From the MOCK TRIAL HANDBOOK of the ISBA CENTER FOR LAW AND CIVIC EDUCATION
Opening Statements
Opening statements should inform the fact-finder (the jury or judges) of the nature of
the facts of the case. The attorney presenting the plaintiff/prosecutions opening statement
should first address the Court by asking "May it please the Court?" and acknowledge the
attorneys for the defense, "Opposing Counsel. The attorney should then introduce
him/herself and the client, "I am Perry Mason and I represent Wanda Smith, the plaintiff in
this case." or "I am Perry Mason and I represent the people of the state of California in this case."
The attorney should then briefly outline the facts and circumstances that brought the
case to court. The attorney should tell the court which witnesses he/she will be calling and the
attorney should summarize the key facts to which each witness will testify. He/she should
also identify the importance of any documents that will be introduced during testimony. The
attorney should conclude with the remedy or request for relief they seek. "The prosecution
asks that the defendant, Bugsy Malone, be found guilty of murder in the first degree."
The opening statement should not contain too much detail; excessive detail is likely to
tire or confuse the Court. The opening statement should not exaggerate or overstate the
plaintiff/prosecutions case or refer to specific evidence. Instead, it should state what the
attorney anticipates will be presented at trial; to this end, student attorneys should use terms
such as "The evidence will show" or "Today we will hear.
The opening statement should provide the facts of the case from the clients point of
view; but the opening statement should not be an argument. An argumentative opening
statement risks reprimand from the Court. The opening statement should anticipate what the
defense attorney will say.
It is important not to pace back and forth during the opening statement. Maintaining
eye contact with the jury will help you make a persuasive opening statement. Most
attorneys find it helpful to memorize the opening statement, and to refer to an outline to help
them keep their place. Students are strongly discouraged from reading the complete text of
the statement, as this causes loss of eye contact.
The purpose of the defendants opening statement is to deny that the plaintiff/prosecution has a valid case and to provide a general outline of the facts from the standpoint of the defendant.
The defense attorney who delivers the opening statement should address the Court:
"May it please the Court?" and acknowledge opposing counsel: "Opposing counsel." The
attorney should also introduce her/himself and the defendant.
The defense attorney should then tell the Court the general theory of the clients defense
and discuss the facts that weaken the plaintiff/prosecution case. The attorney should outline
what each witness will testify and then conclude.
The defense attorney should avoid repeating facts which are not in dispute. Like the
plaintiff/prosecution, the defense should not make an opening statement that is
argumentative or exaggerated.
Suggestions regarding eye contact, memorization, and the use of an outline discussed in
the plaintiff/prosecution section also apply to the defense attorney.
Calling Witnesses and Direct Examination of Witnesses
After opening statements the attorney who examines the first witness should stand and
ask the Court "May I proceed?" When the presiding judge indicates you may continue, the
attorney calls his/her first witness: "The plaintiff/prosecution calls Bugsy Malone to the
stand."
Direct examination is when the attorney asks his/her own witness questions on behalf
of the party the attorney represents. The purpose of direct examination is for the attorney to
present the evidence necessary to warrant a decision by the Court which is favorable to the
client. All of the elements of a law or criminal charge must be brought into evidence through
the testimony of witnesses or through documents.
The attorney attempts to ask questions of the witnesses which will result in the clients
side of the case being presented in the most favorable light. Through the witness testimony, the key facts of the case should be presented clearly and explicitly to the Court. The attorneys
should attempt to convince the judge of the soundness of their clients case.
The attorneys for the plaintiff/prosecution first conduct the direct examination of each
of its own witnesses. After the plaintiff/prosecution has examined all of its witnesses, and the
defense has cross-examined the plaintiff/prosecution witnesses, an attorney for the
plaintiff/prosecution should stand and tell the court, "Your honor, the plaintiff/prosecution
rests." The attorney for the defense will conduct direct examination of the defenses witnesses
after the plaintiff/prosecution has rested its case.
During direct examination it is best to ask clear and open-ended questions. Attorneys
should try to phrase their questions to begin with "who, "what, "when, "where," and "how,
or ask witnesses to "describe" or "explain. Asking long or confusing questions, or asking
questions that call for a narrative response are likely to result in objections from the opposing
counsel. Attorneys should be a friendly guide for the witnesses to tell their stories.
Often attorneys are hesitant to bring out facts which are negative to the case they are
trying to present. Keep in mind that opposing counsel will be certain to bring out those facts
while presenting their side of the case. It is helpful for an attorney to bring out the negative
side of the case in order to present the information in the light most favorable to the client.
The Court is likely to feel that counsel is presenting a case that is open and honest if the
attorney brings up the negative aspects of her/his clients case during direct examination.
Cross-Examination of Witnesses
Each direct examination is followed by a cross examination. During cross examination
the attorney for the opposing party asks questions of the witness. Cross examination allows
the opposing attorney an opportunity to secure admissions from the opposing witness that
will tend to prove his/her clients side of the case. The attorney asks questions of the
opponents witnesses in an attempt to discredit those witnesses and negate the opponents
case.
Witnesses may be cross-examined regarding both those things to which they testified
during direct examination and the other information contained within their witness statement
included with the case materials. Their in court statements and their affidavit together
comprise the "scope" of their testimony. During cross-examination, the attorney should ask
questions which will explain, modify or discredit what a witness said during direct exam. The
attorney should examine the witnesss statement prior to trial to decide what evidence is
favorable to his/her case and attempt to address that evidence during cross examination.
During cross-examination, attorneys should ask narrow questions that lead the witness
to the answer. "Yes" or "no" questions are very effective during cross examination. Attorneys
should not ask questions that give the witnesses the opportunity to explain their sides of the
story, as it may be damaging to the clients case. Leading questions (those which suggest the
answer) are appropriate during cross-examination, but not during direct examination.
It is especially important to maintain courtroom etiquette when conducting cross-
examination. Be fair and courteous, and do not harass the witness by speaking harshly or
deliberately asking a question over and over. Keep in mind that it may be helpful to your
clients case when a witness does not provide an answer to a question.
The attorneys for the defense will conduct cross-examination of each of the
plaintiff/prosecution witnesses immediately after each direct examination has been finished.
The attorneys for the plaintiff/prosecution will conduct cross-examination of each of the
defense witnesses after each of the defense attorneys has completed his/her direct
examination.
Re-Direct and Re-Cross-Examination
Re-direct examination can be conducted after cross examination. Attorneys are allowed
to conduct re-direct examination of their own witnesses in order to provide further
explanation of any answer given by the witnesses during cross-examination. It is extremely
important that the attorney who conducts the direct examination of the witness pay close
attention during cross-examination of that witness in order to decide if re-direct examination is
necessary.
Re-direct examination is necessary if the cross-examination hurt the witnesss testimony
by forcing the witness to acknowledge facts which appear more favorable to the opposing
team. It may be necessary if the opposing attorney prevented the witness from fully
explaining the response to a cross-examination question. Re-direct examination should not be
used simply to repeat the original direct examination. Re-direct examination must be in
response to something that occurred during cross-examination: it must be within the scope of
the cross-examination. As with direct examination, the attorney should not ask leading
questions of the witness. Direct and simple open-ended questions are the best.
Re-cross-examination can be used by opposing counsel only after an attorney has
conducted a re-direct examination of his/her own witness. Like re-direct, it provides an
opportunity to further explain the witnesss response to a question asked by the other side. It
must be in response to something that occurred during re-direct examination: it must be
within the scope of the re-direct examination.
Closing Arguments
In closing arguments, the attorney should summarize the highlights of the witness
testimony and the documents as they support his/her clients case and should use those facts
to undermine the opponents case. During the closing argument, the attorney should try to
establish a persuasive link between the facts of the case and the law. Attorneys are not
allowed to discuss evidence that has not been admitted at trial during the closing argument;
therefore, it is important that all of the attorneys on a team cooperate to ensure that all of the
evidence important to the clients case has been brought out during examinations.
The closing argument, like the opening statement, is not evidence. The closing
argument is different from the opening statement, however, because the attorney argues the
clients side of the case. Essentially, this means that the attorney is allowed to explain to the
Judges why his/her client should win. The closing statement should be an organized, well
reasoned presentation which emphasizes the strengths of the clients case and addresses the
flaws of the opponents case.
In preparation for a mock trial, the attorney who will present the closing argument
should plan the argument well in advance; this planned argument should be based upon the
facts she/he expects will be brought out at trial. However, the attorney presenting the closing
argument must be extremely flexible and must listen carefully; she/he should take notes
throughout the entire trial in order to refer only to evidence which has actually been admitted
into trial.
An attorney must present the closing argument in a style which is comfortable to
her/him. Some attorneys prefer a loud, strong style while others prefer a calm, persuasive
presentation. It is important for the attorney to settle on a style that is comfortable and
appropriate to the clients case. The attorney should not read from a written text of the
argument, though an outline may be helpful.
The attorney should begin the closing argument with "May it please the Court?" Each
closing argument should be concluded by confidently requesting that the jury grant the
decision her/his client seeks.
The plaintiff/prosecution will be the first to present the closing arguments, the
defendants attorney will then immediately present his/her closing argument.
Each closing argument should acknowledge the burden of proof.
The burden of proof refers to the quality of evidence that a party must produce to
convince the Court of the truth of the claim they are making at trial. The plaintiff/prosecution
has the burden to produce the evidence to prove to the Court the matter on which they are
asking the Court to rule. In a criminal case, the burden of proof is always beyond a
reasonable doubt. In other words, the prosecution has the burden to provide evidence to
show that the defendant is guilty of the crime of which he/she is accused beyond any doubt
that is reasonable. This does not mean that no doubt can exist in the minds of the Judges in
order for the Judge to issue a guilty verdict; it only means that the doubt must be beyond
reason.
In a civil case, the burden of proof is by a preponderance of the evidence. Proof by a
preponderance of the evidence means that if one were to weigh the quality of all the plaintiffs
evidence against the quality of all the defendants evidence, one side would outweigh the
other. The Judges will decide in favor of the party that provides the greater weight of the
evidence. This burden is not as great as the burden in a criminal case.
The reason for the difference of the burden of proof between civil and criminal cases
results from the difference in what is at risk. In a criminal case, the defendant runs the risk of
losing his/her liberty, which is an inalienable right guaranteed by our Constitution. In order
for the Court to deprive a person of that liberty, the Court must be convinced beyond a
reasonable doubt that the defendant is guilty.