Opening and Closing Statements

Op1. Opening Statements

Opening statements are generally fairly short and focus on the key facts that you will present. You deliver an opening statement in chronological order like a story. Opening statements are used to present a clear picture of the case such as the major events in the case, the parties, instrumentalities, disputes and contentions. Proper opening statements are not arguments and are limited to informing the court of the facts that the prosecution or defence will prove. The length of the opening statement will vary according to the complexity of the case and the amount of evidence.

The purpose of an opening statement is to inform the court in a general way of the nature of the case so that the court will be better prepared to understand the evidence. It should be limited to the discussion of the anticipated evidence and the main issues. It is not an opportunity to 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.

Rules for making an opening statement:

1. Do not argue

The most basic rule of opening statements is that argument is prohibited. The rule is easy to state, but it is hard to define argument precisely. With respect to statements of fact, there are two rules of thumb:

• If it is something you intend to prove, it is not argument. If you make a statement that is not susceptible of proof, it is argument.
• If a witness can 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.

2. Do not discuss the law

Most jurisdictions do not permit the law to be discussed in any detail in opening statement. However, most will permit you to state briefly the main legal issues on which the case depends. When a cause of action is based on a statute, you usually will be permitted to read the statute, but you will not be allowed to go further and argue how the law is supposed to be interpreted.

3. Summarize the facts

Opening statements are limited to summaries of the basic facts that you intend to prove. There are three rules on stating facts in opening statements:

• Do not misstate or exaggerate the facts.
• Do not refer to inadmissible evidence.
• Do not discuss evidence that you expect your opponent to introduce and which will not form part of your own case.

4. Stick to the issues

Stick to the issues in the case and avoid emotional appeals for sympathy, racial, ethnic or cultural prejudices and personal attacks on the opposing party.

Contents of an opening statement

1. Introduction

Introduce yourself and the complainant as well as important witnesses. Set the scene by giving some background information of the case. Familiarize the court with important locations, times and instrumentalities involved.

2. Identification of disputes

Describe the main disputes between the parties. Do not attack the opposing party.

3. Telling the story

This is a narrative of the facts from the complainant or key witness’ point of view. Focus on important facts rather than peripheral details. Tell the story in chronological order as it is the easiest and most natural way to tell a story.

4. Conclusion and request for verdict

The conclusion should summarize the theme of the case and ask for a specific verdict.

2. Closing statements

Closing statements or closing arguments come at the end of the trial. Thus, they are the last opportunity to convince the judge to find in favour of the prosecution. A good closing statement should have the following goals:

• Reiterate the theory of the case which should be clear and simple.
• Emphasize favourable evidence.
• Rebut the opponent’s allegations.
• Explain the law and show how the evidence satisfies all legal requirements for a favourable verdict.

Rules for making a closing statement

1. Discuss the facts.
2. Apply the law to the facts.
3. Comment on the strength of your case.

Contents of a closing statement

1. Introduction

• Restate the theme and the case theory.
• Give a brief summary of the case.

2. Identify the issues

• Focus the court’s attention to the important issues.
• Give a simple clear explanation of why these are issues.
• Refine the definition of issues by giving details of each issue.

3. Resolve the issues

• This is the main body of the closing statement. Confine it to giving a resolution of each issue.
• Review the evidence that concerns the contested issues.
• Resolve the dispute in your favour.

4. Give your conclusion

• Give a strong statement of your position.
• Be brief and stick to your case.