when the lawyer gets to speak directly to the jury in a jury trial (the other two are voir dire and the closing argument). It is here that the lawyer starts to tell the client's story.
Anytime one describes a set of facts, one is telling a story. One cannot, by definition, tell everything, and one cannot tell everything at the same time. So as a legal writer, whether a judge writing an opinion or an attorney arguing a case, you will always be telling a story, shaping the facts to convey what you want to convey.
The opening statement does the following:
- recounts the events that led to the trial
- (paying particular attention to the "hooks," or attention-getting opening sentences),
- summarizes the key evidence against the defendant(s),
- describes the witnesses who will be called to testify,
- explains the main legal principles of the case, and in general
- tries to create a favorable impression to the judge and jury for one side of the case.
from Behrens p. 97 [bullets added]
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Watch this clip from My Cousin Vinnie (a great legal film) of two opening statements.
Obviously the example is for humor. But even so, you see that Vinnie (Joe Pesci) has used an attention-getting opening (and closing!) sentence. And the stuttering public defender co-counsel has told the story from the defendants' point of view: they were at the Sack o' Suds Convenience Store but they didn't kill anyone.
In the lecture for this week, you will read and see a variety of other opening statements, some with commentary.
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Reading
- “10 Ways to Know if Your Story is Ready to Tell in Court,” in Behrens (pp. 76-80)
- "Models for the Opening Statement and the Closing Argument," in Behrens, pp. 96-101. [Just read the opening statement part.]
- Lecture for Week 4 - Opening Statements [click on title]
Activities
- Participate in a check-in Tuesday discussion in Bb.
- Draft an opening statement for one of the IIED cases in the text. See details in the assignment instructions. Share as a Google Doc with your group by Thursday, February 21, 2019.
- See tab on peer review.
- After conferencing, share as a Google Doc with Dr. Matson by Sunday, February 24, 2019.