There is a well known old story of a barrister specializing in fraud cases commenting on the importance of a clear and persuasive opening: if he could get the jury by the end of his Opening, they were his for the rest of the case. Certainly it is a great thrill as an advocate in such cases to see the dawn of recognition on the faces of a jury as they suddenly appreciate the real heart of a fraud case. But the story has a wider value.
The essence of all good advocacy is absolute clarity. Align that to an accurate chronology of the relevant facts and you have the blueprint for a good opening in all proceedings where you, the advocate have to go first and tell the tale. So here is my working document for a good Opening.
1. Prepare an essential chronology as you read the papers. A useful tip is to create a table in Word, dictate into it via Dragon and press the Sort by Date button.
2. Think of a sober, arresting, accurate opening sentence.
3. Then put the essence of your case in no more than two tight paragraphs.
4. Expand your story chronologically. Within ten minutes, introduce your documentary and photographic bundles, where you have them.
5. Remember to have prepared the photographs in an order so that they help to tell part of the story. For example, start with a picture of the outside of a building where a crime has been committed and take the jury inside the house to illustrate the relevant rooms in the approximate order in which the crime has been committed inside. Then leave the house to trace chronologically where the offender is said to have gone. Identify what is relevant in the police station after arrest: a picture of any weapons used and then any marks on the suspect’s body. Make sure you include a photo of the suspect in the police station, ideally in the clothes being worn on arrest.
6. Have a good sketch plan in the documentary bundle of the inside of that house and another of the relevant roads in the area of the crime. That is not necessarily an extract from an OS map.
7. Make sure you outline enough of the Interviews of the Defendant to capture fairly his or her case. It is a bad mistake to underplay or ridicule in advance what a defendant is going to say. It will come back to haunt you. Above all, you will have failed the first rule of a good prosecutor: be firm but fair.
8. Always briefly refer to the burden and standard of proof. Keep subsequent legal observation very brief – eg in self defence. Say no more than is absolutely necessary about the Law. There is authority now limiting your explanations of law in opening.
9. Finish firmly but not over the top.
So much for content. What about presentation and style?
Obviously clarity remains the paramount quality – I assume absolute accuracy in your favour. Well, remember you are telling a story and you need to sound interesting. Turgid over-legalistic language is to be avoided like the plague. Humour is dangerous, but a little self – deprecation may lighten matters occasionally. But in some obvious cases do not even attempt that.
I am accused sometimes of theatricality and it is probably too late to change. But do not discount the power of a word picture that keeps the jury absolutely attentive. That does involve changes of pace, light and shade, proper pauses and an inner desire to hold their attention. An occasional look towards the dock may be just as effective as a trenchant comment. The jury will follow your eyes.
Lastly, as with all good advocacy, be yourself. Juries eventually see through any attempt to make histrionic bricks without straw and prosecutors are not there to pretend otherwise. Good luck!
Nigel Pascoe QC