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Hensler, Elspeth --- "Opening and closing statements" [2015] PrecedentAULA 5; (2015) 126 Precedent 14
SOME GENERAL OBSERVATIONS ABOUT OPENING AND CLOSING STATEMENTS
FRAMING EFFECTIVE WRITTEN SUBMISSIONS
- Often the first statements prepared are written submissions. These should be prepared mindful of the ethical obligations of lawyers
as officers of the court:
- Consistent with the advocate’s usual duties, written submissions and other forms of written advocacy must not mislead the court.
The submissions must be a result of a considered review of the facts and the law and an analysis of the cases (including those cases
that are contrary to the advocate’s client’s case5).
- As to content, keep the language, grammar and structure simple. Convoluted submissions that cannot be easily understood can come
across as weak.7 Following plain English guidelines will help you to avoid convoluted sentence structures and unnecessary wordiness
and technical jargon which may obscure your meaning.
- When drafting written statements, consider your audience: what can you reasonably expect the court to know? If the court is a specialist
tribunal, then you can reasonably assume that it will have some expertise in the relevant specialist area of law or industry. If
the court is not a specialist tribunal, your submissions will need to include more detailed explanations about the law, or the relevant
industry context. Whether or not it is a specialist tribunal, the court (most likely) will not be as familiar with the facts as you,
and your submissions should make it easy for the court to identify and understand the relevant facts.
- Considering your audience, and putting yourself in the court’s position, will help you to concentrate on what submissions will
persuade the court to find in your client’s favour. Having identified which submissions are likely to be most persuasive, then
set them out proposition by proposition, with each proposition being a step that leads to the finding you want the court to make.
Often this can be done within a structure as follows:8
-
- Where case law is relied on to support legal propositions, refer only to the leading case (unless other cases are desirable by way
of illustration or there is a conflict in the case law that needs to be explained). The passage of any authority relied on should
be identified, by page or paragraph number. A list of authorities should be attached to the written submissions with each authority
that the advocate may read from marked with an asterisk.
ORAL ADVOCACY
OPENING STATEMENTS
CLOSING STATEMENTS
- To help prepare for closing, during the trial, at the end of each day (or during any break if there is time), identify:
- This will require a consideration of:
-
- A similar structure to that described for opening statements can be adapted for closing statements except that, for each cause of
action or positive defence, the emphasis turns to:
-
- The closing statement is the opportunity to distil the case and draw everything back to the case theory outlined in the opening.
When preparing closing statements, it is useful to check whether the closing statement:
-
- Although it is important that the closing statement works at both a general and a detailed level, it should not address every piece
of evidence. It should identify those matters of fact or law that have significance: that is, those that might affect the outcome
of the case. So, the closing statement should:
- (a) introduce each disputed issue, giving the background, stating why the issue is important;13
- (b) state the best points first and last – those that prove your client’s case as well as those that refute other case
theories;
- (c) stick to the evidence – if a witness didn’t say quite what they were expected to say, the closing statement must deal
with the evidence as given: it will not be persuasive to make a closing statement based on what your client may have wished the evidence
to be;
- (d) explain what the evidence means – to use a simple example: if the relevant events occurred in Melbourne but the evidence
is that an alleged participant in the events was in Perth, then state that, given the evidence, the event cannot have occurred, or
the alleged participant could not have been a participant, according to your case theory. Don’t leave the court to infer what
the significance of the evidence is unguided;
- (e) face any weaknesses in the case squarely and minimise the impact of any deficiencies by, for example, explaining14 that:
- (f) say what the consequence is, in law, of the evidence; or to put it another way, state the relevant law and how it applied to the
facts;
- (g) tie every paragraph to what you want to achieve – state your conclusions.
-
- This is the last chance to persuade the court and to deal with the disputed issues. If changes need to be made to pleadings or written
chronologies before the court, this is the time to set out those changes. But the emphasis should be on setting out a strong summary
of the argument and making clear the findings of fact and law that you say the court should make, and the action that you say the
court should take.
-
OPENING AND CLOSING STATEMENTS
By Elspeth Hensler
The best opening and closing statements will not cure
the faults inherent in the relevant evidence, or other steps (including
pleadings
and correspondence) that precede that evidence. Every communication,
whether oral, by letter or by pleading should be approached
as an opportunity to
advocate. Opening and closing statements are just two of the final steps in that
process of advocacy. This
article focuses on making persuasive oral and written
statements to a court about evidence and legal
arguments.
SOME GENERAL OBSERVATIONS
ABOUT OPENING AND CLOSING STATEMENTS
Whether preparing to make an opening or closing
statement, the advocate’s aim should be to make a clear and simple
presentation
to the court and to tell a story that is as easy as possible for
the court to follow. These statements should be made by the advocate
as
submissions or by contending for propositions: the advocate’s own thoughts
or beliefs are largely irrelevant[1]
to this exercise.[2] This is so
whether the advocate is making submissions about the evidence or the law.
In preparing to open or close, the advocate
should:
(a) prepare alternative statements (often in spite of
their client’s lack of instructions to do so):
(i) at least once on the assumption that the
presentation of their client’s case goes to plan and is not effectively
attacked;
(ii) at least once on the basis that
witnesses forget their evidence or change their evidence (identifying which
evidence is crucial
and how it might be adduced if a witness
‘freezes’ or becomes otherwise unhelpful), and all weaknesses in
their client’s
case are exposed (identifying what those weaknesses might
be and how they might be answered); and
(iii) at
least once, drawing on the preparations above, for the most likely way that the
matter will proceed;
(b) know and understand their case
theory[3] so that they may communicate
it clearly (and bravely where necessary – being willing to hold their
ground);
(c) consider and be aware of their audience
(whether that audience is a jury or a magistrate or judge), putting themselves
in the
audience’s shoes and anticipating what that audience may want or
need to hear about;
(d) be aware of and use their own
style; and
(e) be ethical and respectful –
observing their duties to the court and to others involved in the Court
process.
The importance of being
respectful and courteous is mentioned a number of times in this article. It is
not uncommon for advocates
to make disrespectful remarks about other parties and
witnesses and lawyers for other parties. Sometimes these remarks are made at
the
request of an advocate’s client, or to reassure the advocate’s
client that the advocate is not friendly or ‘soft’
with other
party’s
lawyers.
The lawyers
for other parties are opponents, not enemies. An advocate in their statements to
the court may legitimately attack the
argument advanced by other parties. It is
unhelpful and improper to make a personal attack on another party’s
lawyers. Always
proceed with
courtesy.[4]
FRAMING EFFECTIVE WRITTEN SUBMISSIONS
Often the first statements prepared are written
submissions. These should be prepared mindful of the ethical obligations of
lawyers
as officers of the court:
(a) to ensure that they are not a mere mouthpiece for
their clients;
(b) to confine a dispute to the issues
of importance that will determine the outcome in a case;
(c) to advance a case for which there is a proper
foundation;
(d) to refrain from advancing a case for
a collateral purpose; and
(e) to provide disclosure
of relevant material.
Consistent with the advocate’s usual duties,
written submissions and other forms of written advocacy must not mislead the
court.
The submissions must be a result of a considered review of the facts and
the law and an analysis of the cases (including those cases
that are contrary to
the advocate’s client’s
case[5]).
At risk of stating the obvious, written advocacy aims to persuade. It will do
this most effectively when it is clear and informative.
Clarity and persuasiveness are determined by a document’s presentation,
as well as a document’s content. The Rules and
Practice Directions of each
court set out how documents should be
presented[6] and care should be taken
to make sure that documents filed at court comply with the relevant Rules and
Practice Directions.
As to content, keep the language, grammar and structure
simple. Convoluted submissions that cannot be easily understood can come
across
as weak.[7] Following plain English
guidelines will help you to avoid convoluted sentence structures and unnecessary
wordiness and technical
jargon which may obscure your meaning.
When drafting written statements, consider your
audience: what can you reasonably expect the court to know? If the court is a
specialist
tribunal, then you can reasonably assume that it will have some
expertise in the relevant specialist area of law or industry. If
the court is
not a specialist tribunal, your submissions will need to include more detailed
explanations about the law, or the relevant
industry context. Whether or not it
is a specialist tribunal, the court (most likely) will not be as familiar with
the facts as you,
and your submissions should make it easy for the court to
identify and understand the relevant facts.
Considering your audience, and putting yourself in the
court’s position, will help you to concentrate on what submissions will
persuade the court to find in your client’s favour. Having identified
which submissions are likely to be most persuasive, then
set them out
proposition by proposition, with each proposition being a step that leads to the
finding you want the court to make.
Often this can be done within a structure as
follows:[8]
(a) Start with a short summary of what the argument is
about;
(b) State the
issues;
(c) State the legal and factual propositions,
including those that meet arguments that might be made against
you;[9]
and
(d) Conclude and identify the orders sought.
Where case law is relied
on to support legal propositions, refer only to the leading case (unless other
cases are desirable by way
of illustration or there is a conflict in the case
law that needs to be explained). The passage of any authority relied on should
be identified, by page or paragraph number. A list of authorities should be
attached to the written submissions with each authority
that the advocate may
read from marked with an asterisk.
ORAL ADVOCACY
The principles governing the preparation of written
submissions should also apply to preparing to make opening and closing
statements.
In addition, the advocate should:
(a) be prepared to be nervous and have strategies in
place to manage those nerves;
(b) be prepared to
answer questions and have a conversation with the
court;
(c) actively listen to what is occurring in
court, including any questions raised or observations made;
and
(d) make eye contact and speak up.
The oral opening and
closing statements are an opportunity to concentrate on your best points: the
points most likely to persuade
the court in your client’s favour. It is
also the opportunity to make sure that any complex points have been communicated
to
the court, although you may prefer not to orally address these propositions:
where propositions are complex, it is sometimes best
to leave them for written
submissions where you have time to carefully consider how that proposition can
best be put.
As to having a conversation with the court, it is likely that the court will
seek to engage with you and ask questions during opening
and closing statements.
If a judge starts speaking, the advocate should stop speaking immediately and
listen to what the judge has
to say. Answer any questions directly and
succinctly. If you intend to discuss the issue in more detail later in your oral
statement,
say so.
The advocate may agree or disagree with what the judge has said, but
disagreeing with a judge must be done respectfully, focusing
on the proposition
that the advocate disagrees with, rather than the judge being
wrong.[10] For example, if the judge
has put a proposition about the evidence which the advocate thinks is wrong,
then the advocate should give
the judge a correct description of the evidence,
or refer the judge to the transcript where the evidence appears.
If a new point emerges in the course of argument, written submissions may be
departed from (although there may be cost and delay
consequences in doing so).
Even if no new point emerges in the course of argument, be prepared to depart
from your planned oral statement
so that you can engage the court.
Be very hesitant to interrupt another advocate’s
statement to the court. Sometimes it has to be done but, if you have a right
of
reply, or you can seek leave to reply, that is likely to be the better time to
respond to another advocate’s
statements.[11]
OPENING STATEMENTS
A useful structure[12] for
written or oral opening statement is to:
(a) start with a short statement of two or three
sentences setting out the nature of the
case;
(b) outline who the parties are, the main
events and the participants in those events – this may take the form of,
or be augmented
by, a chronology;
(c) explain the
pleadings;
(d) list the
issues;
(e) briefly outline the main legal
propositions, and identify the main authorities and
statutes;
(f) give a short analysis of the
case;
(g) identify the witnesses to be called and
briefly outline the evidence that they will give;
and
(h) attend to any practical matters such as how
documents are to be tendered, or whether any witness has to be interposed or
give
evidence by video link.
Obviously, elements of
this structure can be dropped or rearranged as appropriate, but it is a useful
starting point. In particular,
written statements filed on behalf of a defendant
or respondent should not need to address all of these elements.
While the list of elements above is long, each element
requires only a short statement or a brief outline. The focus of the opening
statement should be on the key factual or legal disputes on which the case will
turn and the authorities central to the case.
CLOSING STATEMENTS
To help prepare for closing, during the trial, at the
end of each day (or during any break if there is time), identify:
(a) the evidence for and against your client’s
case;
(b) how to minimise the impact of what is
against your client’s case;
(c) how to
maximise the impact of what is helpful to your client’s case.
This will require a consideration of:
(a) the oral evidence adduced for your
client;
(b) the oral evidence adduced by other
parties;
(c) exhibits (documentary and otherwise)
– to the extent that they really are
relevant;
(d) questions and comments from the court
– these can be a very useful indication of what is on the court’s
mind or what
is troubling the court. These indications from the court enable the
advocate to target their closing statement
accordingly;
(e) statements by other advocates
(particularly any concessions or any statements that suggest that another party
has had to change
its position – these should be noted so that closing
statements can inform the court what is no longer in issue and what is
unclear,
incoherent, or perhaps recently invented on the part of other
parties);
(f) pleadings and particulars – in
case it is necessary to confine other parties to their
case;
(g) answers to interrogatories;
and
(h) common sense (but only if it is supported by
the evidence).
A similar structure to
that described for opening statements can be adapted for closing statements
except that, for each cause of
action or positive defence, the emphasis turns
to:
(a) what findings of fact should be made, with
reference to transcript and exhibits;
(b) any issues
of credibility that need to be resolved;
(c) the
relevant principles of law (with supporting authorities) and how they apply to
the established facts; and
(d) the orders sought.
The closing statement is
the opportunity to distil the case and draw everything back to the case theory
outlined in the opening.
When preparing closing statements, it is useful to
check whether the closing statement:
(a) accounts for or explains all of the undeniable
facts – even at a detailed level;
(b) explains
away, in a plausible manner, as many facts and laws as possible that may be
detrimental to the client’s case;
(c) explains why people acted as they
did;
(d) sets out the relevant legal propositions,
with the proper authority for those propositions, and provides a useful analysis
of
the applicable laws; and
(e) is consistent with
common sense and plausible.
Although it is important
that the closing statement works at both a general and a detailed level, it
should not address every piece
of evidence. It should identify those matters of
fact or law that have significance: that is, those that might affect the outcome
of the case. So, the closing statement should:
(a) introduce each disputed issue, giving the
background, stating why the issue is
important;[13]
(b) state
the best points first and last – those that prove your client’s case
as well as those that refute other case
theories;
(c) stick to the evidence – if a
witness didn’t say quite what they were expected to say, the closing
statement must deal
with the evidence as given: it will not be persuasive to
make a closing statement based on what your client may have wished the evidence
to be;
(d) explain what the evidence means –
to use a simple example: if the relevant events occurred in Melbourne but the
evidence
is that an alleged participant in the events was in Perth, then state
that, given the evidence, the event cannot have occurred, or
the alleged
participant could not have been a participant, according to your case theory.
Don’t leave the court to infer what
the significance of the evidence is
unguided;
(e) face any weaknesses in the case
squarely and minimise the impact of any deficiencies by, for example,
explaining[14] that:
(i) the evidence said to be against your client’s
case is irrelevant; or
(ii) the evidence against
your client’s case is not credible;
or
(iii) the evidence relied on to support a case
theory contrary to yours is also consistent with your case theory;
or
(iv) an issue raised against your client’s
case hasn’t been established to the required burden of proof;
or
(v) the cases that contradict or oppose your case
theory don’t apply or should be distinguished.
(f) say what the consequence is, in law, of the
evidence; or to put it another way, state the relevant law and how it applied to
the
facts;
(g) tie every paragraph to what you want
to achieve – state your conclusions.
This is the last chance
to persuade the court and to deal with the disputed issues. If changes need to
be made to pleadings or written
chronologies before the court, this is the time
to set out those changes. But the emphasis should be on setting out a strong
summary
of the argument and making clear the findings of fact and law that you
say the court should make, and the action that you say the
court should
take.
Elspeth Hensler is a barrister practising in commercial litigation. She is
Vice President of Australian Women Lawyers and a member
of the WA Bar Council.
In 2014, she was awarded the Attorney-General’s Community Service Law
Award and was jointly awarded
the WA Bar Association Distinguished Service
Award. She is at Francis Burt Chambers, Perth. PHONE (08) 9220 0487 EMAIL
ehensler@francisburt.com.au.
[1] The advocate’s own
thoughts or beliefs may usefully test the credibility of a proposition that the
advocate proposes to advance,
but the relevance of their own thoughts or beliefs
should be exhausted by the time they make their opening or closing statements
to
the court.
[2] The Hon Justice McKechnie,
‘Forensic advocacy: a survival guide to basics in court
etiquette’, in Brief, vol. 29, no. 2 (March 2002),
pp14-16.
[3] ‘Case theory’ is
used in this paper to describe the organising principles used by an advocate to
give structure to the
jumble of facts and laws presented to the advocate –
it is the simple theory developed in each case to simply explain what
happened
and why. It should:
(a) account for or explain all of the undeniable facts – even at a
detailed level;
(b) explain and neutralise, in a plausible manner, unfavourable facts and
laws;
(c) explain why people acted as they did;
(d) be supported by the details;
(e) have a solid basis in law; and
(f) be consistent with common sense and plausible.
[4] The Hon Justice McKechnie,
above note 2, pp14-16.
[5] SP Estcourt, ‘Ethical
Advocacy’, 19 February 2013: available at http://derwentandtamarchambers.com/wp-content/uploads/2013/02/ETHICAL-ADVOCACY.pdf.
[6] See, for example, Federal Court
Practice Notes CM 2 (List of Authorities, Citation of Cases and Legislation for
Proceedings Generally)
issued in 2012, GEN 2 (Documents) issued in 2014, and GEN
3 (Use of Court Forms) issued in 2014. The Federal Court’s Practice
Notes
are available from its website:
http://www.fedcourt.gov.au/law-and-practice/practice-documents/practice-notes
[7] M Corboy SC, ‘The Use and
Abuse of Submissions – a Defendant/Respondent’s Perspective’,
paper presented to
the Law Society of WA, 19 October 2005, para
[15(a)].
[8] This general structure has been
taken from [3.9] – [3.19] of J Curthoys & C Kendall, Advocacy: an
introduction (LexisNexis Butterworths, Australia, 2006).
[9] In appellate work, this is
sometime referred to as the LOPP/FLOPP analysis – the Losing Party’s
Position and the Flaw
in the Losing Party’s Position: see pp44-6 of
Professor James C Raymond, ‘The Architecture of Argument’, The
Judicial Review: Journal of the Judicial Commission of New South Wales,
vol. 7 (September 2004), pp39-56.
[10] The Hon Justice McKechnie,
above note 2, pp14-16.
[11] Ibid.
[12] This structure is taken from
CL Zelestis QC, ‘Trial Advocacy’, a presentation dated 11 October
2002. The paper concerned
oral advocacy, but the structure works well for
written opening statements too.
[13] Depending on each
advocate’s personal style, the advocate may state their conclusion on the
issue by way of introducing it.
[14] The explanations are very
important – you need to give the court a reason to choose to accept your
case theory. To do this,
you need to give the court a reason to choose to accept
the elements of your case theory over those put against your client.
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