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Hensler, Elspeth --- "Opening and closing statements" [2015] PrecedentAULA 5; (2015) 126 Precedent 14

  • SOME GENERAL OBSERVATIONS ABOUT OPENING AND CLOSING STATEMENTS
  • FRAMING EFFECTIVE WRITTEN SUBMISSIONS
  • ORAL ADVOCACY
  • OPENING STATEMENTS
  • CLOSING STATEMENTS

  • OPENING AND CLOSING STATEMENTS

    By Elspeth Hensler

    The best opening and closing statements will not cure the faults inherent in the relevant evidence, or other steps (including pleadings and correspondence) that precede that evidence. Every communication, whether oral, by letter or by pleading should be approached as an opportunity to advocate. Opening and closing statements are just two of the final steps in that process of advocacy. This article focuses on making persuasive oral and written statements to a court about evidence and legal arguments.

    SOME GENERAL OBSERVATIONS ABOUT OPENING AND CLOSING STATEMENTS

    Whether preparing to make an opening or closing statement, the advocate’s aim should be to make a clear and simple presentation to the court and to tell a story that is as easy as possible for the court to follow. These statements should be made by the advocate as submissions or by contending for propositions: the advocate’s own thoughts or beliefs are largely irrelevant[1] to this exercise.[2] This is so whether the advocate is making submissions about the evidence or the law.

    In preparing to open or close, the advocate should:

    (a) prepare alternative statements (often in spite of their client’s lack of instructions to do so):

    (i) at least once on the assumption that the presentation of their client’s case goes to plan and is not effectively attacked;
    (ii) at least once on the basis that witnesses forget their evidence or change their evidence (identifying which evidence is crucial and how it might be adduced if a witness ‘freezes’ or becomes otherwise unhelpful), and all weaknesses in their client’s case are exposed (identifying what those weaknesses might be and how they might be answered); and
    (iii) at least once, drawing on the preparations above, for the most likely way that the matter will proceed;

    (b) know and understand their case theory[3] so that they may communicate it clearly (and bravely where necessary – being willing to hold their ground);
    (c) consider and be aware of their audience (whether that audience is a jury or a magistrate or judge), putting themselves in the audience’s shoes and anticipating what that audience may want or need to hear about;
    (d) be aware of and use their own style; and
    (e) be ethical and respectful – observing their duties to the court and to others involved in the Court process.


    The importance of being respectful and courteous is mentioned a number of times in this article. It is not uncommon for advocates to make disrespectful remarks about other parties and witnesses and lawyers for other parties. Sometimes these remarks are made at the request of an advocate’s client, or to reassure the advocate’s client that the advocate is not friendly or ‘soft’ with other party’s lawyers.

    The lawyers for other parties are opponents, not enemies. An advocate in their statements to the court may legitimately attack the argument advanced by other parties. It is unhelpful and improper to make a personal attack on another party’s lawyers. Always proceed with courtesy.[4]

    FRAMING EFFECTIVE WRITTEN SUBMISSIONS

    Often the first statements prepared are written submissions. These should be prepared mindful of the ethical obligations of lawyers as officers of the court:

    (a) to ensure that they are not a mere mouthpiece for their clients;
    (b) to confine a dispute to the issues of importance that will determine the outcome in a case;
    (c) to advance a case for which there is a proper foundation;
    (d) to refrain from advancing a case for a collateral purpose; and
    (e) to provide disclosure of relevant material.

    Consistent with the advocate’s usual duties, written submissions and other forms of written advocacy must not mislead the court. The submissions must be a result of a considered review of the facts and the law and an analysis of the cases (including those cases that are contrary to the advocate’s client’s case[5]).

    At risk of stating the obvious, written advocacy aims to persuade. It will do this most effectively when it is clear and informative.

    Clarity and persuasiveness are determined by a document’s presentation, as well as a document’s content. The Rules and Practice Directions of each court set out how documents should be presented[6] and care should be taken to make sure that documents filed at court comply with the relevant Rules and Practice Directions.

    As to content, keep the language, grammar and structure simple. Convoluted submissions that cannot be easily understood can come across as weak.[7] Following plain English guidelines will help you to avoid convoluted sentence structures and unnecessary wordiness and technical jargon which may obscure your meaning.

    When drafting written statements, consider your audience: what can you reasonably expect the court to know? If the court is a specialist tribunal, then you can reasonably assume that it will have some expertise in the relevant specialist area of law or industry. If the court is not a specialist tribunal, your submissions will need to include more detailed explanations about the law, or the relevant industry context. Whether or not it is a specialist tribunal, the court (most likely) will not be as familiar with the facts as you, and your submissions should make it easy for the court to identify and understand the relevant facts.

    Considering your audience, and putting yourself in the court’s position, will help you to concentrate on what submissions will persuade the court to find in your client’s favour. Having identified which submissions are likely to be most persuasive, then set them out proposition by proposition, with each proposition being a step that leads to the finding you want the court to make. Often this can be done within a structure as follows:[8]

    (a) Start with a short summary of what the argument is about;
    (b) State the issues;
    (c) State the legal and factual propositions, including those that meet arguments that might be made against you;[9] and
    (d) Conclude and identify the orders sought.


    Where case law is relied on to support legal propositions, refer only to the leading case (unless other cases are desirable by way of illustration or there is a conflict in the case law that needs to be explained). The passage of any authority relied on should be identified, by page or paragraph number. A list of authorities should be attached to the written submissions with each authority that the advocate may read from marked with an asterisk.

    ORAL ADVOCACY

    The principles governing the preparation of written submissions should also apply to preparing to make opening and closing statements. In addition, the advocate should:

    (a) be prepared to be nervous and have strategies in place to manage those nerves;
    (b) be prepared to answer questions and have a conversation with the court;
    (c) actively listen to what is occurring in court, including any questions raised or observations made; and
    (d) make eye contact and speak up.


    The oral opening and closing statements are an opportunity to concentrate on your best points: the points most likely to persuade the court in your client’s favour. It is also the opportunity to make sure that any complex points have been communicated to the court, although you may prefer not to orally address these propositions: where propositions are complex, it is sometimes best to leave them for written submissions where you have time to carefully consider how that proposition can best be put.

    As to having a conversation with the court, it is likely that the court will seek to engage with you and ask questions during opening and closing statements. If a judge starts speaking, the advocate should stop speaking immediately and listen to what the judge has to say. Answer any questions directly and succinctly. If you intend to discuss the issue in more detail later in your oral statement, say so.

    The advocate may agree or disagree with what the judge has said, but disagreeing with a judge must be done respectfully, focusing on the proposition that the advocate disagrees with, rather than the judge being wrong.[10] For example, if the judge has put a proposition about the evidence which the advocate thinks is wrong, then the advocate should give the judge a correct description of the evidence, or refer the judge to the transcript where the evidence appears.

    If a new point emerges in the course of argument, written submissions may be departed from (although there may be cost and delay consequences in doing so). Even if no new point emerges in the course of argument, be prepared to depart from your planned oral statement so that you can engage the court.

    Be very hesitant to interrupt another advocate’s statement to the court. Sometimes it has to be done but, if you have a right of reply, or you can seek leave to reply, that is likely to be the better time to respond to another advocate’s statements.[11]

    OPENING STATEMENTS

    A useful structure[12] for written or oral opening statement is to:

    (a) start with a short statement of two or three sentences setting out the nature of the case;
    (b) outline who the parties are, the main events and the participants in those events – this may take the form of, or be augmented by, a chronology;
    (c) explain the pleadings;
    (d) list the issues;
    (e) briefly outline the main legal propositions, and identify the main authorities and statutes;
    (f) give a short analysis of the case;
    (g) identify the witnesses to be called and briefly outline the evidence that they will give; and
    (h) attend to any practical matters such as how documents are to be tendered, or whether any witness has to be interposed or give evidence by video link.


    Obviously, elements of this structure can be dropped or rearranged as appropriate, but it is a useful starting point. In particular, written statements filed on behalf of a defendant or respondent should not need to address all of these elements.

    While the list of elements above is long, each element requires only a short statement or a brief outline. The focus of the opening statement should be on the key factual or legal disputes on which the case will turn and the authorities central to the case.

    CLOSING STATEMENTS

    To help prepare for closing, during the trial, at the end of each day (or during any break if there is time), identify:

    (a) the evidence for and against your client’s case;
    (b) how to minimise the impact of what is against your client’s case;
    (c) how to maximise the impact of what is helpful to your client’s case.

    This will require a consideration of:

    (a) the oral evidence adduced for your client;
    (b) the oral evidence adduced by other parties;
    (c) exhibits (documentary and otherwise) – to the extent that they really are relevant;
    (d) questions and comments from the court – these can be a very useful indication of what is on the court’s mind or what is troubling the court. These indications from the court enable the advocate to target their closing statement accordingly;
    (e) statements by other advocates (particularly any concessions or any statements that suggest that another party has had to change its position – these should be noted so that closing statements can inform the court what is no longer in issue and what is unclear, incoherent, or perhaps recently invented on the part of other parties);
    (f) pleadings and particulars – in case it is necessary to confine other parties to their case;
    (g) answers to interrogatories; and
    (h) common sense (but only if it is supported by the evidence).


    A similar structure to that described for opening statements can be adapted for closing statements except that, for each cause of action or positive defence, the emphasis turns to:

    (a) what findings of fact should be made, with reference to transcript and exhibits;
    (b) any issues of credibility that need to be resolved;
    (c) the relevant principles of law (with supporting authorities) and how they apply to the established facts; and
    (d) the orders sought.


    The closing statement is the opportunity to distil the case and draw everything back to the case theory outlined in the opening. When preparing closing statements, it is useful to check whether the closing statement:

    (a) accounts for or explains all of the undeniable facts – even at a detailed level;
    (b) explains away, in a plausible manner, as many facts and laws as possible that may be detrimental to the client’s case;
    (c) explains why people acted as they did;
    (d) sets out the relevant legal propositions, with the proper authority for those propositions, and provides a useful analysis of the applicable laws; and
    (e) is consistent with common sense and plausible.


    Although it is important that the closing statement works at both a general and a detailed level, it should not address every piece of evidence. It should identify those matters of fact or law that have significance: that is, those that might affect the outcome of the case. So, the closing statement should:

    (a) introduce each disputed issue, giving the background, stating why the issue is important;[13]
    (b) state the best points first and last – those that prove your client’s case as well as those that refute other case theories;
    (c) stick to the evidence – if a witness didn’t say quite what they were expected to say, the closing statement must deal with the evidence as given: it will not be persuasive to make a closing statement based on what your client may have wished the evidence to be;
    (d) explain what the evidence means – to use a simple example: if the relevant events occurred in Melbourne but the evidence is that an alleged participant in the events was in Perth, then state that, given the evidence, the event cannot have occurred, or the alleged participant could not have been a participant, according to your case theory. Don’t leave the court to infer what the significance of the evidence is unguided;
    (e) face any weaknesses in the case squarely and minimise the impact of any deficiencies by, for example, explaining[14] that:

    (i) the evidence said to be against your client’s case is irrelevant; or
    (ii) the evidence against your client’s case is not credible; or
    (iii) the evidence relied on to support a case theory contrary to yours is also consistent with your case theory; or
    (iv) an issue raised against your client’s case hasn’t been established to the required burden of proof; or
    (v) the cases that contradict or oppose your case theory don’t apply or should be distinguished.

    (f) say what the consequence is, in law, of the evidence; or to put it another way, state the relevant law and how it applied to the facts;
    (g) tie every paragraph to what you want to achieve – state your conclusions.


    This is the last chance to persuade the court and to deal with the disputed issues. If changes need to be made to pleadings or written chronologies before the court, this is the time to set out those changes. But the emphasis should be on setting out a strong summary of the argument and making clear the findings of fact and law that you say the court should make, and the action that you say the court should take.

    Elspeth Hensler is a barrister practising in commercial litigation. She is Vice President of Australian Women Lawyers and a member of the WA Bar Council. In 2014, she was awarded the Attorney-General’s Community Service Law Award and was jointly awarded the WA Bar Association Distinguished Service Award. She is at Francis Burt Chambers, Perth. PHONE (08) 9220 0487 EMAIL ehensler@francisburt.com.au.


    [1] The advocate’s own thoughts or beliefs may usefully test the credibility of a proposition that the advocate proposes to advance, but the relevance of their own thoughts or beliefs should be exhausted by the time they make their opening or closing statements to the court.

    [2] The Hon Justice McKechnie, ‘Forensic advocacy: a survival guide to basics in court etiquette’, in Brief, vol. 29, no. 2 (March 2002), pp14-16.

    [3] ‘Case theory’ is used in this paper to describe the organising principles used by an advocate to give structure to the jumble of facts and laws presented to the advocate – it is the simple theory developed in each case to simply explain what happened and why. It should:

    (a) account for or explain all of the undeniable facts – even at a detailed level;

    (b) explain and neutralise, in a plausible manner, unfavourable facts and laws;

    (c) explain why people acted as they did;

    (d) be supported by the details;

    (e) have a solid basis in law; and

    (f) be consistent with common sense and plausible.

    [4] The Hon Justice McKechnie, above note 2, pp14-16.

    [5] SP Estcourt, ‘Ethical Advocacy’, 19 February 2013: available at http://derwentandtamarchambers.com/wp-content/uploads/2013/02/ETHICAL-ADVOCACY.pdf.

    [6] See, for example, Federal Court Practice Notes CM 2 (List of Authorities, Citation of Cases and Legislation for Proceedings Generally) issued in 2012, GEN 2 (Documents) issued in 2014, and GEN 3 (Use of Court Forms) issued in 2014. The Federal Court’s Practice Notes are available from its website: http://www.fedcourt.gov.au/law-and-practice/practice-documents/practice-notes

    [7] M Corboy SC, ‘The Use and Abuse of Submissions – a Defendant/Respondent’s Perspective’, paper presented to the Law Society of WA, 19 October 2005, para [15(a)].

    [8] This general structure has been taken from [3.9] – [3.19] of J Curthoys & C Kendall, Advocacy: an introduction (LexisNexis Butterworths, Australia, 2006).

    [9] In appellate work, this is sometime referred to as the LOPP/FLOPP analysis – the Losing Party’s Position and the Flaw in the Losing Party’s Position: see pp44-6 of Professor James C Raymond, ‘The Architecture of Argument’, The Judicial Review: Journal of the Judicial Commission of New South Wales, vol. 7 (September 2004), pp39-56.

    [10] The Hon Justice McKechnie, above note 2, pp14-16.

    [11] Ibid.

    [12] This structure is taken from CL Zelestis QC, ‘Trial Advocacy’, a presentation dated 11 October 2002. The paper concerned oral advocacy, but the structure works well for written opening statements too.

    [13] Depending on each advocate’s personal style, the advocate may state their conclusion on the issue by way of introducing it.

    [14] The explanations are very important – you need to give the court a reason to choose to accept your case theory. To do this, you need to give the court a reason to choose to accept the elements of your case theory over those put against your client.


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