Clarity for a trial lawyer can come, often, far from the courtroom or a law office. For example, on a beach in Florida, just after sunrise, running with a colleague. And it was in such a place, running along the Gulf of Mexico, that some clarity came to what I originally thought was a controversial and dangerous approach to opening statements.
My colleague on the run was Jared Hatcliffe, a gifted lawyer, adjunct professor in trial advocacy, and perhaps most important for our morning run an accomplished triathlete. After a few moments exchanging personal tales, the talk turned to Jared’s book TRIAL ADVOCACY THE ART OF STORYTELLING, one subtitled “Strategies for Winning a Trial in New York State Court.”
The conversation went like this.
“Jared, I have to tell you that I greatly enjoyed your book, but one passage gave me pause.”
“What you wrote about opening statements, about telling the jury some controversial fact that you are uncertain will be admitted at trial.”
Jared explained that I was not the only person who focused on that passage. And here is what the book says:
Scholars often advise that you should only discuss facts that you know will be admitted into evidence. They warn against over-promising something to the jury. The concept is sound, but overly cautious….If you know evidence will not be admitted, don’t discuss it…
There are those times, however, when a judge has not ruled on an issue or you are still unsure about the admissibility of a piece of evidence. Maybe the judge has reserved a ruling or, for strategic purposes, you did not address it with the court. When I am fairly confident a piece of evidence will be admitted, and I have a good faith basis for believing so, but I am not 100% sure, there is a line I often use when I want to discuss that evidence during my opening.
“With the Judge’s permission…”
“With the judge’s permission” saves your credibility in front of the jury in the event the judge doesn’t admit a piece of evidence. Because hey, it’s not your fault — you wanted to show the jury and tried, but the judge didn’t allow the evidence in.
…”With the judge’s permission”…should only be used if you are fairly sure the evidence will be admitted and it is critical to your case theory.
He also cautioned not to do this more than once in your opening because if your theory is so contingent on so many pieces of evidence you are unsure will be admitted into evidence then you need to rethink your strategy. TRIAL ADVOCACY THE ART OF STORYTELLING, 62-63.
Jared gave this segment perspective. It is predicated on (1) pretty high confidence in a favorable admissibility ruling and (2) opposing counsel’s sloth [this author’s term] in not having moved preemptively, by motion in limine, to exclude the controversial information. At the root of this is a firm philosophy. “I am a big believer in opening strong. I cannot tell you how many cases I have that settle after openings. I lay my cards on the table right away. I know some who do not and try to be more stealthy but that has never been my way.”
The sun reflecting off the water and the pounding of our feet on the sand made me want to shine a light on this, so I turned my thoughts to a lecture I give on evidence strategy – that although the wise lawyer wants all evidentiary issues to be resolved pre-trial in order to have a clear game plan, if the legal reasoning strongly supports admissibility and your opponent is asleep at the wheel, then stay silent on that issue and just offer it at trial.
And Jared’s explanation, grounded in his own practice and strong understanding of evidence law and likely admissibility determinations, made this approach seem more reasonable. Especially if he knows the judge and/or it is custom/practice in that court or jurisdiction to proceed in this fashion. What we did not discuss, and what I would never do, is use “with the Judge’s permission” if the judge has reserved ruling. Even if my opponent is not smart enough to say to the Judge words to the effect of “should counsel ask for a sidebar before mentioning this fact,” a reserved ruling is a ‘wait and see’ determination that I don’t want to cross.
Will I change my approach, or commend “with the Judge’s permission” to others? Probably not. Unless I know the particular judge’s tolerance for such behavior, I fear that doing so and then finding myself in a place where the judge has excluded the evidence because of a belief that it is patently inadmissible may give the jury the vibe that in the eyes of the court this lawyer was playing fast and loose. And the more critical the fact is to my theory, the more I want to know whether it will come in before I build an opening around it.
Whether that is true wisdom or innate conservatism [some might say “cowardice”] is a matter on which reasonable minds can differ. But “with the Judge’s permission” is an envelope-pushing approach to courtroom advocacy, one worth at least a debate or a good run on the beach. And I can’t wait to run with Jared again – he is a gifted trial lawyer and a great athlete and friend and there remains a lot to debate/discuss/learn.