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Yesterday, I introduced you to the book, “Opening Statements”, and it seemed worthwhile flipping further through the yellowing pages of the copy I pulled off the shelf.

Quoting Al Julien again:

In no branch of law is the opening statement of greater consequence than in the defense of criminal cases. Nowhere is it more neglected. And a strong opening is especially important where it is anticipated that the defendant himself will not take the stand. The opening in such a case presents an opportunity for limited substitute testimony, running no danger of cross examination.

Now, I have never delivered an opening for the defense in a criminal case, the only criminal defendants my partner and I are willing to represent are cooperators. However, I have certainly heard more than my fair share of them. There are several classic criminal openings (kind of like famous opening moves in chess) and a good defense lawyer will pick from them like a Chinese food menu, putting together a tasty meal for his client.

Of course, said defense lawyer would prefer that we all believe these brilliant gambits sprung fresh and new from his own mind rather than being recycled chestnuts, but I thought you all would like a peek behind the curtain.

First of all, even more than with the prosecution’s opening, the defense Opening Statement anticipates the summation. Although it used to be considered rude to interrupt opposing counsel during opening or summation, many good defense openings will draw the objection from the prosecution that “the defense is summing up”.

The emotional tone of a defense opening is very different from the prosecution. The prosecution’s opening should demonstrate that the prosecutor is a neutral party representing only the people of the United States and the rule of law. The prosecution’s tone may tinge on the sorrowful, like a parent disappointed in a wayward child.

The defense however, especially in white collar cases, often seems to have only one emotional speed: Seemingly sputtering (but actually quite eloquent) indignation. Shorter version, “how dare the prosecution even suspect a man like my client, a man of position, a man of good reputation, a man who enjoys the trust of the rich and powerful, of, of , of……anything!”

The implied message, conveyed in body language and tone, is what nerve this prosecutor, this lowly civil servant, has (he must be jealous of my client’s high status) to even cast his eyes in my client’s direction.  "My client is innocent and the prosecution has no facts, only his class bias and goody-two-shoes standard of right and wrong that comes from working in an ivory tower like a US Attorney’s Office and living on a budget his whole life. He doesn’t understand that the rules are different on Mt. Olympus where my client works and lives.”

When SDNY under Giuliani did the series of Wall Street cases, you heard this over and over. It was hilarious. “The rules are different”, “the pressures are different”, “unless you have lived it you can’t understand.” Watch for it folks.

The defense has several ways to attack during the opening. Here are some of the greatest hits:

"The defense is going above and beyond what it is required to do." This is a nice theme to set up on opening. For instance, though it is a rare defense lawyer that has the guts to forgo opening at the earliest possible moment because he does not want the prosecution to have a clear path to winning over the hearts and minds of the jury, they like to turn their eagerness to open early into an advantage, rather than a show of fear. "As the judge (or prosecution) has already told you, I have no obligation to address you at this early stage in the trial and may sit in my chair and force the government to offer proof as to each element of his case before I lift a finger to show why the government is wrong. Instead, I am eager to address you at the earliest moment because my client has been fighting for two years now to tell you what really happened and how the prosecution has accused the wrong man."

See what a great guy the defense lawyer is? He is not going to leave the jury on tenderhooks, wondering and speculating about his defense. Even though he just contradicted the part where he said the prosecution couldn’t prove its case. But hey, hypocrisy is not a valid objection in court.

"My client didn’t say what the transcript (confession) says he said." This is a classic normally used with cases where the defendant has given a written or taped confession. The first thing that defense does is claim that the defendant was not in his best state of mind when he gave the confession. Normally this takes the form of claiming coercion, in Irving’s case it takes the form of the “memory defense”. The second is to claim that the government should have known this because the confession itself is internally inconsistent and therefore demonstrates that the defendant didn’t know what he was saying. The third is to claim that the confession does not fit with the other “hard” evidence in the case and therefore should be ignored. In the case of a perjury case of this kind where the statement contradicts the other known facts, the defense is going to do a twist on this by going back to the “wrong man” theory we had at the beginning.

It is about here in the opening that the defense will likely claim that this is really a case of Team Fitz mishandling the case and failing to investigate other persons suspected of the crime. Why? Because every defense opening includes this accusation. It’s SOP. We know that the defense will say that this case is really about outing a spy and that Armitage is the guilty man. (WRONG! THIS CASE is about lying to the Grand Jury, to the FBI, and about obstruction of justice. . . . Ooops, sorry for the digression.)

"We will investigate this together." The defense lawyer, having accused the prosecution of botching the investigation and having brought the wrong man to the dock, now enlists the aide of the jurors in solving, not the crime in the indictment, but solving the mystery of how the prosecution screwed up so badly.

This was used to tremendous effect during the OJ Simpson trial. The murderer was not on trial, the police and prosecutors were. This is also a great way to get the jurors on “your side.” Petit (trial) jurors are often frustrated because they cannot ask questions and are often left wondering about many things that are never explained. They know that the prosecution’s job is to lay things out for them. By asking the jurors to help with the investigation, the defense transforms the jurors from passive onlookers to active participants. Suddenly any question left unanswered, no matter how irrelevant, is reason to suspect the prosecution has fouled up.

"I am not a criminal defense lawyer therefore my client is not a criminal." This is a favorite among white collar and public corruption cases. Sometimes you will see the defense lawyer deny who he is 3 times before the cock crows. Most white collar defense lawyers also do some commercial or corporate work, because you need to know commercial and corporate law in order to defend these kinds of cases. So the defense lawyer will introduce himself as coming from a firm that does primarily corporate or commercial practice, thereby implying that his client doesn’t even know or consort with the kinds of lawyers who do criminal cases. It is also useful for inoculation purposes if the defense lawyer makes a calculated decision to breach the Rules of Evidence or Criminal Procedure and the prosecution’s objection is sustained by the judge. The defense lawyer apologizes for his unfamiliarity or rustiness with these rules and draws sympathy for his client rather than outrage at his cheating.

Undermining the prosecution’s witnesses. I suspect this will receive prominent play in the Libby trial. Each of the government’s witness can expect to be attacked on credibility. This does not always take the form of calling them a liar. It may be an attack on their good faith recollection. Yes, lots of folks will be said to have misremembered before this trial is over. There may be attacks on the witness’s motivation either to lie or to remember things the way the witness wishes it to have been. There may be suggestions that some of the government’s witnesses ought to be the person on trial rather than the defendant. All standard stuff, heard every day in criminal courts all over the U.S.

Where will Irving sit? A last thought about opening day; while this is not strictly part of the Opening Statement, it will be a visual part of the opening and perhaps the rest of the trial. The positioning of the defendant in the courtroom is a critical element of the defense strategy. If the defendant is slimy or scummy looking, you try to position him as far away from the jury as possible and put a big lawyer or paralegal in front of him to block the jury’s view. If, however, your client is respectable looking and the jury already knows he is himself a lawyer, you put him in between two members of the trial team and let him keep busy making notes.

It makes him look earnest and studious and enforces the idea of the team working together to figure out how the prosecution screwed up so badly –you know that team that the defense want to recruit the jury to? This also helps the defendant avoid showing annoyance or pique on his face. Sometimes, if the defendant comes off as cold, they will reposition him in the first row of the gallery, sitting with his family, maybe holding hands with his loving wife.

Before I went to law school, I worked as a litigation paralegal for a white shoe NY firm to see if I really wanted to enter the practice of law. Anyway, we had this breach of contract case. Our client was the most gorgeous blond god of a man you ever saw. Problem was, he was way pissed off that he had to sue to get what was rightfully his and kept scowling at the defense. My job in that trial was to sit in the front row of the gallery with him (they kicked him off the plaintiff’s table after the first day) and make him keep a poker face. I brought in a book of Irish history from home for him to read because the binding looked like a law book. We played countless games of hangman on a yellow legal pad because it looked like we were comparing notes. Periodically, I would just resort to pinching him as hard as I could while whispering “look benign, goddamit.”

It worked, we won. We ran into some jurors by the elevators afterwards all of whom thought I was his wife and all of whom complimented us on what a lovely couple we made and how much sweeter we seemed than the cranky man who was the defendant. Shorter version = Body language throughout the trial counts SOOOOO much.