From 100 days through Opening Statement: Course 3: Opening Statement

1. From 100 days through Opening Statement:Course 3: Opening Statement Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

2. Tab in Trial Binder • Ideas for themes • Plaintiff case • Defendant case • Key documents • Plaintiff • Defendant • Key witness testimony • Plaintiff • Defendant How to Be Prepared to Prepare Your Opening Statement Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

3. Purpose: To prepare the minds of the jury to follow the evidence and to more readily discern its materiality, force and effect through an overview of the issues involved in a case and the facts each party expects the evidence will prove. P. v. Arnold (1926) 199 Cal. 471, 486. • Matter of Right: California Code of Civil Procedure § 607 (jury trial); 631.7 (bench trial) Legal Principles Governing Opening Statements Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

4. Time limits • “No man’s (or no women’s) land” • Mechanics of technology • Availability of podium, chalkboard, etc • Propriety of statements of law (discretionary) • Propriety of referring to pleadings (discretionary) Court Rules & Procedures Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

5. Possible mini-opening before voir dire • Standard order: Plaintiff goes first • Defendant may follow or reserve • Court has discretion to change order for “special reasons” (CCP § 607) • Example: Sole issue is an affirmative defense Order of Presentation Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

6. Description of facts & supporting evidence • Duty • Breach • Causation • Damages • Theory of case • Brief statements of law (discretionary) • References to pleadings (discretionary) Scope of Opening Statement Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

7. Use of demonstratives (e.g., PowerPoint) • Use “Rules of the Road” • Reference Burden of Proof • Start thematically—tie to evidence • Factual persuasion aka “aggressive advocacy” Opening Statement Techniques Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

8. Trial attorneys permitted considerable latitude: • “Aggressive advocacy is not only proper but desirable. Our jurisprudence is built upon a firm belief in the adversary system…. Juries, characteristically composed of average men and women, may be assumed able to withstand substantial blandishments without surrendering their ability to reason soberly and fairly. Recognizing these factors, reviewing courts are not, and should not be, overly eager to reverse for conduct which is merely moderately captious.” • Love v. Wolf (1964) 226 Cal.App.2d 378, 393. Aggressive Advocacy is Proper… Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

9. But there is a limit: • “The misconduct here was intentional, blatant, and continuous from opening statement, throughout the trial, to closing argument.” Love v. Wolf (1964) 226 Cal.App.2d 378, 393. …Flagrant Misconduct Isn’t Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

10. After Parke-Davis “started to use this stuff all over the country came reports of people dying from it, people suffering from aplastic anemia and dying.” • Chloromycetin should never have been on the market and that “what I have talked about now so far is evidence of absolute flagrant, wanton, negligence of failure to have any regard at all for humanity and the safety of people using this stuff.” • “And all this time they knew that what it [chloromycetin] caused was nothing-it was only death. That is what it was causing, death.” • Unfounded allegations that Parke-Davis had bribed the FDA to get approval Example: Love v. Wolf Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

11. “Misconduct of plaintiff's trial counsel, egregious beyond any in our experience or that related in any reported case brought to our attention has resulted in an unfair trial, a miscarriage of justice and requires us to reverse the judgment.” The price of crossing the line: Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

12. Witness Test: If a witness will be able to testify to the “facts,” then opening is permissible. • Verification Test: Can the assertion be verified? • Link Test: Do “facts” have independent evidentiary value or must counsel provide “rhetorical link in probative chain?” Prof. Lubet’s “Argument” Tests Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

13. Allocating time: Liability (negligence/causation) vs. Damages Ratio • Importance of outlining key areas: • Introduction • The Rules & their application here • Description of harms and losses  •   What I am doing in Opening • The Event • Impact of event to date (e.g.) • What doctors found* • Relevant anatomy* • Course of treatment* • Condition today* • *weave in general damages; • compare & contrast witness testimony • Impact of event on plaintiff in the future • Future Medical Care* • Vocational impact* • *weave in general damages • compare & contrast witness testimony • Discussion of dollar damages-special and general Opening Statement Structure Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

14. Nonsuit: Challenge to plaintiff’s case • M. for Directed Verdict: Challenge to defendant’s case • Standard: “[I]t is clear that counsel has undertaken to state all of the facts which he expects to prove, and it is plainly evident that the facts thus to be proved will not constitute a cause of action or a defense, as the case may be.” Challenges to Legal Sufficiency Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

15. Counsel normally permitted to reopen statement and cure defects: • Reasonable opportunity should be given to set up a cause of action if there is one. • Permission to enlarge opening statement primarily in discretion of trial court • Discretion to be exercised liberally so plaintiff with a cause of action can present it to jury even when counsel initially failed to state in detail necessary facts proposed to proven. Curing Legal Insufficiency Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com

16. Levine, Opening Statement (TRG 2005) • David Ball on Damages (2d ed. 2005) • Keenan & Ball, Reptile (2009) • AAJ Rules of the Road seminar References Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● 415.398.5398 ● mc.team@rftmlaw.com