California Drunk Driving Law \u00a7 9:08.<\/p>\n
I found this to be astonishing.\u00a0 When if ever was this the \u201ctraditional\u201d reasoning for trial advocates?\u00a0 \u00a0\u00a0Is it only a \u201crespectable population\u201d of lawyers who now believe otherwise?\u00a0 And is there ever a case that is not<\/em> conducive\u00a0 to an opening statement?<\/p>\n Apparently this was \u2018wisdom\u2019 in 1935.\u00a0 In his text TRIAL TECHNIQUE\u00a0 (Callaghan and Company, 1935), author Irving Goldstein, at the time an \u201cinstructor in trial technique at Northwestern University School of Law, wrote:<\/p>\n \u00a0 When representing a defendant in the case it frequently becomes necessary to decide whether it will be better to make an opening statement or to waive it entirely.\u00a0 <\/em>Sometimes in criminal cases it is advisable to waive the opening statement on the part of the defendant where there is every indication that the defendant may be guilty.\u00a0 This is also true in personal injury cases where there is no question but that client is liable and also where the only hope is to keep the verdict as small as possible.<\/p>\n Waiving the opening statement may be indicated in those instances where the attorney relies upon a secret defense<\/em>, that is, where he has information, witnesses, and evidence unknown to the plaintiff which will completely refute and destroy plaintiff\u2019s case.<\/p>\n TRIAL TECHNIQUE,\u00a0 \u00a7263 (emphasis in original).<\/p>\n Goldstein offers no explanation of why<\/em> this is a preferred approach, of what it might accomplish, or the harm it might beget.\u00a0 And later in the same chapter he rejects one of his premises, writing that in the \u201csecret defense\u201d case some<\/em> opening should be given that \u201cwill serve to make the jury listen to the plaintiff\u2019s witnesses with the thought in their minds that they must not accept the plaintiff\u2019s testimony unreservedly\u2026\u201d\u00a0 Id.<\/em>, \u00a7265.<\/p>\n But even accepting that this might have once been the \u201ctraditional reasoning,\u201d there is no justification to espouse it now.\u00a0 To the extent that the author(s) of the claim have knowledge that many lawyers still adhere to it \u2013 since they claim that only a \u201crespectable population\u201d now think differently \u2013 they should be shouting from the rooftops that this is blasphemy.\u00a0 And what case is not<\/em> \u201cconducive\u201d to an opening statement.<\/p>\n Admittedly, the California text goes on to note reasons to give an opening, explaining that<\/p>\n It is a fact that people remember best that which they hear and see first and best that which they have heard and seen most recently. Importantly, study and experience reveals consistently that the jurors tend to make up their minds about the case early on. Some say that the case is won or lost in the opening statement given the persuasive power it manifests.<\/p>\n California Drunk Driving Law \u00a7 9:08.\u00a0 But this caution does not undo the call to \u201ctraditional wisdom\u201d or the mis-perception that even some cases warrant having no opening at all.<\/p>\n When the moving party makes an opening, unless it is presented without narrative, emotion and reason, the floor in the courtroom has effectively tilted \u2013 and the courtroom will remain tilted throughout the presentation of that party\u2019s case, unless it has been brought back to a level ground by a responsive opening statement.<\/p>\n The two lessons?\u00a0 Those who write treatises with language such as this should not place \u201ctraditional wisdom\u201d that is without support on a par with current, science and experience based principles; and those who read such guides should proceed with caution.<\/p>\n","protected":false},"excerpt":{"rendered":" Monthly LEXIS updates under the search term \u201cprimacy w\/2 recency\u201d produced a hit recently from a California guide on defending Drunk Driving cases.\u00a0 Here is what it claimed: Traditional wisdom had it that the best approach in Opening was to not present one, or at the very least to reserve the Opening. Studies of\u00a0primacy\u00a0and\u00a0recency\u00a0have convinced<\/p>\n","protected":false},"author":31,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"generate_page_header":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[2,3,11],"tags":[],"coauthors":[238],"class_list":["post-2433","post","type-post","status-publish","format-standard","hentry","category-advocacy","category-advocacy-and-evidence-blog","category-trial-advocacy"],"yoast_head":"\n![\"\"](\"https:\/\/law-dev.temple.edu\/aer\/wp-content\/uploads\/sites\/3\/2019\/09\/ancient-wisdom-2-300x169.jpg\")
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