Sidebar: opening statement rules

📄 Sidebar: opening statement rules — Wednesday, October 23, 1996

Address:

C:\DEPT103\CIVIL\1996\OCT\23\SIDEBAR-OPENING-STATEMENT-RULE.DOC

TRIAL

▲ Day 1 of 57

◀ Opening statement — Plaintiff's counsel (part 1) Opening statement — Plaintiff's counsel (part 2) ▶

Date: Wednesday, October 23, 1996 • Utterances: 38

Before opening statements, Baker objected to Petrocelli's plan to address defense contentions (specifically the 'long struggle' timeline theory and conspiracy claims) during his opening. Judge Fujisaki ruled that Petrocelli could present his own evidence and raise hypothetical defense positions, but could not presuppose or state Baker's actual defense strategy. Fujisaki ultimately sided with Baker after initially seeming open to a hypothetical framing, telling Petrocelli to save rebuttal arguments for closing.

# 1 (The following proceedings were held at bench:)

# 2 MR. PETROCELLI:

One of their critical positions in this case is that there was a long struggle.

# 3 THE COURT:

My question to you was: Was there a contention interrogatory that was responded to, to that effect?

# 4 MR. BAKER:

Absolutely.

# 5 MR. PETROCELLI:

I don't have it. Mr. Baker won't disavow that that's not his position. He's just trying to say that he can't discuss it, even though it's a contention.

# 6 MR. BAKER:

Don't say what my --

# 7 THE COURT:

Go ahead.

# 8 MR. BAKER:

It's my position, in opening statements, they can show what their evidence is going to present. They cannot argue that the evidence or contention that we say is our case is ineffectual. That's not opening statement. Opening statement is what their case is, what their evidence is going to prove, what they have a burden of proving. It is not to rebut what our position may or may not be at the time of trial. And for him to do that, it then becomes argument. And he's got to, in my opinion, save that for the conclusion of his case.

# 9 MR. PETROCELLI:

Your Honor, a good part of my opening is going to be devoted to addressing the defense contentions. One is that there's a long struggle and the time was insufficient to that there was a conspiracy.

# 10 THE COURT:

Mr. Petrocelli, you may, in your opening statement, state it in a form that if it is a -- if it is going to be a contention that there was insufficient time or defense will show thus and thus and so on, but I think it would be improper to presuppose that Mr. Baker is going to offer any particular evidence on any particular subject raised by his contentions. You may raise it as a hypothetical in affect and you may state the evidence that you are going to offer that a contention is made as to this. Or any contentions made to that. You cannot say that he is going to actually raise that as a contention.

# 11 MR. PETROCELLI:

In this case, they're going to put on an expert that will say that the struggle took 15 minutes.

# 12 THE COURT:

Mr. Baker may decide not to call this man at all.

# 13 MR. PETROCELLI:

Then I'd like to be able to say that if the defense offers evidence that the struggle was wrong, then I would like to go on.

# 14 MR. BAKER:

With great respect, I think he has to. He can say that the evidence will show it doesn't take 10 to 15 minutes, but he can't start presupposing what I'm going to put on. He can say all he wants about why it took a minute or anything like that.

# 15 THE COURT:

Mr. Petrocelli, I'm a sympathetic person to the defense position. You're trying to shape his argument and shape his presentation of his case and I don't think that's appropriate.

KEY QUOTE

# 16 MR. PETROCELLI:

We're going to get into this on the planning and conspiracies. I intend to show that there's no evidence at all to support any of those issues, Your Honor. I mean, that's what he's been talking to the jury about for 30 days.

# 17 THE COURT:

This is opening statement. You're going to be setting forth what your evidence is going to be.

# 18 MR. PETROCELLI:

I would also like to point out that there will be no evidence presented with respect to other.

# 19 THE COURT:

You don't know that.

# 20 MR. PETROCELLI:

I do know that from the interrogatory answer that there will be no evidence presented, for example, there were two gloves at Bundy. There will be no evidence presented.

# 21 THE COURT:

You may state that.

# 22 MR. PETROCELLI:

Those are the kind of things.

# 23 THE COURT:

But you cannot state Mr. Baker's defense.

# 24 MR. PETROCELLI:

I'll try to.

# 25 MR. BREWER:

If we say defense may contend the following then we can address that in opening statements.

# 26 THE COURT:

No, I think Mr. Baker's right. I think you cannot state what his defense is going to be.

# 27 MR. BREWER:

If it's raised in a hypothetical form.

# 28 THE COURT:

No, I don't think so because --

# 29 MR. BREWER:

I THOPBLG> thought you said if he raised it in a hypothetical form.

# 30 THE COURT:

I think Mr. Baker convinced me otherwise.

KEY QUOTE

# 31 MR. PETROCELLI:

That's the big part of the case, that the struggle was 10, 20 minutes. Can I introduce that was their position that there was struggle, lasted long enough to say that Simpson couldn't be the person and I want to demonstrate why the evidence is such and so you have to understand the context in which I'm talking about this? They don't understand the context if I can't say it was fighting around and at 10:35 that there was a 20 minutes fight. There's no way it could be.

# 32 THE COURT:

You can save it for your closing argument. You wanted to -- want to explain to the jury what evidence you are going to offer, you may. And you can state it for the purpose of showing that the struggle lasted only such and such a minute. But your front loading this and I don't think that's appropriate because we haven't heard any evidence yet.

KEY QUOTE

# 33 MR. PETROCELLI:

We do have his specific contentions in this regard.

# 34 THE COURT:

I understand that.

# 35 MR. PETROCELLI:

Including the timing which I don't have with me but I can show you after lunch.

# 36 MR. BAKER:

That' not the issue.

# 37 MR. PETROCELLI:

I'll move forward on this point for now.

# 38 THE COURT:

Okay. Thanks.

Temperature

tense

Key Quotes (4)

Robert Baker

It is not to rebut what our position may or may not be at the time of trial. And for him to do that, it then becomes argument.

Baker's core objection — distinguishing proper opening statement from premature closing argument

Hiroshi Fujisaki

Mr. Petrocelli, I'm a sympathetic person to the defense position. You're trying to shape his argument and shape his presentation of his case and I don't think that's appropriate.

The judge explicitly tells Petrocelli his strategy is improper

Hiroshi Fujisaki

I think Mr. Baker convinced me otherwise.

Fujisaki visibly reverses his earlier tentative allowance of hypothetical framing, fully adopting Baker's position

Hiroshi Fujisaki

You can save it for your closing argument.

Final ruling: Petrocelli cannot front-load rebuttal of defense theories in opening

Evidence (2)

Informal

Contention interrogatory answers establishing defense position on struggle duration (10-15 minutes)

discussed

Informal

Two gloves at Bundy — Petrocelli states interrogatory answers confirm no evidence will be presented on this

discussed

Notable Exchanges (2)

Michael Brewer•Hiroshi Fujisaki

Brewer attempted to salvage Petrocelli's approach by suggesting hypothetical framing ('if we say defense may contend...'), but Fujisaki shut it down after Baker persuaded him

strategic

Daniel Petrocelli•Hiroshi Fujisaki

Petrocelli pushed back repeatedly, arguing the struggle timeline was central and jurors needed context; Fujisaki repeatedly told him to save it for closing

tense

Objections

None recorded

Proceeding 7992 • 38 utterances

Civil Trial

Department 103