Chapter IX: Opening the Case

The jury is chosen, sworn, and sitting in the jury-box. The judge begins unfolding the papers of the case so that he may read the pleadings. The actual trial of issues is about to begin. The court attendant has taken the jurymen's hats and coats, another attendant has shown spectators to their seats and politely as possible suppressed the young law clerk who does not see why he could not go up to the judge and ask him what became of the case of Jones against Allen that was on the calendar last Thursday and should have been on to-day, or ask if "His Honor decided that motion in the case of Meyer against Cohen." The doors of the court-room are closed. The attendants go about looking for whisperers and saying, "Cease all conversation." The lady client is interrupted in telling her lawyer that she thinks the judge has a kind face, but that she does not like the looks of the man in uniform standing next to him, or vice versa. Gradually the court-room quiets and a spirit of expectancy prevails.

But the actual taking of evidence and the hearing of testimony is not yet. Now comes what is known as the opening. So in the tournament, the armored knights entered with a blast of trumpets, their names and titles having been called, and it was customary for them to ride once or twice around the lists to let the judges see their armor, their weapons, their mounts, their trappings and accoutrements, or they might even try a tilt or two at one another. The introductory speech of counsel is somewhat in the nature of a parade or a preliminary skirmish. It may also be compared to the prologue spoken before the beginning of a drama. The speech with the vivid brevity, so common in legal terminology, is called the opening.

The object is to show to the judge and jury what the drama is about. The secondary object is to arouse interest. Immediately after the opening comes the evidence, which is usually bald, fragmentary, and disconnected. It might be impossible for the jury to understand the relation of one bit of testimony to another. Take a simple case such as a suit for the failure to pay a bill at a dry-goods store. One witness testifies to the sale, another to the packing of the goods, another to the delivery; a receipt is introduced in evidence. Each one would not tell a connected story. The opening outlines the facts and makes the evidence understandable. It also has the function of an appetizer. This may seem a trifle unnecessary. But let us take an illustration. A whole case may depend upon a deed. If the paper itself were put in and read to the jury without explanation they would be bored. One witness is to tell this part of the story, another that, and the missing link of the chain may be supplied by the deed. The jury are not to be mystified before their interest is aroused. Are not the lives, property, or reputations of particular men at stake? The ordinary man and even more the average juryman has far too strong a sense of responsibility to be bored if truly he can understand what it is all about. The function of the opening is to tell him.

As the counsel begins opening every juryman leans forward and watches him intently. They feel their responsibility as officers of justice and there have been few complaints of their falling asleep during the trial. The jurymen have come to know the names of the opposing lawyers and the faces of the clients, if they have been pointed out during the examination of the jurors, but nothing more. Are the jury to hear a story of bitter resentment or of passion and crime, or a calm demand for the payment of a debt? The opening will show.

Did the plaintiff during years of effort build up a business and take the defendant in as a partner only to be defrauded by him? Plaintiff's attorney will indicate the years of effort briefly, but impressively, before sketching the manner in which the defendant stole from him by fraud the fruits of his labor. When the plaintiff then testifies that in 1890 he opened a small store in Fourteenth Street, moved in 1896 to Twenty-third Street and thence in 1916 to an up-town street off the Avenue, the dates will sink into the jurors' minds and they will portray for themselves the twenty-six years of painstaking effort. No eloquence then could rival the effect of the witness's slow, bare recital of his progress. Yet without counsel's prologue what could be more dull than the naming of street numbers and dates?

The matter of the testimony may be interesting, but unless the witness has a rare gift of expression and a sense of the picturesque, the way in which it will be given may be dull and plain. But at this point the little keen-faced lawyer for the other side jumps up and interrupts: "I object, your Honor; what difference does it make where he lived in 1890, whether on Fifth Avenue or Mulberry Bend? What we want to know is what he is suing for now." And the court will probably rule with him and keep the plaintiff down to more relevant facts.

Some of the important answers may be yes or no. Counsel in such a case supplies the color and gives an appearance of life to what is actually alive enough, but which alone would seem dry. Even if so famous a character of fiction as "Becky Sharp" came into court and only looked her part with what intense interest would we not hang on her testimony, though it consisted of no more than "Yes, I did"; "I never saw him before." We should be fascinated by this bald statement because Thackeray had interested us so enormously in the lady. The air would be electrified by the force of her personality. Without a previous introduction, however, we might be so lacking in discernment as to find her, in appearance and voice, no more unusual than the average witness who goes on the stand.

Thackeray not only created Becky Sharp; he also created our interest in her. Similarly the lawyer may create an interest in his witnesses, some of whom may be personally every bit as extraordinary as any character in a novel. If a witness be actually commonplace, there is all the more need for making him vividly human; if he be so colorless that nothing could be made of him personally, he may acquire interest through the class to which he belongs, for classes have a personable color more deep than the almost colorless individual.

To induce the jury to visualize the story and the characters, the highest literary gift may be brought into play. The lawyer is limited as to time and the description he may employ. He has, however, his voice and expression: an actor's tools. But again the rule of simplicity and naturalness should apply.

The opening speech is a prologue and it does not argue. Counsel will not be permitted to argue his case in his opening, for his opponent will object and the Court will often say, warningly, "Counselor, you are summing up." This limitation, however, is in reality an advantage, not merely because it applies to both sides, but for the reason that no lawyer with any sense of dramatic values would anticipate his _dénouement_. Argument is apt to be chilling unless the decision sought for can be discerned, however dimly, without it. And how are the jury to frame their decision before the evidence has been presented? The jury should be interested in Miss Becky Sharp and prepared to understand her testimony, but, before they have heard her story from witnesses who know, they will not be favorably impressed by urgings that she was wronged or badly treated.

There is usually leniency in regard to the length of the opening, because it is well recognized that few witnesses can tell a connected story, or tell it well. From the old French story of the lawyer who began _avant le création du monde_, and the judge who asked him to pass on _áu deluge_, down to the usual modern method of nagging the lawyer into stating only the skeleton of the action, there are various degrees of eloquence, varying naturally according to the importance of the case.

A wonderful thing the prologue may be in its restraint and picturesque vividness, and, not least, in its clarity. Confused business dealings may be described so that important sums, figures, and dates will be remembered and recognized when they appear again in the evidence. Counsel, for the time, occupies the center of the stage; his course is in his hands to make or mar. He reaches the end of his speech, bows, and the first witness is called.

Before the testimony begins the judge looks at the defendant's counsel and asks him whether he wishes to state his defense. There is a different practice in this regard in different courts. Some insist that the defendant ought to tell at once what his side is about, others that the defendant should wait until the plaintiff is through all his evidence and has rested; then at the beginning of the defendant's case the defendant's lawyer opens and makes his introduction.

The difference between these two manners of proceeding is so essential that it may be explained. On the one hand the lawyer feels that he should not be compelled to give away what he is going to do, how he proposes to meet the attack, whether he will lie in ambush and snipe the plaintiff as he comes on or intrench behind a rampart and meet him with the full force of his battery of evidence. He may be planning to make a sudden sally after the plaintiff has shot his arrows and exhausted all his ammunition. The lawyer feels if he tells his plan of campaign he loses the advantage of generalship.

Suppose a simple case: The plaintiff is suing on a long account for a bill of goods which will take a long time to prove. The defendant has a receipt in full showing payment. On the theory that the defendant need not disclose his evidence in the opening, he may sit still with the receipt up his sleeve, let the plaintiff open and call his witness, the evidence may drag itself along with the usual motions and objections, and after the plaintiff rests the defendant opens to the jury.

"Gentlemen," he says, "this is a simple case. The plaintiff claims he sold the goods and the defendant did not pay for them. I propose to show you that the plaintiff was not telling the truth. I made him prove to you that he sold every item in the bill because I wanted to show you how untruthful he is. My client, the defendant, not only paid for the goods but I can show the receipt in full signed by the plaintiff."

To the layman this is absurd. The defendant should have shown the receipt in the first place and all the waste time of the trial would have been saved. "No," says the technical lawyer, "if I had disclosed my evidence before, the plaintiff would have framed his evidence to meet the situation." The modern view is otherwise. In France, for instance, no paper can be offered in evidence on a trial unless it has been shown to the attorney for the other side beforehand and everyone has had a chance to examine it. Indeed, this exhibition of original documents is conducted in so open and honest a fashion that it is customary to send all the original papers to the other side without even taking a receipt or retaining a copy and in the whole history of the French bar the loss of such a paper has never been known.

It seems more practical and sensible that the lawyers for the defendant should be required to state the nature and detail the facts of his defense. It is the difference between the old idea of trial and the new. The first was an imitation battle, the new idea is not that it is so much a struggle as an investigation of the facts. If the plaintiff wants to meet the receipt he can make a counter-attack or explanation in the rebuttal and explain how he came to sign the receipt in full. The judge and the jury feel the necessary element of the trial is to arrive at the facts and that the planning and methods of charge and counter-charge are not so significant. The old conception of the trial as a battle is disappearing.

The opening by the defendant at the beginning directly after the plaintiff has finished his opening and before a witness is called, makes the trial simpler to the minds of the jurymen who are to decide the facts. The pleadings are supposed to define and state the issues but as they are usually technical they have become not sufficiently pliable. The defendant by his answer denies merely the facts stated in the plaintiff's complaint in the paragraphs numbered six, eight, and ten. The defendant on his opening should be compelled to make plain to the minds of the jury what he intends to show. He should take the position of a plain business man who says, These foolish people imagine they have a claim against me. They have nothing of the kind.

The plaintiff says that he understood the contract to be so and so and that acting on that assumption both parties did certain things and know the defendant with evil intent and wrongfully forgetting the duty he owes to keep his word refuses to live up to his agreement, therefore, "Gentlemen, we have been compelled to come to court and bring this action and we shall show you gentlemen facts from which you must find a verdict in our favor." The defendant then arises and says:

"Gentlemen, we are going to show a letter that contradicts all this." Oratory has little place in the opening of the defendant.

The judge has been, during the two openings, attempting to keep the two counsels down to the facts which he thinks may be proved and from wandering too far afield. As quickly as they are both through he says, "Call your first witness," and with trepidation the witness takes the stand.