ESSENTIAL TRIAL SKILLS:

OPENING STATEMENTS AND

CLOSING ARGUMENTS

Debra S. Katz
Katz, Marshall & Banks

Hon. Stanley Sporkin

Michael F. Williams
Kirkland & Ellis LLP

February 9, 2012
Opening Statements and Closing Arguments
 Essential Trial Skills:
Opening Statements and Closing Arguments

Debra S. Katz
Katz, Marshall & Banks

Hon. Stanley Sporkin

Michael F. Williams
Kirkland & Ellis LLP

Opening Statements

I. The Purpose of the Opening Statement.

A. The purpose of the opening statement is simply to introduce the parties,

summarize the facts that the evidence will show, state the issues, make it easier
for the jurors to understand what is to follow, outline the harm the plaintiff claims
he/she suffered, and relate parts of the evidence and testimony to the whole.

1. It is not an occasion to argue the case or give personal opinions.

2. Counsel is not required to set forth all of the relevant evidence.

B. Key purposes of the opening statement:

1. To educate the jury as to important issues of fact, key witnesses, and (as
permitted by the court) the applicable legal principles.

2. To alert the jury as to credibility issues concerning certain evidence.

3. To introduce and explain complicated issues or evidence.

a. In some cases, this might mean providing a primer to the jurors on

basic legal principles, such as standard of care or alter ego.

b. In other cases, this might involve educating the jury on the basics
of an unfamiliar industry, or financial transaction, or medical
procedure.

4. To confront weaknesses in your case and explain them reasonably.

a. Addressing the weaknesses up-front may minimize their impact.

b. Being up-front about the weaknesses may also help to enhance

your credibility as an advocate.

5. To establish a relationship with the jury and to build in the jurors a sense
of confidence in you, your integrity, and your knowledge of the case.
Opening Statements and Closing Arguments

II. The Procedures Associated with the Opening Statement.

A. The law varies from jurisdiction to jurisdiction on the question of whether an

opening statement may be given as of right. Most federal cases characterize the
opportunity to give an opening statement as merely a privilege, which may be
granted or withheld depending upon the circumstances of a case. For instance,
courts have held that where the issues are simple and clearly explained by the
court during voir dire, it is not an abuse of discretion to deny counsels requests to
make an opening statement.

B. There is general agreement on the rule that what is said by counsel during opening
statements is not evidence. It is important to note, however, that the trial court is
empowered to grant judgment as a matter of law (a directed verdict) immediately
after the opening statement if it plainly appears that no cause of action exists.

C. A party is not required to set forth all of the facts and theories in support of its
case during the opening statement. The decision not to reference certain facts that
are expected or intended to be proven at trial does not justify the later exclusion of
these facts at trial provided that they are properly put in issue by the pleadings.

D. The trial judge has broad supervisory powers over opening statements, including
the power to interrupt the presentation of opening statements and the authority to
limit the admission of testimony because of representations made by counsel in
the opening statement. These powers are subject to review under an abuse of
discretion standard.

E. As a general matter, the sequence of the opening statements depends on which

party bears the burden of proof. In civil cases, the plaintiff ordinarily opens the
case. In criminal cases, the prosecutor opens the case. The court may adjust the
sequence in either case, however, if there are substantial issues upon which the
defense bears the burden of proof, e.g., an insanity defense, or a counterclaim that
is more significant in the context of the litigation than the plaintiffs claim.

1. The defense may deliver an opening statement immediately following the

plaintiffs opening statement or at the beginning of the defendants case in
chief.

F. The opening statement is not a proper occasion to give personal opinions or to

present argument. As a general rule, opening statement ends and argument begins
when counsel attempts to tell the jury how they should reach their decision,
instead of what the evidence will be.

1. So long as the opening statement is comprised only of a description of the

evidence, the rule against argument does not present much of an issue.

2. Difficulties arise, however, when the advocates engage in interpretation or

exhortation during the opening statement.

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3. Counsel may not urge the jury to draw inferences from facts or to reach
certain conclusions based on the evidence.

4. Counsel may not attempt to explain the importance of certain items of

evidence or suggest how evidence should be weighed.

5. Counsel may not comment directly on the credibility of witnesses during

the opening statement.

6. Counsel may not, in an opening statement, attempt to appeal overtly to the

jurys sense of mercy or justice.

III. Preparing for the Opening Statement.

A. The case theme is a critical aspect of an opening statement (and trial strategy
more generally). A theme is a psychological anchor that jurors instinctively adopt
to distill and summarize what the case is about. That is because information
during the trial becomes complicated and potentially overwhelming. Case themes
become tools that jurors use to organize a large amount of information into
something more manageable and to summarize their attitudes about the
information in easily-remembered words and phrases.

B. Essential steps for preparing the opening statement:

1. Assemble the facts. Organize all of the facts, even the most remote,
according to a useful organizing principle.

a. The most common organizing principle will be chronological.

b. Other organizing principles may include topical, by witness, or by

element of the claims and/or defenses.

2. Review the jury instructions. The courts ruling on instructions typically

occurs after the close of the evidence at trial, but pattern jury instructions
and legal research often provide clear indications of the more likely jury
instructions that will be used with respect to the basic issues in the case.

3. Review and refine your case theme. Based on the facts adduced in
discovery and the jury instructions that are likely to guide the jurors
deliberations, assess whether your case theme is both persuasive and
consistent with the record facts and applicable law.

4. Review and refine the facts that are relevant to your case theory. As you
further develop your understanding of the facts and law in the context of
your case theme, begin to simplify. Determine which facts should be de-
emphasized or discarded because they are not essential to your theory of
the case, and determine which issues should be de-emphasized as clutter

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(e.g. too collateral, confusing, or likely to divert attention from the real
issues.)

5. Review the admissibility of evidence for the opening statement. The facts
introduced in the opening statement should be based on admissible
evidence, and it is improper to refer to facts that cannot be admitted into
evidence at trial.

a. Confirm the basis for each fact included in the opening, with a
citation to an exhibit, transcript, or other evidence.

b. Confirm the sponsor for each fact included in the opening i.e.,
the witness whose testimony will introduce the fact into evidence.

6. Decide on demonstratives. Come to a decision on whether to use

demonstrative exhibits or other non-verbal elements of presentation during
the opening statement.

a. Obtain the courts approval in advance if there is any question as to

the propriety of using any particular demonstrative.

b. Plan precisely how you will present the demonstrative e.g.,

Powerpoint presentation? Handout for the jury?

7. Resolve any introductory statements by the court. Confer with opposing

counsel and resolve during the pre-trial conference whether any stipulated
description of the parties, the case, or the issues will be read to the venire
or the jury before the presentation of opening statements.

a. Adopt and repeat the courts language wherever possible.

8. Evaluate and incorporate in the opening statement information you learn

about individual jurors during jury selection. Monitor carefully the
information you gain during the voir dire process, as the selection of
individual jurors may affect the facts and themes that you present during
the opening statement.

9. Continue to review and refine your case theory. With the understanding
of the individuals who are serving on the jury and the introductory matters
that the court has or will convey, continue to review and refine your case
theory. Most importantly, continue to simplify to the essential facts.

10. Outline the opening statement. Be sure to include all of the elements of a
successful opening statement, but be mindful of the running time.

a. According to some seasoned trial lawyers, 75 minutes is the ideal

length of an opening statement in a complex civil case.

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Opening Statements and Closing Arguments

b. Many experts observe that only exceptional cases should take

longer than 60 minutes to open.

c. As a general matter, do not test the patience of the judge or the jury
by taking longer than necessary during the opening statement.

11. Practice the opening statement and solicit feedback. There is no substitute
for dedicated practice. First, practice with an eye toward further
refinement; then practice with an eye toward committing to memory.

a. Consider conscripting a non-lawyer to provide feedback.

(1) It is useful to have a laypersons view on whether or not

your opening statement is intelligible to a non-lawyer.

(2) It is also useful to have a laypersons view on whether or

not you are telling a compelling and believable story.

b. Stage full dress rehearsals in front of a video camera, making

full use of the demonstratives you intend to use.

12. Sleep is preparation. Be sure to get a proper amount of rest and critical
distance from the opening statement as the day approaches.

IV. The Structure of the Opening Statement.

A. Various approaches to structuring the opening statement.

1. The traditional approach. This approach includes a recognizable

beginning that introduces the main elements of the case, a substantive
discussion in the middle that discusses the facts, witnesses, and issues, and
a conclusion requesting or anticipating a particular result.

a. The advantages of the traditional structure is that it is logical and

easy to follow, especially in cases where the chronology of events
is straightforward but significant.

b. The disadvantage is that the traditional structure does not

necessarily provide the greatest dramatic impact in presentation
and may not be consistent with non-chronological themes.

2. Non-traditional approaches. There is nothing that ties an advocate to the

beginning-middle-end structure of the traditional approach to an opening
statement. Other structures may provide a more persuasive narrative or a
more dramatic introduction to case themes, such as:

a. The flashback approach starts in the middle of a story, focusing

on a particularly relevant day in the narrative of the case. This

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approach is particularly useful for drawing the jurors attention to a

life-changing event, like an accident or a crime.

b. The convergence approach describes the parallel storylines of

two or more parties as they converge on a critical event in the case.
The storylines may be as simple as the approach to an intersection
or as complicated as the development and/or use of an invention.

B. The elements of the opening statement.

1. Prefatory remarks. The preface to the opening statement may be as basic

as introducing oneself and ones client, along with a sentence or two that
summarizes a case theme.

a. Traditionally, the prefatory remarks use an oft-repeated analogy to

explain the role of the opening statement in the context of the trial
e.g., describing the case as a jigsaw puzzle, with pieces of
evidence representing its constituent parts, or the opening
statement as a road map, with each piece of evidence being a step
along the way to a particular destination.

(1) The advantage of this approach is that it is familiar and

easy to recall, which may encourage a confident delivery
and meet the expectations of jurors who expect trials to
proceed according to rituals they have seen in pop culture.

(2) The disadvantage of this approach is that it spends valuable

time on housekeeping matters that are not directly relevant
to the specific case at hand.

b. An alternative approach is to provide a cold open: a one or two

minute description of the case theme, or a description of key events
that builds interest in the relevant facts of the case.

2. Introduction of parties, witnesses, and evidence. Identify the key

witnesses and explain their roles in the case. Describe the important
times, locations, and other circumstances relating to important events.

a. Use the opening statement as an opportunity to personalize your

client. If your client is an individual, portray him or her as a
unique person with a contextual history, admirable personal
qualities, and understandable weaknesses.

b. If your client is a corporation, then explain the nature of the client

to the jurors in familiar terms. Remind the jurors of the
components and features of a corporate client:

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(1) The corporation is a business that is organized by

individuals who are no different from the jurors. It
employs individuals like the jurors, who cooperate and
work toward a shared goal. The key point is that the
corporation is made of people, not glass and concrete.

(2) If it is consistent with your theme, explain to the jurors that

corporations have many legal rights and obligations that are
no different from those of natural persons.

(3) Consider describing the corporation by what it produces,

using the corporations products as demonstrative exhibits
if appropriate. Emphasize the corporations contributions
to society, both in its for-profit activities and in its
charitable contributions of time and energy.

c. Do not put your client on a pedestal. Do not overstate your clients

virtues. To do so risks generating resentment from the jurors.

3. Summary of facts. The most important part of the opening statement is a

summary of the evidence that you intend to prove. Most of the opening
statement will be devoted to this goal. Consider whether a chronological
approach, or a witness-by-witness discussion, or a different approach
makes the most sense in the context of your case themes.

4. Discussion of adverse facts. Acknowledging some adverse facts and

providing non-argumentative context for them may help to defuse
skepticism about your case and improve your credibility in the eyes of the
jury. The amount of time and energy to expend in addressing adverse
facts and the decision about when in the opening statement to do so is a
case-specific strategic issue. An opening statement that is too responsive
may be impermissibly argumentative and send the message to the jurors
that you assign an outsized importance to adverse facts.

5. Description of key issues. Describe the claims and defenses in the case in
a non-argumentative way. Use common language to discuss the legal
issues, highlighting and explaining any legal terms that will recur
throughout the trial. If the judge provides an introductory statement that
previews the facts and issues for the venire or the jury, then be sure to use
words and phrases that the judge has employed. Your adoption of the
judges terminology will add to your credibility.

6. Explanation of the burden of proof. The burden of proof is a complicated

subject for non-lawyers, and there are advantages to explaining the
concept during the opening statement. Defendants will emphasize the
responsibility of the plaintiff or the prosecution to produce evidence and
persuade the trier-of-fact. The plaintiff will contrast the lesser burden

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assigned in civil proceedings (e.g. the scales of justice need only to tip
ever so slightly) to the reasonable doubt criminal standard.

7. Discussion of anticipated defenses. In most jurisdictions, there is no

rebuttal opening statement. Accordingly, if a plaintiff wants to address
(and potentially pre-empt) a defense theme in the opening statement, then
he or she must raise the issue, ideally in a way that is not argumentative
and that does not give the anticipated defense too much credence.

8. Damages. A plaintiff should discuss at least the existence of damages in

the opening statement, as causation and injury are probably elements of
the substantive claim in the case. Beyond that, the amount of detail about
damages that counsel discusses presents a case-specific strategic question.

a. If a plaintiff introduces a specific damages amount in the opening

statement, it may indicate to the jury that the dispute is important
and substantial. At the same time, a large prayer for damages
(introduced without the context of detailed evidence of the
plaintiffs injuries) may provide the defendant ammunition for
arguing that plaintiffs case is actually based on greed.

b. Ordinarily, a lawyer will wait to discuss specific damage figures

until the parties have adduced evidence relating to injury. But a
plaintiff will nevertheless at least mention certain categories of
damages, especially if they might involve concepts that are
unfamiliar to most jurors, such as intangible harms.

9. Conclusion. The conclusion of the opening statement should be forceful

and concise enough to be conducive to a confident delivery. It should
include a request that advises the jury of the precise result that you desire
or anticipate as a result of the trial.

V. Objections and Preserving the Record for Appellate Review.

A. Be wary of objecting during the opening statement. Jurors rarely appreciate

objections at any phase of the trial, and it is particularly likely that jurors will
perceive an objection during the opening statement to be an obstructionist tactic.

1. Regardless for whether it will frustrate jurors, it is necessary to raise a

timely objection in order to preserve an issue for appeal.

2. The preferable strategy is to anticipate potential issues such as

prejudicial inadmissible evidence to which your opponent may refer
during the opening statement and confront them through pretrial motion
practice before the trial begins. If you have a concern that your opponent
intends to reference evidence during the opening that you believe is
inadmissible, ask your opponent in advance of the opening statement so

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that you can raise the issue with the court prior to your opponents
delivery of the opening statement.

3. Ask your opponent to show you any demonstrative exhibits or deposition

video portions he/she intends to show during opening statement. If you
have an objection, raise it with the court prior to the opening.

4. Use objections only sparingly during the opening statement, and do not
object unless you are highly confident that the court will sustain your
objection. The following issues are typically important enough to warrant
an objection:

a. Overt improper argument, especially when it is repeated

throughout the adversarys opening statement, and buttressed by an
argumentative tone of voice, facial expressions, and gestures.

b. References to matters that the court has already excluded by

pretrial order.

c. References to inadmissible or non-existent evidence. On this

point, however, be cautious that a court is likely to give an
advocate wide latitude in anticipating that it will be able to secure
admission of evidence referenced in the opening statement.

d. References to a defendants insurance, unless the issue of

insurance coverage is independently relevant to the case.

e. References to an inadmissible criminal record.

f. Statements by counsel regarding his or her opinions or knowledge.

g. Overreaching appeals to the sympathy or prejudice of the jurors.

h. Misstatements of the law.

i. References to a criminal defendants failure to testify.

5. If you anticipate that you will need to object during the opening statement,
you might try to defuse the jurors frustration by advising them during voir
dire or the opening statement of the need to raise objections in order to
preserve the integrity of the trial. A trial judge may also provide an
instruction upon request as part of the preliminary remarks to the jury.

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Closing Arguments

VI. The Purpose of the Closing Argument.

A. The closing argument is the considered by many to be the quintessential, most

traditional form of legal advocacy. The lawyer has an opportunity to use nearly
all rhetorical tools and devices in support of his or her theory of the case, and
closing argument is the only time during trial when the lawyer can hold forth,
uninterrupted, on the merits of his or her clients case under the applicable legal
standard. It is a lawyers final call to action to the jury.

B. The objectives of a closing argument include:

1. To provide a rationale, based on the relevant facts, to support your theme

of the case and your theory of the case.

2. To state your case boldly, in an effort to convince the jury that you have
prevailed in proving disputed factual issues.

3. To review the facts, especially the facts upon which your case relies.

4. To address gaps in the evidence, including theories raised by your

adversary that have been shown to be unsupported by evidence.

5. To propose conclusions based on the evidence, including reasonable

inferences from the evidence.

6. To refer to exhibits, writings, documents, transcripts, illustrations, and

matters of common knowledge in support of your clients case, and to
point out your adversarys failure to adduce evidence available to him that
might have supported his or her claims and/or defenses.

7. To anticipate and address facts upon which your adversary may rely, and
to try to defuse their impact. (This objective may not apply in a criminal
case, where the prosecutor could be unaware of the defendants case
themes prior to rebuttal, and where it may be improper for the prosecutor
to comment on the defenses arguments before they are presented.)

8. To discuss the law. As with the opening statement, it makes sense to use
the same language that the court will use to instruct the jury as to the law.
Unlike the opening statement, however, the closing argument is the proper
vehicle for explaining how the law should be applied to the record
evidence before the jury in a particular case.

9. To discuss damages. This is a plaintiffs opportunity to request a certain

amount of damages or to make a less specific request to the jury with the
context of the record evidence relating to plaintiffs alleged injuries.

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Opening Statements and Closing Arguments

10. To reinforce the points that you made at the beginning of the trial, in your
opening statement.

11. To reaffirm the jurys belief in your and your case by describing how you
fulfilled every commitment made in your opening and, to the degree
possible, by discrediting your adversarys theory of the case.

12. To argue and tell the story. The closing argument is the time and place for
using analogies, hypotheticals, rhetorical challenges, and other time-tested
persuasive devices in the service of the case theme. This is the advocates
opportunity to motivate the jurors with a bold call to justice.

13. To convey a strong call to action that the jury can right a wrong, send a
strong signal, protect its community, act as the conscientious of the
community, etc. and as with a request for punitive damages, deter others
from harming anyone else in this manner.

VII. The Procedures Associated with the Closing Argument.

A. In a typical two-party case, three closing arguments are presented: (1) argument
by the plaintiff or prosecution (bearing the burden of proof); (2) argument by the
defense; and (3) rebuttal argument on behalf of the plaintiff or prosecution.

1. Although the plaintiff ordinarily has the right to begin and end the final
argument, the defense in a civil case may open and close the closing
argument where it has the burden of proof on a central issue, such as a
statute-of-limitations defense tried separately.

2. In criminal trials, the prosecution opens and closes the closing argument.
Where the defendant has the burden of proof, the state has the right to
open and close the argument. In jurisdictions where separate proceedings
are used to determine a criminal penalty, the prosecution generally opens
the final argument, but the defendant is given equal time, as neither party
bears a burden of proof as to the penalty.

3. The scope of the plaintiffs rebuttal is generally determined by and limited

to the issues raised in the arguments that precede it. Generally, it is
improper to raise new issues in rebuttal that could have been raised in the
initial closing argument and that were not raised by the defense. The
scope of the rebuttal lies at the discretion of the trial court.

VIII. Organizing the Closing Argument.

A. Although the closing argument is ultimately based on what occurs at trial, it is

important to develop a persuasive case theme early on, and then to craft it into a
compelling argument, long before the evidence is presented. The best course is to

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begin preparing the closing argument at the very outset of the case, and then to
refine the closing throughout the pretrial and trial proceedings.

B. Early development of the closing argument helps to focus the theme, which helps
to bring clarity to the entire case. Although the argument and the case theme may
change as new facts are developed, the chances that your trial presentation will be
internally consistent and logically compelling will be enhanced if you start
building the case with the closing argument in mind.

C. The following steps are essential for organizing the closing argument:

1. Assemble the facts. The facts will change as pretrial discovery and the
trial progress, so it is mission-critical that you keep your fact development
files current. The theory of the case and the jury instructions you will
request will depend on the facts that are proven at trial. Obviously, being
able to refer to transcripts helps a great deal.

2. Determine what law applies. The legal theory supporting your case will
be based on the jury instructions determined by the judge at a charge
conference, which will probably follow the close of evidence. Your case
theme and trial presentation, in turn, will depend on the legal theory that
you will need to argue to the jury. It is essential to discuss the law during
your closing argument. Your characterization of the facts and structure of
the closing will depend on the legal theory that you adopt.

3. Review the theory of the case. Be prepared to revisit your theory of the
case as you are developing the facts and analyzing legal theories.
Although the theory of the case will probably change as the trial unfolds,
having a basic trial outline based on the theory of the case will allow you
to make important strategic decisions about what facts to emphasize and
how to sequence your witnesses. The theory need not include every
potentially applicable fact and legal theory, but it should be logical and
consistent with the key evidence in the case.

4. Determine the respective burdens of proof. Consider how you will explain
the burden of proof to the jurors in your case. The burden of proof is an
important legal issue that is subject to characterization by the parties to a
case. The closing argument is your last opportunity to impart to the jurors
your explanation as to why the burden favors your client.

5. Confirm the sequence of closing arguments. The plaintiff or prosecution

generally enjoys the right to commence and to conclude final argument,
but the defense may be allowed to open and close if the defendant carries
the burden of proof on a substantial issue. The sequencing of the
arguments is crucial for their content, so be sure to resolve (through
motions practice or other request of the court, if necessary) which of the
parties will open and close the closing arguments.

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6. Determine how damages will be assessed. For the plaintiff, decide what
standards and categories of damages you will request, and settle on how
you will request from and justify the damages to the jury. For the
defendant, compile your arguments that the damages requested are
overstated or speculative.

7. Confirm the evidence that will be addressed. It is not only improper to

rely upon facts that are not part of the evidence in the closing argument,
but it may be considered by the jurors (prodded by your adversary) to be a
broken commitment that harms your credibility. As you get closer to a
final version of your closing argument, be sure to continuously confirm
that the facts upon which you rely can be traced to admissible evidence.

8. Decide on demonstratives and other materials. Having confirmed the

evidence that is available for reference in the closing argument, determine
what demonstratives or other materials will be part of the argument. Keep
in mind that charts, deposition clips, excerpts of testimony, and other
presentation materials require logistical preparation and might also require
approval from the court. If there is no substantial question that you will be
able to use the exhibit or evidence, however, it may be the best strategic
course to avoid alerting your adversary as to what you plan to use.

9. Continually reassess the case theme. This aspect of preparation requires

greater attention than might have been the case with respect to the opening
statement. Avoid slavish adherence to a theme or theory when there is a
risk that its factual predicates have not been borne out by the evidence.

10. Prepare a strong conclusion. Begin and end the argument with impact.

a. Many well-known trial lawyers deliver a stock story that they think
stirs the emotions of the jury and that can be easily adapted to the
particular facts of the case they are litigating. The point of this
approach is to have a standard, well-practiced monologue with
which the attorney is sufficiently comfortable to deliver flawlessly
and confidently. This, however, may sound canned and thus
disgenuous.

b. Regardless for whether you decide to use a stock ending, make

sure that you can deliver the conclusion to your closing argument
without referring to notes and while maintaining eye contact with
the jurors. Be sure to speak to each individual juror. Try to
motivate them into action on behalf of your client.

c. If you are a plaintiff with a right of rebuttal, plan a strong ending

for your rebuttal, based on the arguments that you anticipate the
defense will make. Keep in mind that the defense will have no

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opportunity to respond to your rebuttal argument, so make the

most of the advantage of recency.

11. Practice the closing argument and solicit feedback. As with the opening
statement, there is no substitute for practicing the closing argument. Do
not expect that you can extemporize effectively. Over the course of the
trial, there will be too much information and too many variables to
organize on the fly. Practicing your argument to the extent that you can
given the time constraints will help you ensure that you are not
neglecting important points or muddling through a disorganized argument.

IX. Preparing for the Closing Argument.

A. The closing argument generally follows a straightforward structure: briefly review

the evidence; list the key issues to be resolved; review the burden of proof;
describe the damages suffered; and then argue in detail, by reference to the
evidence, why the evidence requires favorable resolution of the issues.

1. There is less time to prepare a closing argument than there is to prepare an

opening statement, owing to the fluid and unpredictable nature of trial.
For that reason, it may be helpful to develop template structures to use as
an organizing principle for the closing argument. It may be more
important to focus on presenting the evidence and argument from your
case and less importance to devise creative structures for presentation.

B. The following are key elements of a closing argument:

1. Prefatory remarks. The standard preface of a closing argument begins

with recognition of the jurys patient participation and with an explanation
of the procedures relating to closing argument. This discussion includes
an explanation of the role of jurors as triers-of-fact, as contrasted with the
judges role as instructor in the law. The standard preface is popular
because it is easy to remember and may be presented without reference to
notes. It is also useful for building rapport with the jurors.

a. A different approach might lead the closing arguments with a

return to the case themes or an aggressive recitation of the relevant
facts or key issues. It is advisable in any event, however, to offer
some words of appreciate to the jurors for their service, lest the
advocate run the risk that his or her adversary be alone in thanking
the jurors for their time and attention to the case.

2. Statement of the facts. In the closing argument, it is not necessary to re-

introduce parties and events, as the jurors will be familiar with the key
elements of the case by this point (and if they are not, then it is unlikely
that introductions in the closing argument will help the situation). Rather,
counsel should focus on the specific witness testimony and evidence that
is necessary for resolving conflicts later in the argument.

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3. Applicable law and the burden of proof. Summarize the legal issues based
upon the instructions the jury will receive, using the terms that the court
will use to instruct the jury. Preview the verdict form for the jury. Outline
the causes of action and briefly explain each element.

4. Description of the issues and their resolution. Counsel should define the
issues in as much detail as is necessary to make them understandable to
the jurors. This may require a detailed explanation in laypersons terms of
legal standards and concepts. It makes sense to outline the issues in the
order in which the advocate intends to address them, and it is often helpful
to use a chart or a whiteboard to keep track of the various issues.

a. In the interest of simplifying the case, an advocate should focus the

jurors attention on key issues and identify any uncontested facts.

b. Bear in mind, though, that the plaintiffs and prosecutors typically

benefit the most from the simplification of the case. For
defendants, it may be more strategic to stress the burdens that the
plaintiffs and prosecutors bear in order to prevail in their cases.

c. Spend most of the argument on resolving how the elements of the

claims compare with the evidence presented. Review the evidence
on each contested issue in detail so that the jury will focus clearly
on the issue.

(1) Point out any inconsistencies, discrepancies, or gaps in the

proof offered by your adversary.

(2) Explain any gaps in the storyline that you have presented to
the jury.

(3) Draw favorable or neutral inferences from record evidence

to fill in the missing pieces in your case.

(4) Where there is a conflict in the evidence, argue from

consistency with physical evidence, the weight of all
evidence presented, the conclusion that is most consistent
with common sense, and the support of the most credible
witnesses.

5. Damages. The closing argument is the first and may be the only
opportunity for the plaintiff to discuss damages in the context of what the
jury has actually seen and heard from the client about the injuries suffered.

a. From the defense point of view, the safest strategy is often to

address damages early in the argument and then to focus on
liability. Focusing on damages risks lending unwarranted dignity
to the plaintiffs position. The defendant should point out that it is

15
Opening Statements and Closing Arguments

discussing damages only because it is compelled to do so, and even

then, only out of an abundance of caution.

6. Conclusion. Deliver a strong, dramatic, and positive reaffirmation of the

themes of your case. Consider using a stock conclusion that includes a
general appeal to justice or equity, practiced enough times that it can be
delivered without hesitation or resort to notes. The principle of recency
dictates that you leave the jurors with the best impression possible.

7. Rebuttal. Properly viewed, rebuttal is an opportunity to respond to

arguments made by the defense after the plaintiffs initial argument. It is
not an opportunity to repeat what was said during the initial closing
argument. It is not necessary and is often strategically a bad idea to try
to answer every point made by the defense.

X. Objections and Preserving the Record for Appellate Review.

A. As with opening statements, it is necessary to make a timely objection in order to

preserve the record on appeal relating to misconduct by an adversary during
closing arguments.

1. In some federal jurisdictions such as the First Circuit it is permissible

to object at the completion of an argument, instead of interrupting.

2. When an objection is necessary, an advocate should consider whether it is

necessary also to make a motion to strike and, if there is serious unfair
prejudice, a motion for a mistrial.

B. Although jurors do not welcome objections, they ordinarily accept objections

more readily during closing arguments, after they have had an opportunity to hear
all of the evidence and learn something about the personalities involved in the
case. It is nevertheless still a good idea to use objections with restraint.

1. As with opening statement, do not object during closing arguments unless

the issue is serious and the objection is likely to be sustained.

C. The following are valid grounds for objecting to a closing argument:

1. Providing improper statements of the law. The law of the case is

instructed by the court. The instructions should be used exclusively as the
basis for arguing the law to the jury. An incorrect statement of the law
may warrant a mistrial.

2. Attacking the law or the courts rulings. It is improper to attack any court
ruling before the jury, including the courts rulings on evidence. The
proper avenue for challenging the courts rulings is through the appellate
process. It may be reversible error to argue to the jury that the court erred,

16
Opening Statements and Closing Arguments

and it is also questionable as a matter of strategy for an advocate to pit the

lawyer against the credibility of the court.

3. Misstating the evidence. Although counsel may argue regarding

inferences from evidence in the record, counsel may not create evidence
without factual support.

4. Vouching for witnesses. A lawyer may not personally endorse a witnesss

credibility during closing argument. By presenting purported first-hand
knowledge of a witnesss character, a lawyer would effectively become an
unsworn witness in the litigation. This rule does not prevent an advocate
from arguing based on evidence in the record (as opposed to personal
knowledge) that a witness is credible or not credible.

5. Stating personal beliefs. Counsel may not advocate their personal beliefs
during the closing statement. The best practice is to avoid phrases such as
I think or I believe, even though many courts tend to give counsel
significant latitude when the use of the phrase does not appear to be
purposeful. At bottom, courts look to whether counsel is providing
inferences and interpretations from evidence or arguing from personal
knowledge in determining whether or not this rule has been violated.

6. Improperly exciting prejudice, passion, or sympathy. Inflammatory

language is improper and may serve as a valid ground for a mistrial.
Counsel should avoid making derogatory comments about opposing
counsel or the opposing party, or improper stories or descriptions that are
designed to provoke sympathy for the client or prejudice against the
opponent. The same principle applies to arguments about the relative
wealth or poverty about the parties, or any appeal to the conscience of the
community or other policy objectives that are divorced from the law or
the facts of the specific case before the court.

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Opening Statements and Closing Arguments

Appendix A Bibliography on Opening Statements and Closing Arguments

Opening Statements

Morgan Chu, Opening Statement, Practising Law Institute, Litigation and Administrative
Practice Series Litigation, 841 PLI/Lit 251 (2010).

Weyman I. Lundquist, Advocacy in Opening Statements, reprinted in Section of

Litigation, American Bar Association, The Litigation Manual: A Primer for Trial Lawyers at 425
(John G. Koetl, ed. 1989).

James W. McElhaney, The Credibility of the Lawyer, reprinted in Section of Litigation,

American Bar Association, McElhaneys Trial Notebook at 107 (3d ed. 1994).

James W. McElhaney, Goals in Opening Statements, reprinted in Section of Litigation,

American Bar Association, McElhaneys Trial Notebook at 124 (3d ed. 1994).

James W. McElhaney, Snapshots, reprinted in Section of Litigation, American Bar

Association, McElhaneys Trial Notebook at 187 (4th ed. 2006).

James W. McElhaney, The Story Method, reprinted in Section of Litigation, American

Bar Association, McElhaneys Trial Notebook at 132 (3d ed. 1994).

Kenneth J. Melilli, Succeeding in the Opening Statement, 29 Am. J. of Trial Advoc. 525
(2006).

Abraham P. Ordover, Persuasion in the Opening Statement, reprinted in Section of

Litigation, American Bar Association, The Litigation Manual: A Primer for Trial Lawyers at 432
(John G. Koetl, ed. 1989).

Peter Perlman, The Compelling Opening Statement Two Minute Markers, Practising
Law Institute, Litigation and Administrative Practice Course Handbook Series, 780 PLI/Lit 399
(2008).

John C. Shea, A Practical Guide to Opening Statements, Practising Law Institute,

Litigation and Administrative Practice Series Litigation, 841 PLI/Lit 281 (2010).

I. Jerome Stern, Openings Statements Defense View, Practising Law Institute,

Litigation and Administrative Practice Course Handbook Series, 780 PLI/Lit 407 (2008).

Richard Waites, The Psychology of Powerful Opening Statements, Practising Law

Institute, Litigation and Administrative Practice Course Handbook Series, 809 PLI/Lit 235
(2009).

Fred Wilkins, Art of the Opening Statement, Practising Law Institute, Litigation and
Administrative Practice Course Handbook Series, 780 PLI/Lit 437 (2008).

18
Opening Statements and Closing Arguments

Dan K. Webb & J. David Reich, Trial Strategy: The Opening Statement, Practising Law
Institute, Litigation and Administrative Practice Course Handbook Series, 780 PLI/Lit 371
(2008).

Closing Arguments

Charles Becton, Using Your Voice in Closing Argument, Practising Law Institute,
Litigation and Administrative Practice Series Litigation, 842 PLI/Lit 383 (2010).

Frank Cicero, Nondefensive Final Argument for the Defense, reprinted in Section of
Litigation, American Bar Association, The Litigation Manual: A Primer for Trial Lawyers at 455
(John G. Koetl, ed. 1989).

John T. Cox III & Jason S. Bloom, In Closing: Strategies for Creating and Arming Jurors
in the Closing Argument, 71 Tex. B.J. 266 (2008).

Dr. Leslie Ellis, Tips from a Trial Consultant Closing Arguments in Patent Cases,
Practising Law Institute, Patents, Copyrights, Trademarks, and Literary Property Course
Handbook Series, 875 PLI 505 (2006).

Bob Gibbins, Closing Argument: Consolidating Your Theme, Practising Law Institute,
Litigation and Administrative Practice Series Litigation, 842 PLI/Lit 395 (2010).

Christopher Hart, Using Jury Instructions to Your Advantage, 35 Litigation 37 (Winter

2009).Linda L. Listrom, Crafting a Closing Argument, 33 Litigation 19 (Spring 2007).

John L. Kane, Riding Jury Instructions to Victory, 36 Litigation 28 (Winter 2010).

James W. McElhaney, Analogies in Final Argument, reprinted in Section of Litigation,

American Bar Association, McElhaneys Trial Notebook at 645 (3d ed. 1994).

James W. McElhaney, Damages Versus Liability, reprinted in Section of Litigation,

American Bar Association, McElhaneys Trial Notebook at 701(4th ed. 2006).

James W. McElhaney, Dealing with Dishonesty, reprinted in Section of Litigation,

American Bar Association, McElhaneys Trial Notebook at 695 (4th ed. 2006).

James W. McElhaney, The Final Five, reprinted in Section of Litigation, American Bar
Association, McElhaneys Trial Notebook at 666 (3d ed. 1994).

James W. McElhaney, The Law of Final Argument, reprinted in Section of Litigation,

American Bar Association, McElhaneys Trial Notebook at 621 (3d ed. 1994).

James W. McElhaney, Solving Problems with Final Argument, reprinted in Section of

Litigation, American Bar Association, McElhaneys Trial Notebook at 633 (3d ed. 1994).

19
Opening Statements and Closing Arguments

Tucker Ronzetti & Janet Humphreys, Avoiding Pitfalls in Closing Arguments, Practising
Law Institute, Litigation and Administrative Practice Course Handbook Series, 809 PLI/Lit 731
(2009).

Stephen Susman, Closing Arguments, Practising Law Institute, Litigation and

Administrative Practice Series Litigation, 842 PLI/Lit 367 (2010).

James Touhy, Effective Final Argument for the Plaintiff, reprinted in Section of
Litigation, American Bar Association, The Litigation Manual: A Primer for Trial Lawyers at 446
(John G. Koetl, ed. 1989).

Advocacy

David Berg, The Trial lawyer, 31 Litigation 8 (Summer 2005).

John L. Kane, Jr., The Risk of Non-Persuasion: An Irreverent View, reprinted in Section
of Litigation, American Bar Association, The Litigation Manual: A Primer for Trial Lawyers at
323 (John G. Koetl, ed. 1989).

Stephanie Kane, Narrative: The Essential Trial Strategy, 34 Litigation 52 (Summer

2008).

Bryan A. Garner, The Winning Oral Argument (West 2009).

Brian J. Hurst, Elementals of Courtroom Delivery and Advice on When to Show Them
the Truck, 36 Litigation 6 (Fall 2009).

Robert H. Klonoff & Paul L. Colby, Winning Jury Trials: Trial Tactics and Sponsorship
Strategy (LexisNexis 2d ed. 2002).

Steven Lubet, Modern Trial Advocacy: Analysis & Practice (NITA 2d ed. 1997).

Thomas A. Mauet, Trial Techniques (Aspen 6th ed. 2002).

Jonathan M. Purver, et al., The Trial Lawyers Book: Preparing and Winning Cases (The
Lawyers Coop. 1997).

Joel J. Seidemann, In the Interest of Justice: Great Opening and Closing Arguments of
the Last 100 Years (ReganBooks 2004).

Jacob A. Stein, The Rhetorical Question and Other Forensic Speculations, reprinted in
Section of Litigation, American Bar Association, The Litigation Manual: A Primer for Trial
Lawyers at 329 (John G. Koetl, ed. 1989).

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Opening Statements and Closing Arguments

Appendix B - Ethical Issues in Opening Statements and Closing Arguments

I. SELECTED ETHICAL RULES

Rule 1.3 Diligence and Zeal

(a)A lawyer shall represent a client zealously and diligently within the bounds of
the law.

(b)A lawyer shall not intentionally:

(1) Fail to seek the lawful objectives of a client through reasonably available
means permitted by law and the disciplinary rules; or

(2) Prejudice or damage a client during the course of the professional

relationship.

(c)A lawyer shall act with reasonable promptness in representing a client.

Rule 3.4 Fairness to Opposing Party and Counsel

A lawyer shall not:

(d) Obstruct another partys access to evidence or alter, destroy, or conceal

evidence, or counsel or assist another person to do so, if the lawyer
reasonably should know that the evidence is or may be the subject of
discovery or subpoena in any pending or imminent proceeding. Unless
prohibited by law, a lawyer may receive physical evidence of any kind
from the client or from another person. If the evidence received by the
lawyer belongs to anyone other than the client, the lawyer shall make a
good-faith effort to preserve it and to return it to the owner, subject to
Rule 1.6;

(e)Falsify evidence, counsel or assist a witness to testify falsely, or offer an

inducement to a witness that is prohibited by law;

(f)Knowingly disobey an obligation under the rules of a tribunal except for an

open refusal based on an assertion that no valid obligation exists;

(g)In pretrial procedure, make a frivolous discovery request or fail to make

reasonably diligent effort to comply with a legally proper discovery
request by an opposing party;

(h)In trial, allude to any matter that the lawyer does not reasonably believe is
relevant or that will not be supported by admissible evidence, assert
personal knowledge of facts in issue except when testifying as a witness,
or state a personal opinion as to the justness of a cause, the credibility of a

21
Opening Statements and Closing Arguments

witness, the culpability of a civil litigant, or the guilt or innocence of an

accused; or

(i)Request a person other than a client to refrain from voluntarily giving relevant
information to another party unless:

(1) The person is a relative or an employee or other agent of a client; and

(2) The lawyer reasonably believes that the persons interests will not be
adversely affected by refraining from giving such information.

II. D.C. VOLUNTARY STANDARDS FOR CIVILITY IN PROFESSIONAL CONDUCT.

Preamble: Civility in professional conduct is the responsibility of every lawyer.

While lawyers have an obligation to represent clients zealously, we must also be
mindful of our obligations to the administration of justice. Incivility to opposing
counsel, adverse parties, judges, court personnel, and other participants in the
legal process demeans the legal profession, undermines the administration of
justice, and diminishes respect for both the legal process and the results of our
system of justice.

General Principles:

1. In carrying out our professional responsibilities, we will treat all participants

in the legal process, including counsel and their staff, parties, witnesses, judges,
and court personnel, in a civil, professional, and courteous manner, at all times
and in all communications, whether oral or written. We will refrain from acting
upon or manifesting racial, gender, or other bias or prejudice toward any
participant in the legal process. We will treat all participants in the legal process
with respect.

3. We will not, even if called upon by a client to do so, engage in offensive

conduct directed toward other participants in the legal process nor will we abuse
other such participants in the legal process. Except within the bounds of fair
argument in pleadings or in formal proceedings, we will abstain from disparaging
personal remarks or acrimony toward such participants and treat adverse
witnesses and parties with fair consideration. We will encourage our clients to act
civilly and respectfully to all participants in the legal process.

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Opening Statements and Closing Arguments

Appendix C Fact Pattern for Course Demonstrations

Fact Pattern Based Upon Facts of Burlington Northern v. White
Before June 2007, Ralph Ellis operated a forklift for Atlas Foundry at its foundry in
Birmingham, Alabama. In June 2007, Ellis resigned from the forklift position in order to work
on a casting furnace. Ellis earned more pay than he would have if he had continued working in
the forklift position. Mark Blake, superintendent of the plant, interviewed Donna White for a
job with Atlas and expressed interest in White's experience operating a forklift.
On June 23, 2007, Atlas hired White to work in the plaints maintenance department, and
following White's hire, Blake assigned her to operate a forklift. White had operated a forklift for
other companies and was well aware that the work environment in the foundry would be
predominantly if not exclusively male and that she would likely experience resistance among her
co-workers to her presence at the workplace. But, White, who is a single mother, prided herself
on having a thick skin and was prepared to put up with this type of environment to earn the kind
of money such a position paid. She knew what she was in for but felt confident in her ability to
handle it.
As White anticipated, she was the only female working in the maintenance department. White's
immediate supervisor was foreman Bill Smith. Smith had never supervised a woman before, and
he admitted in his deposition that he treated White differently because of her gender but that in
fact he tried to go easier on her than he did with his men. He also admitted that he did not
believe that the maintenance department was an appropriate place for women to work.
According to White, Smith repeatedly expressed this belief to her while she was working under
his supervision. According to Smith, several other Atlas employees also expressed the belief that
women should not work in a foundry, much less in the maintenance department. Another Atlas
employee agreed in deposition that there was "a general anti-woman feeling" among Atlas
employees at the plant but that same employee also testified White never seemed upset by things
that happened on the job and that she told him and others that she liked working for Atlas.
Despite concerns about the propriety of a woman working in maintenance, White did not have
difficulty performing her job and in fact did a very good job. According to Blake, he never
received any complaints about White's performance operating the forklift. Smith testified that
White had no problems performing her job. Furthermore, another Atlas foreman testified that no
one expressed concern about White's ability to get along well with others in the workplace or
about anything specific to White other than her gender an whether she actually fit in at Atlas.
Atlas has a sexual harassment policy that prohibits unwelcome verbal or physical conduct that
denigrates or shows hostility toward another person because of his or her gender, where such
conduct interferes with an individuals work performance or creates an intimidating, hostile or
offensive work environment. The Companys policy requires that employees who believe that
they have been subjected to sexual harassment immediately report such concerns to the
Companys Human Resources Department. At the time of Whites hire, she was given a copy of
the policy and signed a statement saying that she had read the policy.
On September 16, 2007, about three months after being assigned to work operating a forklift,
White complained to Blake and other company officials about specific incidents of alleged
sexual harassment committed by Smith. She complained, for example, that Smith denigrated her
for not being feminine enough and allowed her male-coworkers to make sexist comments and

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Opening Statements and Closing Arguments

tell off-color jokes in her presence. White admitted that neither Smith nor her co-workers ever
touched her or subjected her to sexual advances or demands for sexual contact. Rather, her
primary complaint was that Smith repeatedly told her that women should not work in a foundry
and that she was taking away a position from a man who was responsible for supporting a
family. White told Blake and other Company officials that she did not mind the jokes, but she
was bothered by Smiths remarks. She emphasized, however, that she has a thick skin and did
not let it affect how she performed her job, but she just wanted Smith to stop the remarks. The
Company investigated Whites complaints and confirmed that Smith had in fact made the
comments she complained about. The Company suspended Smith for ten days and ordered him
to attend a training session regarding sexual harassment at his own expense.
On September 26, 2007, Blake met with White to inform her that as a result of her complaint, the
Company had disciplined Smith and would require Smith and the entire the maintenance
department to undergo sexual harassment training. However, he also told her that the company
had learned during the course of the investigation of several complaints about her working in the
forklift position. According to Blake, the complaints did not relate to her performance but to the
fact that the forklift position was a less arduous and cleaner job than other foundry positions,
which required heavy lifting in a hot and dangerous environment. Blake testified that other
employees, including Ellis, complained about a junior employee being allowed to work the
forklift instead of "a more senior man." Other witnesses testified that the forklift job was
generally considered a physically easier and cleaner job than other foundry positions, although it
required more qualifications, and that Whites co-workers felt that the Company was giving her
preferential treatment because she is a woman by giving her this position. Smith testified that
other foundry workers complained about White being allowed to hold the position instead of a
male employee and that this was creating morale problems in the Department. Smith also
testified that Whites co-workers did not like working with her because they felt that if they did
anything wrong, she would run right to the H.R. Department a threat she had made to them
directly.
During the September 26, 2007, meeting regarding the resolution of White's internal sexual
harassment complaint, Blake informed White that he was removing her from the forklift position
and assigning her to a standard foundry position because of her coworkers' complaints. Her pay
and benefits remained the same, but her new job was, by all accounts, more arduous, dirtier, and
more dangerous than the forklift position. In the new job, she spent most of her shift lifting 10-
to 30-pound molds hot out of a casting oven and shaking out the castings. The work
environment was extremely noisy, hot, and filled with fumes and dust. Worker injuries were
commonplace in this position.
Blake replaced White with Ellis, the only other employee qualified to perform the forklift job.
Blake admitted at trial that he had heard complaints about White being allowed to work the
forklift before she complained of discrimination but that he did not remove her from the position
until after she complained of discrimination.
Blake's trial testimony is inconsistent with Atlas's interrogatory response. In that response, the
company stated that it removed White from the forklift position because a more senior employee
claimed the job according to the collective bargaining agreement. Blake, however, testified at
trial that the forklift job was not governed by the collective bargaining agreement and that he had
the discretion to place anyone he chose in that position regardless of seniority. Moreover,
neither the union, nor anyone else, initiated a grievance about White's operation of the forklift.

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Opening Statements and Closing Arguments

A union official testified that the union's records did not reflect any complaints regarding White's
assignment to the forklift position. Only White and Ellis were qualified to perform the forklift
position. Ellis, who had voluntarily resigned from the forklift job for a higher-paying job,
testified that he did not complain to Blake or anyone else about White operating the forklift and
that he did not request that he be returned to the position.
On October 10, 2007, White filed a charge with the Equal Employment Opportunity
Commission (EEOC) alleging sex discrimination and retaliation. She filed a second charge with
the EEOC on December 4, 2007, alleging retaliation. In her second EEOC charge she alleged
that Blake had placed her under surveillance and was checking on her daily activities. Her
second EEOC charge was mailed to Blake on December 8, 2007.
On December 11, 2007, White was working in her new position under the supervision of Atlas
foreman Percy Steele. At some point during the day when she he assigned her to work for the
day on another casting line in a building on the other side of the property, Steele instructed White
to ride in a truck to the other building with another foreman, James Key. Steele instructed
another worker, Greg Nelson, to ride with him in his vehicle. According to White, when she
approached Key he told her that she had to ride with Steele because Key wanted Nelson to ride
with him. Against Steeles order, Nelson rode away with Key. White testified that Steele
became very upset when she returned and told him that Nelson had ridden away with Key and
that she would have to ride with him. Contrary to White's testimony, Steele testified that White
refused to ride with Key, claiming that she had seniority over Nelson and insisting upon riding
with Steele. According to Steele, White had a bad attitude and this was not the first time she did
not follow his directions.
According to Steele, he called Blake to discuss the situation and Blake told him that based on
Steeles description of events, White had been insubordinate and should be suspended
immediately. On the afternoon of December 11, 2007, Steele informed White that she was
suspended. Although Steele had the authority to suspend White himself, Steele testified that
Blake made the decision to suspend White. Blake testified that Steele made the decision. White
testified that Steele told her at the time that Blake had instructed him to suspend her. In a letter
to the EEOC, Atlas stated that Blake made the decision, but Blake testified that this letter was
incorrect. Nelson received no discipline, although Steele acknowledged in deposition that
Nelson had disobeyed his direct order to ride with him in his vehicle.
White testified that Steele had told her at some point before her suspension that Blake considered
White a "troublemaker." Steele denied making this statement and testified instead that White
told him that Atlas was trying to "get rid" of her but he disagreed with her about this.
The decision to suspend White occurred seven days after White filed her second EEOC charge
and three days after the charge was mailed to Blake. The suspension took effect immediately
and was without pay. According to Atlas policy, the suspension without pay would
automatically become a termination if White did not file a grievance with her union appealing
the decision within fifteen days. White timely filed such a grievance and also filed another
EEOC charge on December 15, 2007, alleging retaliation.
While her grievance was pending, White was without a job and without income and she did not
know if or when she would be allowed to return to work. During this period, White sought
medical treatment for emotional distress and incurred medical expenses. The grievance
remained pending through the end of December and the first half of January 2008. After an

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Opening Statements and Closing Arguments

investigation and an internal hearing, the hearing officer, who was an Atlas manager, found that
White had not been insubordinate and that she should not have been suspended. After being
suspended without pay for thirty-seven days, White was reinstated to her standard foundry
position with full back pay on January 16, 2008.
Since returning to her position, there have no further incidents. White testified at deposition that
following her return to work, her co-workers have ignored and shunned her but that was not a
big problem for [her] since they werent friends to begin with. Whites co-workers testified at
deposition that they keep out of her way because, she runs to the H.R. Department if you even
look at her funny.
Atlas moved for summary judgment on Whites claim of sexual harassment and retaliation,
brought under Title VII of the Civil Rights Act of 1964. The Court ruled that there were
disputed issues of fact about whether the alleged sexual harassment was sufficiently severe or
pervasive to constitute a sexually hostile work environment and whether the Plaintiff, Ms. White,
subjectively found the workplace to be a hostile one. The Court also ruled that while Atlas acted
promptly after White reported the alleged sexual harassment, there were disputed issues of fact
about whether the Company took effective remedial action triggering application of the
Ellereth/Farragher affirmative defense.
With respect to the retaliation claim, the Court ruled that it was ultimately a jury question
whether the actions taken by Atlas would have been materially adverse to a reasonable
employee. Stated differently, the jury would have to decide whether Atlass actions were
harmful to the point that they could well dissuade a reasonable worker from making a charge of
discrimination.

26