By Dr. Ken Broda Bahm:
I have a few pet peeves. Some relate to language (don’t say “literally” when you mean “figuratively,” and don’t say “jive” when you mean “jibe”). Those I can live with. But a larger pet peeve that I have trouble living with relates to demonstrative exhibits in the opening statement. Or, more specifically, it relates to how frequently and how easily good demonstratives are yanked out of an opening statement because they are “too argumentative.” Listening to opposing counsel playing the “argumentative” card, I feel like repeating that line from The Princess Bride: “You keep using that word. I do not think it means what you think it means.” Though it is not inconceivable that a demonstrative could cross the line in various ways, I do think that the label “argumentative” has become a catch-all objection that really means something like, “that is a bit too effective,” or “that is likely to be persuasive,” or “I’d simply prefer that you not make the point in quite that way.”
Don’t make that objection. It just worsens the communication experience for both sides, and for jurors as well. But in addition, don’t be too quick to accept that objection or to self-censor before opposing counsel or a judge has a chance. Of course, there are reasons to be cautious: No one wants an objection to break the flow of their opening or, worse (but rare), to be reversed based on improper argument in opening. But there are also reasons not to be overcautious. Your opening statement is a precious opportunity to teach the case, and to set a tone. It may not determine the verdict, but it does often help jurors reach a durable first impression. Forswearing the use of good visual tools simply because they’re too good amounts to tying one arm behind your back. This post takes a quick look at what the “argumentative” objection means, or ought to mean, and shares a sample argument.
What is Argumentative?
We all know the legal standard: An opening statement is not evidence, it is just a preview of the evidence. That distinction, however, can quickly break down once you get past the simple analogies of pictures on the top of a puzzle box and such. While there isn’t a great deal written on what “argument” means in opening statement, I did find a couple of articles that both voice a common theme: It isn’t very clear.
University of North Dakota law professor Michael Ahlen (1995), for example, notes that “argumentative” is the most common objection raised in opening statement, and yet American courts have not provided clear guidance on what constitutes improper argument. It appears that the objection for arguing is a catch-all for any improper remark.” Pepperdine law professor Timothy Perrin (1999) agrees: “Surprisingly, this most fundamental question — ‘What does it mean to argue in the opening statement?’ — has never been subjected to serious in-depth analysis. Despite over a 100 years of practice under its limits, the meaning of argument within the opening statements is one of the least analyzed or understood principles of trial practice.”
While on face, the rule “forbids advocates from interpreting the evidence for the jury by drawing conclusions or inferences from facts,” that is often defined in the negative, as forbidding anything other than the proper goal of explaining (but not arguing) what one’s own case will be. Perrin writes of the “witness test,” meaning that advocates may only discuss evidence based on a good faith belief that it will be admitted in trial. But that is not much of a limit given the broad parameters of what a witness may testify to.
In practice, the rule is more honored in the breach. Based on a content analysis of openings from a number of high profile trials (e.g., California v. Simpson, U.S. v. McVeigh, Minnesota v. Phillip Morris), Perrin finds that argument is rampant, rarely brings an objection, and the objection is generally not sustained. “The findings suggest that the rule against argument fails miserably in eliminating argument from the opening statement. At the same time, however, the rule overwhelmingly succeeds in confusing lawyers.”
Based on that confusion, lawyers default to trying to apply the rule during the one time they safely can: before opening when reviewing disclosed demonstrative exhibits. But if the meaning of “argumentative” is indeterminate when applied to verbal utterances, how much less clear is it when applied to visual communication? In that context, the objection just breaks down to a way to limit the other side’s flexibility. That of course would be a good idea only if you weren’t simultaneously limiting your own.
Unfortunately, that is just what the broad and imprecise use of “argumentativeness” does when applied to opening statement demonstratives. Instead of sticking to bland documents and descriptive timelines, advocates need to fight for effective visual communication during opening. Here is an example of how that fight might go.
A Sample Argument Over Argumentativeness
The Case: A chemical company sold a herbicide chemical (we’ll call it ‘Orthvan’) to a third party who used it, causing high levels of crop damage to nearby farmers when the chemical moved off target. Part of the plaintiff’s argument was that the chemical had known dangers which were not fully disclosed to either the third party or to those who were in harms way.
The Demonstrative: For simplicity’s sake, let’s just focus on one demonstrative making the basic point that this advanced chemical is much more potent than other chemicals jurors might know and use. The accurate version actually was scrapped from an opening for being too argumentative.
(Click to see full sized image)
The Objection:
Your honor, a thousand skulls and crossbones? This is clearly argumentative and clearly prejudicial. The inference is that it is too deadly to be on the market. They can put an expert on the stand and explain the toxicity, and they can argue in closing that we’re the worst thing since plutonium, but it is improper in an opening statement.
The Response:
Your honor, I disagree. The purpose of opening is to preview evidence and this previews evidence. As disclosed in the expert report, we will have a witness who will testify to this basic factual ratio. I think it is well-established that people will understand a comparison like this better visually rather than just verbally. And the skull and crossbones is a universally understood symbol for toxicity — that’s why they use it on their own label! The bottom line, your honor, is that this is a clear and visual way to preview a relevant point in this case. The fact that opposing counsel does not like it is not grounds for an objection.
Depending on the judge, a response like that may or may not prevail. In the end, the whole exchange might not seem worth it: It isn’t a game winner for the plaintiff to use it, and it isn’t fatal for the defense to allow it. The defense could even minimize it by saying, “All this shows is that the chemical is concentrated…and that the Plaintiff is trying to scare you.” In the end, just doing your own good job of persuading verbally and visually is a better course than complaining about their opening arguments or visuals. Don’t whine, but also don’t give up too easily when they whine.
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Other Posts on Demonstrative Exhibits:
- Don’t Panic Over Visual “Truthiness”
- Follow the Ten Commandments of Graphics Use in Trial
- Don’t Just Display Graphics, Interact With Them
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Ahlen, M. J. (1995). Opening Statements in Jury Trials: What Are the Legal Limits. NDL Rev., 71, 701.
Perrin, L. T. (1999). From OJ to McVeigh: The Use of Argument in the Opening Statement. Emory LJ, 48, 107.
Photo Credit: frotzed2, Flickr Creative Commons. Demonstrative exhibit created by Pam Miller, Persuasion Strategies.