Contents

1. Opening Statement ............................................................................................................................... 2

a. Description: ............................................................................................................................................ 2
b. Possible Scenarios in a trial: .................................................................................................................. 2
c. Preparation and Presentation: ................................................................................................................. 2
2. Closing Argument ................................................................................................................................ 4
a. Description: ............................................................................................................................................ 4
b. Possible Scenarios in a trial: .................................................................................................................. 4
c. Preparation and Presentation: ................................................................................................................. 4
1. Opening Statement
a. Description:
In this part of the trial, it is the burden of the attorneys on both sides to inform the Jury of the
nature and the facts of the case. Tactful attorneys use opening statements just like an exciting
preview of a movie which arouses the interest of the Jury and the Judge in order to keep them
attentive during the trial. To achieve this, attorneys are required to extract the most useful part
of the case material and form a straightforward theory of their own. Meanwhile, they also clearly
instruct the Jury about the Burden of Proof and the Elements of the case, which provides the Jury
members a set of practical standards to judge the evidence they are going to hear. But remember,
you have limited time in opening, so properly organizing your speech will be very important.

Time Limit: 5 minutes (during the opening, no objection may be raised)

b. Possible Scenarios in a trial:

P for Prosecution and D for Defense
Judge: Does the prosecution wish to make an opening statement?
P Attorney (Standing): Yes, your honor.
P Attorney begins the opening statement and sits down after he is finished.
Judge: Does the defense wish to make an opening statement?
D Attorney (Standing): Yes, your honor.
D Attorney begins the opening statement and sits down after he is finished.

c. Preparation and Presentation:

Begin with “may it please the court, the opposing counsel, members of the jury.”
Though having largely been abandoned in real trials, this formal beginning still serves as a reminder
to all participants in the court, to officially declare your proceeding to the opening of your side.
Thus, this tradition is kept throughout all high-school level mock trial competitions.

Have a theme/a theory.

In Direct Examinations, a party calls typically three witnesses to the stand, but the party can never
have them talk together. Therefore, in the opening statement, provide your way of associating
the evidence to be provided. Often, this association is known as your “case theory” and is placed
at the beginning of the opening in a rhetorical way.

For example, the plaintiff whose son died because the jail he stayed abused him and caused his
depression may use a theme: they broke the rules, they broke the standards, they broke apart a family.

Present an overview of the story.

You can’t put half the case packet into your opening statement because the Jury members will
be overwhelmed by excessive information. However, providing an abstract of the story on your
side is very helpful. It is clear, simple, easy to understand, and more importantly, it can support
your case theory from a practical level.

Emphasize your Burden of Proof.

In real trials, the party who makes the charges/complaints must meet certain “burden” to win the
case. This burden differs in criminal and civil cases.
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In a criminal case, the prosecution should prove their counts beyond a reasonable doubt,
which is the highest burden of proof in the U.S. legal system. And the defense in a criminal case
typically shoulders no burden of proof. To prove beyond a reasonable doubt means that there is no
alternative explanations, no inconsistencies of testimonies, no missing parts from the evidence
chain and nothing that generates a “reasonable doubt.”

However, in a civil case, the plaintiff only needs to prove their case by a preponderance of
evidence, which, in general, means “more than 50 percent.” Thus, if the plaintiff proves their
counts to be more likely than not likely, they win the case. And therefore, this puts greater
pressure on the defense.

For attorneys, it is important to instruct the Jury in their opening statements about the burden of
proof, because this is the “applicable rule” for Jury members to judge the case, without which, the
jury may base their verdict on temperament, the appearance of witnesses or anything irrational.
A good opening statement always explains this point in a thorough manner but comprehensible
to even lay people.

Explain the Elements.

Sometimes, Murder is a word too vague. It does not only mean killing, but there is a series of
standards that determine if it’s manslaughter or murder, first-degree or second-degree. The Jury
members usually don’t understand what it takes to prove the count of Murder or any other
charges. That’s why attorneys should point out the Elements in their case and thus invite the
Jury members to examine them carefully in the trial.

Introduce your witnesses.

In the opening, attorneys always introduce their witnesses by talking about who they are, how they
are related to the case, what they will be talking about, etc. Usually, this covers 1/4 to 1/3 of your
opening.

Attorneys use simple sentences here and don’t introduce too much information because without
the context of the real person testifying, the Jury quickly forgets most of the information.

An example may be: “Members of the Jury, today you are going to hear from Mr. Calief, the father
of the victim. He’s here to tell you what he saw when he visited his son in jail, who was increasingly
depressed, desperate and helpless. He will also tell you how the prison officers continuously
neglected his petitions for six months, chose to do nothing, and brutally disregarded his son’s
mental health.”

Have a conclusion.
This can be short in nature. You may summarize the story, your burden, and elements. After this,
at the very ending, you may conclude like: “through the trial, we will prove you beyond a
reasonable doubt that the defendant is guilty, and that is why my co- counsel Mr./Ms. XXX
will come before you at the end of the trial and ask for a guilty verdict (only for reference).”

Don’t argue against anything.

The opening statement is a Statement, not an argument like the closing. Therefore, it’s more about
explaining and presenting things because the court knows nothing yet about the case. If you try to argue
against the other side, this may not only distract the Jury members but also sometimes leave you

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 in embarrassment, because your opponents don’t always talk about things you think they will talk
about.

Opening can be pre-written.

Because this is the first part of the trial, and you don’t have to argue against each other, thus
opening statement can be 100% prepared beforehand. Take advantage of that, write your script
carefully, amend them and present accordingly. But this is not a recitation competition, so you
should not be reading from your script in trial, as otherwise, your points will be deducted. Act,
speech, and persuade. Referring to notes on cards is allowed to some level.

2. Closing Argument

a. Description:
In the Closing Argument, both the prosecution and the defense will provide a clear summary
of their testimonies and evidence in order to prove their case and rail at the weaknesses of their
opponents’ case. The content of the closing argument is restricted to the facts and evidence
already raised by the attorneys on both sides; no new facts or evidence are admissible during
closing argument.

The prosecution side will deliver its closing argument first and can choose whether to reserve
time from the total of 7 minutes for rebuttal. After the prosecution finishes its closing argument,
the defense side will proceed. Thereafter, if the prosecution has previously chosen to leave time
for rebuttal, the prosecution attorney will be permitted to rebut the points made in the defense’s
closing argument. The content of the rebuttal, however, is also strictly limited to what has been
presented and should not contain new facts or evidence.

Time Limit: 7 minutes

b. Possible Scenarios in a trial:
P for Prosecution/Plaintiff and D for Defense
Judge: Is the prosecution ready for a closing argument?
P Attorney: Yes, your honor, and the prosecution reserves all time remaining for rebuttal.
(The prosecution proceeds)
Judge: Thank you, attorney. Is the defense ready?
D Attorney: Yes, your honor.
(The defense proceeds)
Judge: Prosecution, rebuttal?
P Attorney: Yes, your honor. We would like to have a rebuttal. (The prosecution/plaintiff
proceeds with its rebuttal)
Judge: Thank you, counsels from both sides. The court is adjourned for today.

c. Preparation and Presentation:

Begin with “May it please the court, the opposing counsels, and members of the jury.”

Be sure to base your closing on things actually happened in the trial.

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Don’t include materials from the case packet not discussed in the trial, as this misleads the jury
and sometimes results in unfair advantages. And when you are referring to errors the opposing side
has made in the trial, make sure they did make the mistake and never fabricate an assertion.

Reemphasize the Burden and Elements:

Remember in the opening we provided jury members with thorough instructions on Burden of
Proof and the Elements. At that moment, we were hoping the jury would judge accordingly.
Therefore, in closing, you may remind the jury members of the essence of the case and in a brief
summary demonstrate that you have met the burden your side introduced.

Stylistic delivery is encouraged.

This is an argument where you can use more emotional language than the opening. Some accusations
are allowed and performance like “getting to the defendant, putting hands on the desk and
addressing him/her directly about the charges” are actually permitted. But don’t get to the
extreme, because staying logical remains the top priority to keep your persuasion credible.

Balance emphasis on both your side’s case and the other’s.

Don’t trade one with another because they all help the jury to understand why they should vote
in your favor. Centering the argument only around yourself makes you sound weaker in the
battle, while referring too little to your own witnesses also leaves your argument not well-
grounded.
Stay organized and list your points before you speak.
Because we are addressing “points” that happened throughout the whole trial in the closing, our
argument falls apart easily and have the jury lose tracking our thoughts. So, tie the points to some
large pictures. The most affordable at hand is to stick with the burden and counts, like in the
opening statement. About every single element, you raise what your side has proved what the
other side has failed to do so.