Order of Trial - Opening and Closing statements: When and how to make them.
Before any evidence is offered, the attorney for the plaintiff and the attorney for the defendant have the right to make opening statements.[1]
At the close of all the evidence on the issues tried, the attorneys for each party have the right to make closing statements in inverse order to the opening statements.[2]
The party holding the affirmative upon an issue of fact has the right to open and close the proof at the trial, and to reply in summing up the case to the jury. This is regarded as a legal right, not within the discretion of the court. [3] It is a substantial right, the denial of which is error.[4]
The party who has the burden of proof has the right to open and close[5] and normally is obligated to complete his prima facie case before the opposing party must present his proof. The adverse party side then produces his evidence, following the same procedure for examination and cross-examination of witnesses. The party who first produced his evidence may sometimes produce evidence in rebuttal of his opponent’s case.[6]
The party who has the affirmative of the issue has the right to open first and close last.[7]
In non-jury matrimonial matters, it is customary for the court to ask the attorneys for the parties if they want to waive opening statements and they usually waive them. This is a tactical decision. If the trial judge is new to your case it is recommended that the party with the affirmative make an opening statement in order to familiarize the court with the case.
The party having the burden of proof should never waive the right to make an opening statement as it gives counsel the opportunity to paint a positive picture of his client, allows counsel to put his case in the proper perspective and to convince the court of the correctness of his client's position.
In the opening statement, counsel should explain to the court the facts that you intend to prove. All of the elements that you need to prove to establish a prima facie case should be mentioned in your opening statement. The statement should draw the attention of the court and should be told in the form of a story.
At the close of the case, counsel should make a closing statement, which is usually referred to as "summation.” In your summation, you should refer to your opening statement and specify the facts that you have established. You should then relate the facts you have established to the law and summarize your requests for relief.
Statements made by an attorney in his opening statement have been held to be a judicial admission.[8]
[1] Civil Practice Law and Rules 4016.
[2] Civil Practice Law and Rules 4016.
In Matter of Bond v Bond, 93 A.D.3d 1100, 940 N.Y.S.2d 705 (3d Dept.) a custody modification proceeding, the Appellate Division rejected that the father's contention that Family Court's error in failing to afford him the opportunity to make a closing statement required reversal. At the conclusion of the fact-finding hearing, the father's counsel stated that he wished to make a short closing statement only if the mother did so, and the court indicated that arrangements would be made following the Lincoln hearing. The mother subsequently submitted a written closing statement; the father neither responded to this submission nor requested a further appearance, and more than four weeks passed before the decision was rendered. Considering these circumstances, and that the court was fully familiar with the facts of the case as well as the parties' arguments, no reversible error occurred.
[3] Heilbron v Herzog, 165 NY 98 (1900)
[4] Lake Ontario Nat. Bank v Judson, 122 NY 278 (1890) (citing Conselyea v. Swift, 103 N. Y. 604.)
[5] Lake Ontario Nat. Bank v Judson, 122 NY 278, 25 NE 367 (1890).
[6] Sequin v Berg, 260 AD 284, 21 NYS2d 291 (1940)
[7] See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-202.
In Lohmiller v Lohmiller (1988, 2d Dept) 140 App Div 2d 497, 528 NYS2d 586, although the trial court erred in refusing to permit the husband's attorney to make an opening statement, reversal was not warranted because the court was familiar with the contentions of the parties.
In Matter of Sagese v Steinmetz, 83 A.D.3d 1144, 921 N.Y.S.2d 360 (3d Dept., 2011), a custody proceeding, the Appellate Divison rejected the father’ argument that Family Court committed reversible error by denying the father the right to present an opening statement. While a party to a civil proceeding has the right to make an opening statement, it found that Family Court's error did not require reversal since the court was fully familiar with the facts of the case, the parties and their respective arguments through the numerous court appearances during the year prior to trial.
[8] See Kosterek v Kosterek, 107 A.D.3d 762, 968 N.Y.S.2d 97 (2d Dept., 2013)
Before any evidence is offered, the attorney for the plaintiff and the attorney for the defendant have the right to make opening statements.[1]
At the close of all the evidence on the issues tried, the attorneys for each party have the right to make closing statements in inverse order to the opening statements.[2]
The party holding the affirmative upon an issue of fact has the right to open and close the proof at the trial, and to reply in summing up the case to the jury. This is regarded as a legal right, not within the discretion of the court. [3] It is a substantial right, the denial of which is error.[4]
The party who has the burden of proof has the right to open and close[5] and normally is obligated to complete his prima facie case before the opposing party must present his proof. The adverse party side then produces his evidence, following the same procedure for examination and cross-examination of witnesses. The party who first produced his evidence may sometimes produce evidence in rebuttal of his opponent’s case.[6]
The party who has the affirmative of the issue has the right to open first and close last.[7]
In non-jury matrimonial matters, it is customary for the court to ask the attorneys for the parties if they want to waive opening statements and they usually waive them. This is a tactical decision. If the trial judge is new to your case it is recommended that the party with the affirmative make an opening statement in order to familiarize the court with the case.
The party having the burden of proof should never waive the right to make an opening statement as it gives counsel the opportunity to paint a positive picture of his client, allows counsel to put his case in the proper perspective and to convince the court of the correctness of his client's position.
In the opening statement, counsel should explain to the court the facts that you intend to prove. All of the elements that you need to prove to establish a prima facie case should be mentioned in your opening statement. The statement should draw the attention of the court and should be told in the form of a story.
At the close of the case, counsel should make a closing statement, which is usually referred to as "summation.” In your summation, you should refer to your opening statement and specify the facts that you have established. You should then relate the facts you have established to the law and summarize your requests for relief.
Statements made by an attorney in his opening statement have been held to be a judicial admission.[8]
[1] Civil Practice Law and Rules 4016.
[2] Civil Practice Law and Rules 4016.
In Matter of Bond v Bond, 93 A.D.3d 1100, 940 N.Y.S.2d 705 (3d Dept.) a custody modification proceeding, the Appellate Division rejected that the father's contention that Family Court's error in failing to afford him the opportunity to make a closing statement required reversal. At the conclusion of the fact-finding hearing, the father's counsel stated that he wished to make a short closing statement only if the mother did so, and the court indicated that arrangements would be made following the Lincoln hearing. The mother subsequently submitted a written closing statement; the father neither responded to this submission nor requested a further appearance, and more than four weeks passed before the decision was rendered. Considering these circumstances, and that the court was fully familiar with the facts of the case as well as the parties' arguments, no reversible error occurred.
[3] Heilbron v Herzog, 165 NY 98 (1900)
[4] Lake Ontario Nat. Bank v Judson, 122 NY 278 (1890) (citing Conselyea v. Swift, 103 N. Y. 604.)
[5] Lake Ontario Nat. Bank v Judson, 122 NY 278, 25 NE 367 (1890).
[6] Sequin v Berg, 260 AD 284, 21 NYS2d 291 (1940)
[7] See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-202.
In Lohmiller v Lohmiller (1988, 2d Dept) 140 App Div 2d 497, 528 NYS2d 586, although the trial court erred in refusing to permit the husband's attorney to make an opening statement, reversal was not warranted because the court was familiar with the contentions of the parties.
In Matter of Sagese v Steinmetz, 83 A.D.3d 1144, 921 N.Y.S.2d 360 (3d Dept., 2011), a custody proceeding, the Appellate Divison rejected the father’ argument that Family Court committed reversible error by denying the father the right to present an opening statement. While a party to a civil proceeding has the right to make an opening statement, it found that Family Court's error did not require reversal since the court was fully familiar with the facts of the case, the parties and their respective arguments through the numerous court appearances during the year prior to trial.
[8] See Kosterek v Kosterek, 107 A.D.3d 762, 968 N.Y.S.2d 97 (2d Dept., 2013)
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
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The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
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This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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