Defense Opening After Prosecution Case

[TheCommunicator]

Hey everyone,

I haven't been doing this for very long, but I was wondering whether there is a rule saying that the defense can or can't give it's opening statement after the prosecution witnesses.

A judge in a round(regionals) asked if the other team wanted to wait to give their opening, and I just wanted to know if they even had a choice.

Thanks!

[Golden Skull]

My guess is no but I can't back that up.

[Spitfire]

its been done before.

[Tom]

If you wanna get really crazy, some jurisdictions (like Texas if you can convince the judge) allow you to do interim arguments.  Basically, you get to stand in front of the jury and argue your case every few witnesses or so.  The defense gets to respond, and the plaintiff gets a short rebuttal argument.

[mockboxoflove]

I just read through the rules (yea that bored) and I couldn't find any rule stating you can't wait until after prosecution case in chief (I still could be wrong because really all I did was go to Ch8).  Although, why would someone want to wait until after pros case to present their opening arguments?  I understand why they would in the real world, but mock is so much about establishing yourself early on in a round to have the best impression on the judge.  That is why so many people put so much weight on opening arguments to set that immediate first impression on the judge.

I do like the interim arguments concept.  It is like a DVD commentary that the jury can hear.  I want to see this.  (I am probably making this into something cooler than it actually is, but oh well).

[Tom]

I do like the interim arguments concept.  It is like a DVD commentary that the jury can hear.  I want to see this.  (I am probably making this into something cooler than it actually is, but oh well).

No, it really was like DVD commentary.  At Baylor Law, we had this technique used against us by a couple crafty plaintiff's lawyers in our practice court program.  Basically, they gave an opening statement saying that their case was gonna be made in three parts.  The first part was about X (I forget now).  The second part about Y, and the third part about Z.  Then after like five or six witnesses, they did interim arguments: "members of the jury, you just saw the first part.  At the end of the day, we're gonna have to prove X, Y, and Z.  The first part of this case was all about X.  We proved X because you saw from witnesses 1 that blah blah blah.  ... Now, let me preview the second part of our case for you.  It's gonna be all about Y. Blah blah blah."  Then, five or six witnesses later, another interim argument, rinse and repeat.

[Spitfire]

Although, why would someone want to wait until after pros case to present their opening arguments?  I understand why they would in the real world, but mock is so much about establishing yourself early on in a round to have the best impression on the judge.  That is why so many people put so much weight on opening arguments to set that immediate first impression on the judge.

The flip side of that would be that many judges dont want to give a 10 on openings right out of the gate. They want to leave room for variation. Holding your defense opening might increase your score if you are a good opener.
 
but who know... depends on the judges, as do most strategies in mock trial...

[mocksluzer]

I could've sworn that there was a rule somewhere prohibiting this practice. Perhaps that's just because my coach said it one time five years ago and I never checked. I really thought there was though...

However, if GS and Lucid get on here and don't say they know of one, I'm doubtful. Hmm...

[RuHurt]

I just went through the entire AMTA rulebook, and didn't see anything addressing the order of arguments...

[Tom]

However, if GS and Lucid get on here and don't say they know of one, I'm doubtful. Hmm...

I too vaguely remember a rule, but I could be thinking of either high school or law school mock trial.

[DWdidit]

I know a team did this this year at the LA regional, and when I was talking to their captain, he said that judges were occasionally confused during their crosses of the prosecution's witnesses, just because it makes less sense to be asking, say, Hunter Baxamusa about xenon lights when you don't yet know that the defense is claiming that Jackie Owens' car never had xenon lights.

However, he/their team thought that it made their opening much stronger. They got to be like, hey you heard from all of the witnesses the prosecution thought they needed to prove their case and that's not enough for BARD, and now we'll call three witnesses to further rip holes in their case. I understand that mentality-- why pass up second chance to tell the jury how many problems the prosecution's case has? And because some evidence had already been presented, they could be a little bit more argumentative.

He also felt that it helped judges understand their witnesses better, since how they connected to the case was still fresh in their minds.

(Jonathan, if you're lurking, correct me if I'm mis-representing your decision )

[mocksluzer]

Just glanced through all the AMTA materials. Couldn't find a rule that could even be interpreted to mandate both openings at the beginning of the trial. How could I have missed this through 4 years of MT?!

[Quotequeen]

I could've sworn that there was a rule somewhere prohibiting this practice. Perhaps that's just because my coach said it one time five years ago and I never checked. I really thought there was though...

It's possible that there was under some old incarnation of the rules before everything got melded into one rule book?  I have a vague recollection of this too, but maybe we're all crazy.

[MiaWUCU]

I don't know if it is a rule per se, but when I do Judges' Meetings I always inform the judges that the trial proceeds in the order that the ballot requests scores of them.  E.g., opening, move to the right, opening.  Witness one, move to the right, cross of witness one.
 
In other words, proceed at your own peril if you want the judges to SCORE AS THEY GO!!!! as the power point demands but you want them to go back and fill in the first defense blank after the next three.  Seems silly to me and also unrealistic, at least in NYC.
 
Note that in NYC, where many defense attorneys choose not to open, I also advise our local attorneys that this is not an option in Midlands.  Your local practice may differ.

[JanTheJanitor]

Every judges meeting I've attended has instructed us not to let this happen

[JACGW]

It's possible that there was under some old incarnation of the rules before everything got melded into one rule book?  I have a vague recollection of this too, but maybe we're all crazy.

We cannot all be that crazy, and I have the same vague recollection of the same rule. I'll try to find the old rules to see if I can find out from where we got this idea.

[MizzouMock]

I just looked...it was not in the most recent old rulebook (08-09).  Whether it was in an earlier, or much earlier version...??  Not sure.

[MChong37]

Guess I have that same vague recollection that some other members have as well... but I can't remember when it was or where it was I read it.


I can certainly see strategic reasons for doing so though.

[JACGW]

"Victory is mine, victory is mine, great day in the morning evening people, victory is mine."
I found it! I knew we couldn't all be crazy.

Before Mr. Nelmark moved the Board to create the "AMTA Rulebook," AMTA had nine separate documents on "Rules and Policies." One document was titled Appendix A: Procedures, wherein AMTA listed the typical procedures in a Midlands Courtroom. That's where I found the "Rule" that many of the veterans on here had vaguely recalled.

The following procedural appendix is included as a help in training teams for competition. Mock trials are not scripted, so the material in quotation marks should be considered suggestive rather than mandatory. Items in italics are mandatory as they are abstracted from the rules.

I. Attorneys may use notes at any time during the round. However, they are encouraged to give their opening statements without notes and to minimize the use of notes at other times. During the questioning of witnesses, attorneys may confer with co-counsel but the time taken to do so counts against their allotment.

II.  Witnesses may NEVER use notes. AMTA cases are chosen so as to eliminate gender as an issue in the selection of students to play the part of witnesses. All witness statements are to be treated as sworn, signed statements. There is normally a passage of time between a statement being given and an actual trial taking place.  However, for AMTA competition, it is assumed that no material changes have taken place since the signing of the witnesses’ statements.

III. Description of a Trial:
Opening Statements: Before beginning, the attorney may state “May it please the Court” and wait for an affirmation from the Court.  After introducing him/herself and colleagues, the plaintiff’s/prosecution’s attorney summarizes the evidence that will be presented to prove the case.

The defendant’s attorney may not reserve the opening statement, but must give it immediately following the opening statement from the other side and an introduction of colleagues and self.[Emphases added by me.]

I've searched all the other rules and do not find any other meaningful reference to the Defense opening. So I think this is it. But maybe the Board should add something to the Rulebook about this?


I'll go back drinking from the keg of glory and waiting for the finest muffins and bagels in all the land.[/end west-wing references]

[TheCommunicator]

Cool, thanks for the info

[Quotequeen]

How odd for it to use the word "must" and yet have no other rule on point?

(+karma for West Wing references)

[MiaWUCU]

Opening Statements: Before beginning, the attorney may state “May it please the Court” and wait for an affirmation from the Court.  After introducing him/herself and colleagues, the plaintiff’s/prosecution’s attorney summarizes the evidence that will be presented to prove the case.

You know you're an old-timer when you remember everyone bizarrely and unnaturally introducing themselves and colleagues about 1 minute into the opening.  I'm glad there was a culture change on that practice.

[Bovice]

You know you're an old-timer when you remember everyone bizarrely and unnaturally introducing themselves and colleagues about 1 minute into the opening.  I'm glad there was a culture change on that practice.

It makes more sense to introduce yourselves in opening because the jury isn't present during pretrial. Our team has tried several times to make that point apparent (in an effort to make the opposing team appear ignorant) but thus far the point hasn't come across.

Although the whole concept of introducing oneself at all in odd because the jury would've already met you in jury selection.

[Nur Rauch]

It makes more sense to introduce yourselves in opening because the jury isn't present during pretrial. Our team has tried several times to make that point apparent (in an effort to make the opposing team appear ignorant) but thus far the point hasn't come across.

Although the whole concept of introducing oneself at all in odd because the jury would've already met you in jury selection.

Well, right. I used to be a fan of introductions during openings, but I felt it was cheesy. It's especially comical during opening statements when the other two co-counsel stand, button their suit coats, and nod to the judge's as the opener names them. You're not there to brag to the judges about how awesome you are. When you introduce yourselves, there's a reason: so the judge knows who is who on their madly confusing comments sheet. It's really that simple, and it can be done simply by telling them during pre-trial.

[NDmock]

Well, right. I used to be a fan of introductions during openings, but I felt it was cheesy. It's especially comical during opening statements when the other two co-counsel stand, button their suit coats, and nod to the judge's as the opener names them. You're not there to brag to the judges about how awesome you are. When you introduce yourselves, there's a reason: so the judge knows who is who on their madly confusing comments sheet. It's really that simple, and it can be done simply by telling them during pre-trial.

I judged a high school round over the weekend in which counsel did the stand, button, your coat and nod thing.  Then all three (included the one who had made the introductions) all said -- in unison -- "GOOD MORNING, YOUR HONOR."  I stifled a laugh.

[Nur Rauch]

I judged a high school round over the weekend in which counsel did the stand, button, your coat and nod thing.  Then all three (included the one who had made the introductions) all said -- in unison -- "GOOD MORNING, YOUR HONOR."  I stifled a laugh.

I can't count the number of time I've heard:

"Yes your honor the [State/Plaintiff] did have a few pre-trial matters to attend to."

[Golden Skull]

You know you're an old-timer when you remember everyone bizarrely and unnaturally introducing themselves and colleagues about 1 minute into the opening.  I'm glad there was a culture change on that practice.

Me too! 

I could also stand a culture change from teams that feel the need have attorneys re-introduce themselves at the beginning of every element. 

It makes more sense to introduce yourselves in opening because the jury isn't present during pretrial. Our team has tried several times to make that point apparent (in an effort to make the opposing team appear ignorant) but thus far the point hasn't come across.

Although the whole concept of introducing oneself at all in odd because the jury would've already met you in jury selection.

Especially in light of your 3rd sentence, this seems like an attempt to take the 4th wall too seriously.

[mocksluzer]

I knew I remembered some sort of slightly-odd language in the rule! Thank goodness law school has not completely rotted my brain... yet.

You know you're an old-timer when you remember everyone bizarrely and unnaturally introducing themselves and colleagues about 1 minute into the opening.  I'm glad there was a culture change on that practice.

Wow, interesting to see I'm in the minority in my preference for introductions during the opening. Maybe that would explain my ignorance of this "culture change." Hmph.