Rules are Rules for a Reason, Part 7, Arguments

Judge Joseph F. Anderson Jr. compares oral argument with working a jigsaw puzzle. In working the jigsaw puzzle, it is helpful to see a picture of the puzzle to understand how the pieces will fit together. Both opening and closing arguments will help the judge understand how the piece of testimony and exhibits fit together to achieve a correct and just result. The Lost Art: An Advocate’s Guide to Effective Closing Argument. (South Carolina Bar—CLE Division (1998). My brother Clarkson explained to juries that opening argument was to tell the judge and jury what he intended to prove, and closing argument was to tell the judge and jury what he proved or what the opposing party failed to prove.

Rule 43(j), SCRCP, protects and guarantees the right to opening and closing arguments in civil trials. Unfortunately, Rule 2(a), SCRFC, excludes Rule 43(j)’s applicability to family court. Whether to permit opening and closing arguments is within the sole discretion of the trial judge. Foreman v. Foreman, 280 S.C. 461, 466, 313 S.E.2d 312, 315 (Ct. App. 1984); Clark v. Clark, 293 S.C. 415, 417, 361 S.E.2d 328, 329 (1987). Rule 2(a)’s exclusion of Rule 43(j) may be the exception to the title Rules Are the Rules for a Reason. Judges, lawyers, and litigants would benefit if the court restored the right to opening and closing arguments.

Prepare your opening and closing for each case, regardless of whether you will get to deliver them. By preparing a persuasive opening and closing argument, you force yourself to understand your case and how the pieces fit together. This will serve you and your client well throughout the trial, as you focus on relevant, important, and critical pieces of the puzzle while ignoring all that does not fit. Even if you do not ask for arguments, opposing counsel may, and you must be prepared.

Always ask the trial judge for permission to make a short opening and closing statement. You cannot win the lottery without a ticket, and you are not likely to get opening and closing arguments unless you ask for them.

Opening Argument

  • Explain what your client seeks and why. During her 20-year marriage, Ms. Smith did not work outside the home after the birth of the parties’ first child. She devoted her adult life to being a wife and mother. She excelled at both. She home schools five children maintains the home for Mr. Smith and their five children, and supported Mr. Smith’s career, contributing to his unquestioned business success. While she cared for the children and the home, Mr. Smith worked hard, achieved financial success, and was an excellent provider for her and the family. Ms. Smith seeks child custody, child support, alimony, equitable apportionment of property and debts, and attorney’s fees. This relief will maintain and replicate to the extent possible the status quo the parties achieved during their marriage.
  • Identify and explain the witnesses you will call. We will call six witnesses. Anne Anderson, another mother who homeschools, will testify to Ms. Smith’s work with the children, including field trips and projects on which they worked jointly. She will also corroborate the separation of the parties for one year. Bob Bentley, Mr. Smith’s former supervisor, will establish Mr. Smith’s success in business, the time he devoted to work, and how Ms. Smith helped promote his advancement. Cathy Counselor will testify to the emotional needs of the children, including their need for stability and continuity. David Drebec will testify to his appraisal and valuation of the marital estate. Ms. Smith will testify to all aspects of her case, including the history of the marriage, the separation, her financial situation, and the needs of her and the children. Earl English will testify as an expert witness on attorney’s fees, addressing the factors that entitle Ms. Smith to an award of attorney’s fees and the factors supporting the requested amount of attorney’s fees.
  • Explain what exhibits you will introduce. We intend to offer these exhibits: the academic testing results for the children, awards received by the children for their activities, photographs of the children and their activities, commendations and recognition Mr. Smith received for his work, the Social Security earnings statements of the parties showing their relative incomes during the marriage, an exhibit summarizing Mr. Smith’s overnight business trips, the appraisals of the real and personal property, the documents supporting Ms. Smith’s financial declaration, and my affidavit to support attorney’s fees.
  • If there are points in your trial brief the judge has not discussed with counsel, consider addressing these quickly, referring to your trial brief, to alert the judge to evidentiary problems or issues of law that may arise.
  • Keep it short, preferably under five minutes. The judge understands the law generally and is familiar with separation and divorce and the issues.
  • Avoid adjectives and adverbs, especially flamboyant or inflammatory adjectives and adverbs. The judge can add the adjectives and adverbs to his or her ruling. Do not overstate what you intend to prove. If you prove more than you promise, that is great. If you prove less than you promise, it may prove fatal.
  • Maintain a calm, pleasant, and reasonable demeanor, during arguments and throughout the trial. Lawyers frequently underestimate the effect of their demeanor on their case or fail to understand how an aggressive, overbearing, and hostile demeanor may undercut an otherwise strong case. If you believe theatrics win cases, consider a job in Hollywood or working for Donald Trump.

Closing Argument

  • Do not insult the judge’s intelligence by rehashing the entire trial. The judge heard the testimony and viewed the evidence, and may have noticed points you missed.
  • Pick several points, which may require connection or explanation, and limit your argument to those points. Possible examples:
    • Smith never argued that Ms. Smith was a bad or unfit father. She gave him credit for loving the children and being a good provider. She testified to the effect extended visitation would have on the children’s education and activities. Ms. Counselor provided her expert opinion on the most probable effects of disrupting the children’s schedules and continuity.
    • Smith was a good provider. He determined the standard of living for his children and Ms. Smith. We should not diminish the children’s standard of living because of this divorce. The testimony and tax returns established his ability to earn $______ gross monthly income. He can meet the needs of the children and Ms. Smith, although he may have to forgo some of his toys.
    • Smith was satisfied with the schedule, the homeschooling, and their respective roles as mother and father during the marriage. He even testified he wants to reconcile and resume the marriage. After leaving her career almost 20 years ago, Ms. Smith has no marketable job skills that would earn more than a minimum wage. Mr. Smith’s insistence she abandon the children’s homeschooling and get a job contradicts reality.
    • While many aspects of this case may appear routine on the surface, Mr. English explained some problems requiring more than routine work and trial preparation. Mr. Smith insisted on the appointment of a guardian ad litem when there should have been no issue as to fitness. He denied requests for admissions of fact regarding Ms. Smith’s fitness, his ability to earn $______ gross monthly income, the marital components of retirement plans, his superior financial ability to pay attorney’s fees, and the reasonableness of my hourly rate. My fee of $9,876 is fair, reasonable, and just. I earned it.
  • Again, keep it brief.
  • Do not attack opposing counsel, no matter how greatly counsel may deserve it. Likewise, avoid unnecessary criticism of the opposing party. The judge should have formed his or her opinion of the opposing party during your brilliant cross-examination of the opposing party and his or her witnesses.
  • Ask if there are other questions the court wants you to address. Offer to brief any issue of fact or law the judge wants addressed.

One more point favoring argument from Judge Anderson’s The Lost Art: An Advocate’s Guide to Effective Closing Argument. It’s fun!